We’re told the habeas protection being denied the foreign enemy combatants being held in Guantanamo is a major national scandal that puts too much power in the hands of the executive. I disagree, not least because Constitutional protections have never previously been extended to enemy prisoners captured abroad in a time of war. Their treatment has traditionally been the exclusive province of the President, an incident to his powers as commander in chief and the chief of military policy. Also, the interpretation and application of treaty obligations was left to his discretion.
But the major premise of critics that more judicial process generally favors liberty also seems to be accepted uncritically by defenders of the executive. This view of process does not take into account that too little government can be just as dangerous to liberty as too much, because disorder and a lethargic government unleash forces that are controlled even by the most powerful rulers. This is apparent when we view areas of the world where lawless, nonstate actors undermine the government’s protection of vulnerable citizens.
An overly legalistic application of habeas engendered greater oppression in the Deep South in the 1870s, as relayed in Eric Foner’s A Short History of Reconstruction:
[A] government willing to suspend normal legal processes and employ armed force could mount an effective response to the Klan. But as many a modern government has discovered, the suspension of constitutional rights carries its own risks, especially the possibility of transforming perpetrators of violence from criminal into victims in the eyes of citizens who sympathize with their motives if not their methods. Nowhere was this dilemma more apparent than in North Carolina, where Gov. William W. Holden’s use of the militia provoked a reaction that brought down his administration. In 1870, the government dispatched white militia units raised in the western North Carolina mountains to Caswell and Alamance counties, under the command of former Union Army officer George W. Kirk. About 100 men were arrested, and although the state constitution did not authorize the governor to declare martial law, Holden suspended the Klan-controlled local courts, ordered the prisoners tried before a military commission, and refused to honor a writ of habeas corpus issued by the state’s chief justice. Ironically, Democrats then appealed to the federal courts under the Habeas Corpus Act of 1867, originally enacted to protect blacks and white Unionists. Holden was forced to release the captives, and the campaign against the Klan collapsed.
I guess, as today in our war against al Qaeda, if reconstruction-minded governors resorted to swift and extra-legal methods against the Klan, we’d be no better than the Klan and the terrorist regime they aimed to establish. It’s better, I suppose, that the Klansmen were released under the banner of habeas corpus, even though their release meant they could continue to conduct a military-style campaign of terror against blacks, unionists, and so-called carpetbaggers.