To Habeas or Not To Habeas?

Not to justify Guantanamo or Bagram or denial of habeas corpus, but they are many factors that cannot be simply glossed over.

While there is a cost of denying habeas corpus to these people, there is also a concomitant cost to extending habeas corpus. The decision to deny habeas corpus does not occur in a vacuum nor out of some sort of malicious disdain for habeas corpus but out of due consideration of what is also the very real cost of extending habeas corpus. We have already seen that when some of these people are released, innocent people die as a result. This raises the question of how many innocent people are to be sacrificed on the altar of "habeas corpus?" In the specific case of Guantanamo, a majority of the inmate population has already been released. What is left is a cadre of the hard core militant extremists. If these inmates are released it is not a question of if they will go on to kill innocent civilians, but when. It is fine and good to call for their release due to being denied habeas corpus, but at what cost in innocent life?

In calling for Constitutionally robust trials, the issues of national security cannot be glossed over. What people fail to appreciate is that presenting the incriminating evidence in open court can have devastating implications to national security. People think that if you are reluctant to present evidence that is proof of lack of evidence. The very real problem that people fail to appreciate is that revealing the evidence will reveal how the evidence was obtained which will render those methods ineffective in the future.When the methods of obtaining information are revealed, the bad guys can takes measures to stop that. It is not necessary to explicitly reveal the methods (exploit) used as this can be inferred from the evidence. Consider a conversation presented as evidence. Once that is revealed, the phone that was tapped is also revealed and it is no longer useful to gather information in the future. Usually this is not a problem for a normal criminal case but if you want to continue to gather information from the exploit in question, this is a problem. Thus the problem is that revealing evidence in court can eliminate our ability to detect future terrorist activity to prevent future terrorist attacks. This in a nutshell is the motivation for denial of habeas corpus. It becomes a choice between prosecuting a known terrorist or preventing future terrorist attacks. If we insist on habeas corpus, sacrifice the ability to prevent innocent civilians dying in future terrorist.

I am not saying what is the right answer, but apparently both GWB and Obama have decided it is better to sacrifice habeas corpus than to sacrifice innocent lives on the altar of habeas corpus. It is easy for us to criticize that choice from the comfort and safety of our homes when it is not us that will be responsible for lives lost in making that choice. Suppose someone presented you with a captured terrorist and this choice: you can invoke habeas corpus but in doing so here are the faces of 100 people who will die as a result. What would you choose? What if it were 1000 or 10,000 or 10? My guess is that now that Obama carries the responsibility for this choice this is how he now sees it with regard to Bagram. It's one thing to stand for an ideal and another thing when that ideal carries with it very real cost in human life. Just like it was apparently one thing for Obama to call for habeas corpus as a presidential candidate and yet another thing now that he would be the one responsible for the cost of that choice.