Daphne Eviatar takes a close look at the Obama-era military commissions. Short answer: still Calvinball.

The case of al Qosi, now being heard before the new military commission, highlights the sorts of problems that lawyers say are likely to come up in many military commissions trials. Most importantly, they include a range of constitutional challenges to the new military commissions law itself, from whether its jurisdiction inappropriately extends beyond war crimes to include ordinary criminal acts, to whether the law’s permissiveness about the use of hearsay evidence against terror suspects violates their rights to confront and cross-examine the witnesses against them.

Although the case has been pending for almost six years now, at a hearing earlier this month, the government announced for the first time that it wanted to add more charges against al Qosi alleging he participated in a conspiracy with al Qaeda dating back to 1992. That’s also the date that Osama bin Laden allegedly began urging others to attack the United States, according to a U.S. criminal indictment of bin Laden. If the government can show that al Qosi participated in the conspiracy dating back to that time, then he could be held responsible for all of the crimes it committed between 1992 and 2001, when he was captured.

Legally speaking, it gets even more baroque from there, so you’ll want to read all of Daphne’s piece for the full flavor. I would only add that there are still no rigorous conditions to explain why some detainees get tried in military commissions and others get tried in federal courts. David Kris and Jeh Johnson have said they’ll err on the side of the civilian courts. But why you could try KSM in civilian court but not al-Qosi — well, this case explains why: you need to afford less process in order to secure a conviction, because there’s simply not enough evidence to convict al-Qosi; and there’s a lot of evidence to convict KSM.

This is the fundamental error of Obama’s civil-liberties backsliding. The country, I’d conjecture, would tolerate a president saying: You know what? Now that my team has looked in detail at all of the Guantanamo cases, I see that the Bush administration fucked this up even worse than I thought. We’ve been holding people at Guantanamo on pretty flimsy evidence. Some of them may be bad people. Some of them may not be. Some of them are probably pretty pissed at the U.S. for detaining them unjustly. But I’m not going to continue to pervert the rule of law because Bush panicked, as most of us did, after 9/11. And I’m really not going to do that to cover up the initial error. Guess what, America: some of these men are innocent, even if they’re not angels. We have to deal with that. I wish it wasn’t the case, but it is.

But instead Obama took the coward’s way out. Which is no way “out,” only a way deeper into the morass.