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All Power is Dangerous

Richard Epstein is one of my heroes.

Here’s his letter published in today’s Wall Street Journal.

David B. Rivkin Jr. and Lee A. Casey paint with too broad a brush in seeking to discredit the litigation brought against the United States during the current war against terror (“Lawfare,” editorial page, Feb. 23) — in particular, their claim that habeas corpus is an improper form of “lawfare” that wrongly whitewashes legal claims that deserve serious judicial and public attention. Messrs. Rivkin and Casey are right that habeas corpus has never been available to ordinary prisoners of war captured overseas. But they are wrong to give all detainees at Guantanamo Bay the same brush off. Many have insisted that they are not enemy combatants at all, but persons turned over to American authorities for bounties or in family grudges, or, in the case of Ali Saleh Kahlah al- Marri, a lawful alien and citizen of a friendly nation, seized in the U.S. They need to be able to challenge their detention before neutral judges.

Messrs. Rivkin and Casey are also wrong to insist that detainee claims receive a fair hearing under Combatant Status Review Tribunals set up by the 2006 Military Commissions Act. The CSRTs neither do the work of habeas corpus nor satisfy the due process clause, because the MCA prevents detainees from presenting evidence and from having representation by counsel.  Opponents of these truncated procedures do not pretend to know of the guilt or innocence of the detainees. But we do insist that using traditional procedures is the only way to get at the truth.

Finally the authors incorrectly disparage the current protests against the administration as yet another left-wing “progressive” movement. Not so. The opponents to the administration’s policy include small-government libertarians like myself who believe Madisonian checks and balances are always needed to guard against government excess. Those of us who take the modern regulatory state to task for its disregard of the principle of checks and balances in economic affairs should not give a free pass to excessive government power when incarcerating innocents is, regrettably, a real possibility.

Conservatives who are leery of the state when it delivers mail and meddles in education fall into an unfathomable inconsistency when they cheer on that same state’s foreign military adventures and its exercise of war powers.


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