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.

In BR’s January/February issue, David Cole grappled with the same question – and reached a remarkably similar conclusion. Detention without trial, Cole argued, was not only legal, but necessary. Many detainees could not be brought to trial in the U.S. under international law. What they could be afforded, he claimed, was some modicum of due process – proceedings to clarify whether they had actually been members of Al-Qaeda or the Taliban, for example. “Enhanced interrogation techniques,” moreover, would be firmly out of the question. Above all, Cole wrote, “Guantánamo is a black mark because of this resistance to law and refusal to recognize the basic human dignity of the detainees. If we are to fix the problem, we need not abandon military detention, but we must subject it to the rule of law.”

Still, Cole endorses a legally shaky principle of detention without trial as a “preventative” measure, meant to prevent strongly suspected terrorists from reengaging in violence. According to a recent New York Times article, one in seven former detainees returns to terrorism after release.

International humanitarian law affords Cole – and Obama – more flexibility with the Guantánamo detainees than they would have for domestic terror suspects. But human rights groups have been critical of ideas like these, which appear to represent an intermediary step between the “ad hoc” policies of the Bush years and a doctrinaire approach to detention that would essentially follow an established legal order — whether domestic or international. Leaks from a meeting between representatives from several leading human rights organizations and Obama indicate that they now see little difference between his policies and those of George W. Bush.

Lurking behind these debates are several definitional problems.

The detainees held at Guantánamo, many agree, are in legal limbo because their status falls outside both U.S. and international law. The “torture memos” authored by Bush administration Justice Department officials took pains to point this out. The question was whether this loophole allowed the U.S. to indefinitely detain and treat detainees outside any established legal framework, or whether it was compelled to release them — in other words, whether the absence of law covering a given situation allowed for the exercise of arbitrarily-applied, “ad hoc” power, or forestalled states from acting at all.

The issue of torture and detainment, then, was never really about the “rule of law”. The “law” in question did not exist. In this vein, the human rights organizations with which Obama met remain adamant that the president’s stated goal of preventing American image problems from becoming incitements to increased international tension would be best served by fidelity to the values Obama claims to lionize — not just as criteria by which to interpret law, but as means in and of themselves.

What remains an open question is what approach is more pragmatic in terms of preventing terrorism. To what extent can Obama maintain an intermediary approach without inflaming world opinion such that releasing the remaining detainees might be the lesser danger? So far, he has made mostly symbolic gestures. His proclamations upon entering office that Guantánamo would be closed and torture ended have run up against serious criticism from within his own party, which blocked funds for the closure due to the administration’s lack of a serious plan, and which demand a serious attempt to bring the architects of the Bush administration’s torture regime to accountability — if not justice.

Obama does appear to be revising some of his policies. Today, it was announced that a detainee accused of involvement in the 1998 U.S. Embassy bombings in Kenya and Tanzania would be transferred for trial at a civilian court in New York. And Obama claims – despite vociferous attempts by Republicans to turn it into a national security issue – that many more detainees will be brought back to U.S. shores.

But with military tribunals set to continue, and the massive, Guantánamo-esque prison in Bagram, Afghanistan set to remain open, it will be increasingly difficult for Obama to claim he is turning the page on the Bush years, particularly given his reluctance to pursue either hearings or investigations of administration officials. Obama was aware enough of the role the U.S.’ reputation plays in ensuring its security to forestall the release of more photos of detainee abuse. Putting off accountability for existing evidence detainee abuse, however – Obama has claimed that transparency will come, later – may be a move laden with just as much risk.

Chris Szabla is a law student at Harvard and an editorial assistant at Boston Review.