What Ever Happened to "Extremism in Defense of Liberty is No Vice"?

It's more than a little ironic that conservatives think the first order of business when fighting terror is to sacrifice freedom.

Michael Wayne Hash served 12 years of his life sentence for the 1996 murder of 74-year-old Thelma Scroggins in Culpeper, Va. On Wednesday, Hash was released after federal district judge James Turk overturned his conviction. Turk cited "outrageous conduct" and "extreme malfunction" by law enforcement and prosecutors, including reliance on the dubious testimony of a jailhouse snitch and another witness who later recanted.

About this time last year Thomas Haynesworth walked out of Greensville Correctional Center in Jarratt, Virginia – a free man for the first time in 27 years. Nine months later, the Virginia Supreme Court granted Haynesworth a writ of actual innocence, exonerating him completely of the crimes for which he had been convicted.

Most people would consider anyone who spent so much time locked up for something he did not do to have the world's worst luck. But both Hash and Haynesworth had incredibly good fortune in at least one regard: They had been charged with specific crimes, so it was possible – eventually – to exonerate them.

Imagine for a moment that either man had been arrested and locked up – but not charged. Imagine his family, his friends, and his lawyers demanding to know why he had been taken into custody so they could mount a credible defense. Imagine the government telling them there was no need for a defense because there would be no trial, because there were no charges to defend against. The arrested man wasn't going to be charged – and he wasn't going to be released. Ever.

The prevention of such a grotesque outrage is written into the Constitution – in Article I, Section 9, which prohibits suspending the right of habeas corpus except in cases of rebellion or invasion. Nevertheless, earlier this year Congress passed, and President Obama signed, the National Defense Authorization Act, which authorizes the indefinite detention, without charge or trial, of American citizens by the U.S. military.

Taking a page out of George W. Bush's book, Obama included a signing statement indicating that he would disregard the parts of the law he does not like, including the detention provision. But his forbearance, while welcome, does not constrain future presidents. (It does not even constrain him, for that matter; he can change his mind at any time.)

That is why Del. Bob Marshall introduced legislation – HB1160 – in the recently concluded General Assembly session forbidding state and local law-enforcement agents to aid in any arrest that might lead to such indefinite detention. The bill awaits action by Gov. Bob McDonnell, who should sign it.

Marshall, author also of the widely reviled fetal-personhood measure, and a 2010 bill seeking to exempt Virginians from the insurance mandate in Obamacare, has the support of liberal Democrats this time. It's his conservative Republican teammates who have tried to scuttle the bill.

Too many conservatives feel complacent about soldiers arresting citizens without charges and holding them indefinitely on the mere suspicion of cooperating with al-Qaida. Perhaps they do not remember Madison's warning that "the means of defence agst. foreign danger, have been always the instruments of tyranny at home." But they ought to remember the early 1990s, when militia groups sprang up in the wake of Ruby Ridge and Waco to defend the Constitution against what the NRA's Wayne LaPierre termed the "jack-booted thugs" of the federal government. Just because the Bush administration adopted indefinite detention doesn't make it a good idea.

If they cannot remember even that far back, then perhaps they can remember all the way back to 2009, when outrage erupted over a Department of Homeland Security report that focused on domestic "rightwing extremism" – including returning veterans, abortion opponents, and anyone "rejecting federal authority in favor of state or local authority." Some people who call members of the Tea Party terrorists think they are speaking literal truth.

Conservatives who cannot remember even back to 2009 at least ought to remember that any indefinite detention would be ordered by the same authorities who are nationalizing health care and trampling the fundamental First Amendment rights of Catholic institutions. Distrust of federal authorities is a good thing, and should not be summarily suspended just because someone utters the two magic words, "national security."

It's more than a little ironic that conservatives, who are fond of saying that terrorists "hate us for our freedom," think the first order of business when fighting terror is to sacrifice freedom. How quickly they have gone from "extremism in defense of liberty is no vice" to "if you can't beat 'em, join 'em."

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch, where this column originally appeared.