Lawfare against the war support services

Andrew McCarthy:

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In the Korean and Vietnam wars, force size hovered around 3.5 million. At the close of the Reagan administration, after a significant build-up from the Carter malaise, it stood at about 2.1 million. But in the ensuing decade, according to a Congressional Research Service study, it was slashed by a third, to 1.4 million. Army divisions were nearly halved (from 18 to 10). In essence, the Clinton administration “reinvented government” by using military cuts to obscure its expansion of the federal bureaucracy.

The 9/11 attacks triggered a military response to global jihadism. Yet, force size has not been materially increased. In fact, the status quo endures even as our defense structure patently defies our defense strategy. A lean, mean fighting machine reliant on smart-technology to do more with fewer warriors may be the wave of the future. But we are not in the future. Here and now, the policy is counter-insurgency and nation-building. Whatever its wisdom, such a policy indisputably calls for higher numbers of well-trained people to apply to each part of the war’s problems.

But we don’t have them. As a result, it has become necessary to turn with greater regularity and urgency to private actors: noncombatants assuming critical support operations and thus freeing up military personnel who would otherwise bear those burdens.

Unfortunately, while terrorists are no match for the U.S. armed forces, private industry is overmatched by the U.S. courts. In light of lawfare’s emergence as the weapon of choice for today’s most determined dissenters, the legal attacks on the military’s (and intelligence community’s) partners has reached a crisis.

The collection of foreign intelligence is our most precious asset in a global war against the transcontinental tentacles of secretive jihadist networks. We can’t vanquish this enemy by conquering a territory or starve it by seizing a treasure. Terrorists, moreover, insinuate themselves in civilian populations, making strikes against them prohibitive no matter the gravity of the provocation -- we were no more going to bomb Hamburg or Madrid after 9/11 than San Diego, Sarasota, or the dozens of other American cities and towns where the attack was planned, prepared and perpetrated.

At best, victory will be slow in coming. There simply is no easily foreseeable war-ending scenario. “Victory” means substantially degrading radical Islam’s capacity to project power. That can be accomplished only by identifying who the terrorists are, where their strongholds can be found, and what targets they plan to hit. To do that, we must have intelligence—no amount of sheer military might will compensate for a dearth of information.

The intelligence we most need comes from two sources: surveillance and interrogations. Today, we can’t get it without assistance from American industry.

Near-total reliance on private actors is unavoidable when it comes to electronic surveillance. And it should be. Signals intelligence, the real-time information derived from enemy communications, involves penetrating an unprecedented variety of communications that transmit at warp speed and confound yesterday’s decryption technology. To access and decipher them, and to maintain the technological edge that enables us to continue doing so, the cooperation of telecommunications companies is essential.

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But here’s the hitch: The sovereign is presumptively immune from legal claims. When an agency of government executes its regular duties, it is not subject to suit unless it has consented to be sued. That includes the errors government operatives inevitably make. Were that not the case, police would be afraid to make arrests, prosecutors to bring charges, and “first-responders” to react to emergencies.

The same is not true of private actors. Our law does not automatically protect them from ruinous litigation, even if they are performing services without which government could not function and American lives could not be protected.

That, indeed, is the core of the ongoing controversy over the House Democrats’ stunning failure to renew legal authority the intelligence community needs to monitor terrorist and other foreign threats overseas. There is broad consensus that this authority is essential, that any gap in our surveillance coverage while our enemies are actively plotting reprisals of 9/11 is unacceptable. Yet the hard Left has dissuaded Speaker Nancy Pelosi from permitting a vote on a bipartisan compromise bill that passed overwhelmingly in the Democrat-controlled Senate. Why? Because the compromise would immunize the telecoms from lawsuits.

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There is much more.

The purpose of these suits has little to nothing to do with an invasion of privacy much less any real harm to peoples whose data may have been sifted for clues in finding who may be trying to engage in mass murder of our citizens. It is beyond idiotic to suggest that we should not be intercepting the communications of our enemies in a time of war. Yet that is what the practical results of these suits will be.