And it's the first good news in a while. Obama of course signed those pretty decisive and heartening executive orders his first day in office - ordering the closure of Guantanamo, the suspension of kangaroo trials there, and the shutting down of CIA black sites around the world. But since then his Justice Department has taken some shockingly Cheney-ite positions on terror, detention and civil liberties issues: invoking the state secrets privilege, as the previous administration did, to try to shut down a lawsuit from former detainees; upholding the Bush position that detainees at Bagram in Afghanistan have no right to challenge their detentions; and working to shield Bush's NSA warrantless wiretapping program from judicial review.

Civil liberties advocates, many of whom expected that Obama would not fulfill their every wish, have sounded nonetheless genuinely taken aback by the whole-hog adoption of Bush legal positions - especially because, in both the state secrets and the Bagram cases, the government's position was nothing more than a couple of sentences submitted to a court affirming support for the previous administration's position. The administration has not offered any deeper explanations for its stances.

But there's good news today. Ali Saleh Kahlah al-Marri, the last "enemy combatant" detained without charges within the United States - and the subject of a great Jane Mayer piece in this week's New Yorker - will face terrorism charges in a civilian court:

...the decision is a demonstration that Obama administration officials believe the nation's civilian courts are capable of handling some terrorism cases.

Such a belief ought to elicit a collective "Duh!" from everyone - as civilian courts have always handled terrorism cases. But note the word "some." In what we're now coming to recognize is a classic Obama move, the decision leaves the door open on the thorniest question:

The decision also would allow the Obama administration to avoid taking a position for the time being on whether a president may detain legal residents indefinitely without trial.

Still, this is really great news. The Obama administration may not be saying that legal residents can't be detained indefinitely without trial...but at least it's saying this detainee won't be. One hopes the latter is a step toward the former.

Now, there's no question this case is a tough one, but it bears emphasizing that the problems the government may face in prosecuting Marri do not demonstrate the inherent problems of prosecuting suspected terrorists in civilian courts, but rather the obstacles to such prosecution introduced into the equation by the Bush administration. According to Mayer, government lawyers who were preparing to prosecute al-Marri felt they had a pretty "solid" case...but then the Bush administration stepped in days before arguments were to begin in June 2003 and transferred Marri to the Navy brig in South Carolina.

Before agreeing to transfer Marri to the brig, however, the presiding judge in the case ruled that the White House would be barred from charging Marri again with the same crimes. In legal jargon, the original charges were "dismissed with prejudice," to protect Marri's right not to be placed in "double jeopardy." As a result, if the Obama Administration decides to charge him in the criminal system now, it has to bring a different set of charges, unless Marri's lawyers offer a deal. [James] Benjamin, the former [federal] prosecutor, insists that "there is a whole bag of tools for dealing with truly bad guys--there are many other statutes that the government could explore, including material support of terrorism, conspiracy charges, and mail- and wire-fraud charges." But, he suggests, by taking Marri outside the regular criminal system "there's no doubt they made all kinds of problems for themselves."

This is a point that's usually lost in debates over Bush terror policies. The argument against indefinite detentions and torture isn't that they degrade our moral standing and poison our national principles even if they keep us safer. It's that they degrade our moral standing and poison our national principles AND they make us LESS safe. But it's clear that part of the Bush administration's rationale for breaking free of the criminal justice system was precisely to insure that the possibility of a traditional trial would never be an option. Writes Mayer,

Andrew McCarthy, a former federal terrorism prosecutor who writes for National Review, defends Marri's transfer to the brig. "Sure, the criminal-justice system, by permitting Marri's pretrial detention, neutralized him, at least for a time," he says. "But there's always the chance the court will release a defendant on bail." Moreover, he argues that open criminal trials run many risks, including the accidental, or oblique, disclosure of classified information. It's also unclear how to handle witnesses who may themselves be terrorists: they may demand immunity before they will talk. Or it may be that their testimony was obtained by unsavory means, which could scuttle a conviction.

Certainly it's no surprise that there are many prosecutors who feel that defendants' rights ought to be curtailed. But logic like McCarthy's is cruelly twisted: evidence obtained by torture is inadmissable, but rather than not torture people, we'd better just forgo trials altogether and lock up all the suspects forever.

More broadly, the argument from McCarthy and all those who insist civilian courts can't handle terrorism suspects is, at its root: We can't try them because there's a chance we'll lose. But this is an argument that can be made about any trial. It's a short hop skip and a jump from making this argument about terrorism prosecutions to making it about all cases involving crimes we find particularly reprehensible. After all, we could try a case against a suspected child molester, but wouldn't our children be safer if we just locked the suspect up - you know, just to be safe?

If the lawyers and politicians and pundits and former Bush officials want to make the argument to the American people that the criminal justice system needs to be modified so that in some cases, the government can substitute its own judgment for a fair trial, they should make that argument. How anyone can possibly have faith that the government "knows" that some of its detainees are "bad guys" - given how much else the government has "known" over the last eight years - is beyond me. But hey, let's have the debate.

But let's not pretend that terrorism cases are inherently harder to prosecute in civilian courts than other cases. I don't like the idea of trying and releasing someone who may be guilty or dangerous any more than the next guy. But if that happens, let's not make the mistake of blaming Obama for giving them trials. If police misconduct in a murder case taints the evidence, prosecutors don't get just to keep the suspect locked up for fear of losing their case. If we have to let dangerous men go free, it will be because of the poor judgment, bad decisions, and extralegal shenanigans of the Bush administration.