It's hard to imagine a situation in which the government thinks it has enough evidence to convict someone on terrorism charges but doesn't think he poses "a security threat." Since only guilty verdicts count, Obama might as well go directly to "prolonged detention" by presidential order, except that would reveal how little difference there is between him and his predecessor in this area.

Although Obama faults the Bush administration's "ad hoc legal approach," he, too, is leaving his options open. "We are indeed at war with Al Qaeda and its affiliates," he says. The implication is that anyone accused of ties to Islamic terrorism -- which could mean anything from undergoing training or planning an attack to donating money or building a website -- can be treated as a prisoner of war, held without trial until the "cessation of hostilities" (in effect, forever). Alternatively, he can be tried by a military commission for violating the laws of war, or he can be tried in federal court on a charge such as providing material support for terrorism.

"In our constitutional system," Obama says, "prolonged detention should not be the decision of any one man." Yet under the principles he and his underlings have laid out, the choice of how to treat a given terrorism suspect -- whether apprehended here or abroad, on a battlefield or off, now or in the future -- is entirely up to him.

In the end it may not matter much. When freedom is not a real possibility, due process is just for show.