Eric Holder, on the briefs in Rumsfeld v. Padilla, 542 U.S. 426 (2004), arguing for a detainee’s right to at least hear the case against him, by means of a writ of habeas corpus, before being thrown in to a legal black hole:
[We] recognize that these limitations might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.
Why? We attribute to Benjamin Franklin a near infinite number of variations on the same theme: “those who would give up a little liberty, to gain a little security, deserve neither, and will lose both.” While security and liberty need not always be in perfect tension, or a zero-sum relationship, expansion of liberty does usually attend the loss of some security, or at least the loss certainty. Whether that’s a bargain we want to strike is not a question we’re empowered to resolve: it was decided for us, in the affirmative, long ago.
And, remember, in the 2001-2008 debate over habeas corpus, Holder’s side won. Have we really fallen so far that we’re willing to not only mortgage the writ of habeas corpus, but question why we ever thought we’d do otherwise?