Security concerns aside, the White House has been at pains to underscore its firm belief that a jury will return a verdict of ‘guilty’. Meanwhile, those detainees deemed too dangerous for release and too difficult for prosecution will continue to be tried before private military tribunals, in spite of the President’s January 22nd Executive Order 13492 which called for their immediate suspension. All this begs the question, why bother making a point about the efficacy of the criminal justice system if you’ve decided the trial’s outcome before it’s begun? After all, presumption of innocence is a foundational part of that system and hence, the opportunity to avail oneself of such system would seem rather the point. What’s more, if public trials are only workable on an ad hoc, when-we-feel-like-it basis doesn’t that undermine the message about their suitability as the proper forum for criminal proceedings?

In spite of its repeated efforts to turn the page on Bush-era policies, the Obama administration has continually found itself at the mercy of political pressure forcing it to curtail its plans somewhat. Even as it signals a new chapter in America’s ‘moral leadership’ abroad, the administration is finding it difficult to navigate the terrain, making some previously undesirable policy options, necessary evils in the pursuit of some presumably greater good. The two-tiered trial system announced by Holder is merely the last in a series of such decisions. It recalls the President’s speech at the National Archives in March on the administration’s revised detention and interrogation policy, where he elucidated several detainee categories, among them those individuals who required so-called ‘preventive detention’ since they are considered dangerous, but impossible to convict. This brings us back to the current debate over terror trials. Like the Bush administration, who believed that terrorists were not normal criminals and hence, should not be tried as such, the Obama administration has reluctantly continued a policy of military tribunals, faced with the hard reality that extending the right to public trial to every detainee would be politically precarious. This inconsistency of rhetoric and reality, between alleged justice and the awkward half-measures actually being implemented undermines the sincerity of this effort. Indeed, if their intention was to reinvigorate faith in the criminal justice system to dispose of criminals, they’ve done just the opposite.

Immigrants, of course, aren’t the only victims in this story. Law enforcement has been hard-pressed to keep up with the growing influx of ‘criminal-aliens’ since the 1980s. In its effort to reign-in the overflow, the Departments of Homeland Security and Justice have turned to private firms, at the expense of struggling rural towns. These corporations have come under fire in recent days with the unfolding story of Michael Hinton – an ex-con caught defrauding the small Montana town of Hardin in an alleged scheme to operate its local prison. Sordid as it is, his story is quite common. Ostensibly sanctioned by law enforcement officials, these private firms have sought out small, impoverished, predominantly South Western towns for which the building of prisons would guarantee jobs and steady incomes. Promising greater and greater efficiency at a minimum of the cost necessarily comes at the expense of something else – such ‘nonessential’ services as in-house medical and psychological staff. All this begs the question, at what point do civic and humanitarian concerns outweigh efficiency arguments? More important still, how does a society reconcile its public duty to uphold and enforce the law – a task most of us agree that society alone can exercise – against an increasingly privatized corrections industry?

The Obama administration continues to tread lightly – holding their predecessor’s line under the guise of preserving ‘law and order.’ Perhaps that’s a rationale which voters are willing to accept for the moment, but all that clamoring for change back during the campaign will come back to haunt the President and his congressional allies in 2012 unless they actually follow through. In preparation for the coming immigration debate, Homeland Security Secretary Napolitano spoke on Friday, November 13th at the Center for American Progress on the issue of reform, broadly defined. While it’s encouraging to see some movement on this front, any part of a workable solution will require a reassessment of the draconian public-private prison scheme. Talk only goes so far before voters begin to wonder whether they’ve backed the wrong horse. Ball’s in your court, Mr. President.