Thinking About Boumediene

I have an article up at TAP about some of the implications of last week’s Supreme Court landmark. One important thing is that progressives shouldn’t cede the national security component of the argument:

The first section of Justice Scalia’s dissent contains a screed that seems more likely to have come from an O’Reilly Factor transcript than from a Supreme Court opinion in a landmark case. “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief,” Scalia asserts, “will make the war harder on us. It will almost certainly cause more Americans to be killed.” Although unconvincing as legal analysis, Scalia’s demagoguery does make clear the political problem faced by progressives.

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For this reason, it is important for progressives not to approach arguments like Scalia’s from a defensive crouch. In particular, there is no reason for progressives to accept the argument that there is a zero-sum tradeoff between reasonable protections of civil liberties and national security. Especially when one considers opportunity costs, there is, in fact, little security value in arbitrarily detaining people against whom the government lacks evidence. As Stephen Holmes has argued in his book The Matador’s Cape: America’s Reckless Response to Terror, the Bush administration’s aggrandizements of executive power (and Congress’ unwillingness to properly exercise its restraining and oversight functions) have undermined national security rather than preserved it. Long-term arbitrary detentions are bad for both civil liberties and the security of the American public, and it’s crucial for liberals not to concede the latter half of the equation.

Consider these types of revelations. In a world of limited resources, arbitrary detention doesn’t present a tradeoff between national security and civil liberties; it’s bad for both.