Lawyers at war with reason

Michael Barone:

"Never in the history of the United States had lawyers had such extraordinary influence over war policy as they did after 9/11." Those are the words of Jack Goldsmith, the Harvard law professor who was one of those lawyers, as head of the Justice Department's Office of Legal Counsel in 2003 and 2004. They appear in his book "The Terror Presidency," hailed as a criticism of the Bush administration's legal policies, which in part it is.

Believing that some of his predecessor's opinions, particularly two on interrogation techniques, were "deeply flawed," he reversed them. He argues that the administration would have ended up with more latitude in fighting terrorism if it had worked with Congress to get legislation, even if those laws would not have been as expansive as the administration wanted. It's a serious argument, and he also presents fairly, I think, the opposing view that such restrictions would make it harder to protect the American people.

But anyone who goes beyond the first newspaper stories and reads the book will find another message. For one thing, Goldsmith also supports many much-criticized policies -- the detention of unlawful combatants in Afghanistan and their confinement in Guantanamo, trials by military commissions, the terrorist surveillance program. And he rejects the charge that the administration has disregarded the rule of law. Quite the contrary. "The opposite is true: the administration has been strangled by law, and since September 11, 2001, this war has been lawyered to death." There has been a "daily clash inside the Bush administration between fear of another attack, which drives officials into doing whatever they can to prevent it, and the countervailing fear of violating the law, which checks their urge toward prevention."

It was not always so, he points out. In 1942, Franklin Roosevelt ordered military commissions to try the eight Nazi saboteurs who had landed on our shores; the Supreme Court unanimously approved, and six were executed six weeks after they were apprehended, to the applause of the media of the day. But FDR "acted in a permissive legal culture that is barely recognizable to us today."

In the wake of Vietnam and Watergate, Congress passed laws that criminalized military and civilian officers who broke the rules on electronic surveillance and detainee treatment: "the criminalization of warfare." Its ban on political assassination deterred the Clinton administration from gunning down Osama bin Laden. The CIA has become so wary of possible criminal charges that it urges agents to buy insurance. Developments in international law, especially the doctrine of universal decision, also threaten U.S. government officials with possible prosecution abroad. All of this creates a risk-averseness that leaves us more vulnerable to terrorists.

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What the bush administration found that as long as the threat was significant Democrats and liberals agreed with the expansive interpretations of power to stop the enemy, but as people started feeling safe again the Democrats felt safe in exposing the population to the risks inherent in their terrorist rights interpretations of the law. That is why they were willing to expose the terrorist surveillance program and offer great aid and assistance to the enemy. It is why they were wiling to expose our surveillance of terrorist finance and expose those who had been cooperating with us.

It is one of the ironies of this war that both of those measures would have been easily approved by congress had he bush administration been willing to expose them to a public debate. The reason they would have been approved at the time is because Democrats are basically cowards when it comes to taking responsibility. They would never except responsibility for the attack that was not prevented because they wanted to insure the privacy rights of terrorist. They still have problems taking that responsibility as we saw in early August. But there is still a core of their party that believes in the lawfare model for fighting this war no matter its obvious weaknesses.