With all due respect, Professor Bainbridge, I cannot agree at all with your invocation of the "suicide pact" argument. (Besides, I beat you to the punch on Gharebi by a couple of hours—I posted at 1:18 Central time. Phhht!) Although it is certainly arguable that Justice Jackson used the phrase "suicide pact" first, the most common invocation is of Justice Goldberg:
The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact.
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (Goldberg, J.).
Mendoza-Martinez is a draft-dodging case—at least, on its face. The defendant was a naturalized US citizen who evaded the draft in 1942 by going to Mexico until 1946 (according to the colloquy in his guilty plea). After his conviction, the government stripped him of his citizenship and deported him. The case is really about the concept of estoppel—that is, one cannot argue against the result in a prior case that went against one, so long as the issue was (or could have been) fully and fairly tried in the prior case. Yes, that's a mouthful. Consider it in the context of a teenager trying to borrow the car. If the teenager asks Mom to borrow the car, and she says "No," the principle of estoppel would prevent said teenager from walking into the next room and asking Dad to borrow the car. He would be estopped from arguing against the result when he asked his mother (assuming, of course, that Mom and Dad have equal authority over the car). But what if he wanted to use the car to go take a college admissions test, and his mother just said "no" without listening to the substance of the request? Wouldn't that justify asking Dad to consider it anew? Probably not, because he could have at least gotten his reasons before Mom for her to reconsider her decision. Mendoza-Martinez is not really about civil liberties, but about civil procedure. Citing this language in support of deprivation of civil liberties is at a minimum removing it from context. (And the context in which Justice Jackson was using it—another case turning on civil procedure, not civil liberties.)
So just what is a "suicide pact?" Compare Hirabayashi v. United States, 320 U.S. 81 (1943) (upholding curfew imposed on Japanese-Americans due to their ancestry without regard to their citizenship) with Korematsu v. United States, 323 U.S. 214, 233–42 (1944) (Murphy, J., dissenting) (ethnicity is not a valid ground for restrictions on individual freedom of U.S. citizens). The oath taken by federal officers, particularly those in the military, requires them to "protect the Constitution against all enemies, foreign and domestic." If the nation is so changed by overreaction to extreme circumstances that the Constitution is thoroughly undermined, is not that as much a "suicide pact" as failing to defend it against foreign invaders? I wish this was only a rhetorical question. Instead, it implicates the basis of the Constitution itself: a government designed to prevent the tyranny of unlimited royal and Parliamentary power perceived in the American Colonies in the 1750s through 1770s.
This is a question of means and ends. Preserving the nation against terrorism is a satisfactory end, without question. The real controversy is the acceptable means to do so—keeping in mind that the means actually used will shape the ends actually achieved. Our collective memory appears so short that the "Red Raids" of the 1920s (that usually ended up as exercises in union-busting), HUAC, McCarthyism, Orville Faubus, Ernest Medina, William Calley, Daniel Ellsberg, and the sound of J. Edgar Hoover sucking civil liberties out of the nation at large are completely forgotten. Those who do not know history are doomed to repeat it. We've had repression of dissent before, and repression of supposed durned furriners and alien seditionists before; each of those major periods was followed by significant civil unrest against the power structure.
Ironically, the unstated assumptions that "justify" keeping the detainees from talking to lawyers do not hold up under even casual scrutiny. This goes far beyond the sub rosa assertion that lawyers are disloyal to US security. It instead assumes that the detainees will be less likely to provide valuable and timely intelligence if they're talking to their lawyers. Bullshit. In what I can discuss even cursorily of my experience, it's easier to get someone to repeat something already "confessed" to someone else, even in confidence, than to get them to say it the first time. At least, it's easier without going beyond the third degree into 1980s South African police practices. In other words, denying the detainees access to counsel may well be counterproductive; and had experienced interrogators familiar with Islamic culture been consulted and listened to in the first place, this divisive argument may never have become ripe. One might also say the same about even the necessity for the argument; but the tangled world of intelligence gathering, analysis, filtering, and selective use in making practical and policy decisions is both beyond the scope of this blawg and within the scope of my NDA.