The Price of Freedom

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.

Per Politico, and ABC, we learn that this statement is apparently controversial.

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?



  1. I’m actually in agreement thatthe government’s policy on detainees is really, really bad. The important question is, who is ultimately responsible?

    1. It starts with the American People – who are still such scared sheep as to buy the notion that we NEED to do this when our courts have, in fact, dealt successfully with this sort of thing since at least 1993. The it’s followed in order by the President and the Attorney General, followed by Congress (and the Courts last). It’s one of my biggest heartbreaks about Mr. Obama – he and Mr. Holder seemed like the kind of guys who would actually finally remove these policies from America’s books, since they argued so vociferously against them under Mr. Bush.

      As to Congress – They know well what is going on here, but neither Party has the stones to introduce legislation (much less conduct real oversight) to stop it. And the courts, while having made some important decisions in the last three years affirming some of the habeas rights, etc, refuse to actually order anyone form the Executive thrown in jail.

  2. Riffing here… this is pretty much the original version of the Habeas Corpus writ: a demand that charges and evidence be presented in open trial – effectively, a prohibition on disappearing people. I wonder how much opposition to extending that writ to detainees is based on the 20th-century development that changed Habeas Corpus writs into post-conviction challenges to the already-completed public trial, and an assumption that the Habeas that the Padillas and Boumedienes and 6 Uighur were asking for was that sort of “I lost in court, I want a do-over” habeas rather than the original “Give me my day in court, dammit!” habeas…

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