Monday, February 18, 2008

U.S. v. Hir (9th Cir. - Feb. 15, 2008)

It's allegedly a holiday today. I say "allegedly" because even the University of San Diego (and the law school) are open, which means that it must not be a very well-observed holiday. Because, trust me, if there's one thing that law schools -- and law students -- understand and appreciate it's three-day weekends.

The government, of course, is even more keen on three-day weekends. Which means no opinions will be published today. But, in honor of President's Day, I thought I'd make a brief comment about one opinion that came out on Friday. That concerns an issue that a variety of commanders-in-chief throughout history have had to face: the balance between security and freedom. An issue that was as relevant to President Lincoln, for example, when he suspended habeas during the Civil War as it is to President Bush today.

There are genuine risks that the fear of external attack will result in an unacceptable dimunition of critical constitutional rights. Nonetheless, there are also some restrictions on constitutional liberties that are entirely appropriate in light of the contemporary dangers that confront the nation.

This, in my mind, is an example of the latter.