Lawfare and the release of terrorist

Daniel Henninger:

Shakespeare wrote, “The first thing we do, let’s kill all the lawyers.” As we know, that didn’t happen. Four hundred years later, they’re killing us with the smothering pillow of hyper-proceduralism. Now the lawyers are about to smother the war on terror.

This Monday, the same day that Attorney General Eric Holder named a special prosecutor to investigate persons who conducted the CIA's interrogations in the war on terror, Scotland's Justice Minister Kenny MacAskill stood before his parliament and gave this defense for releasing convicted Lockerbie bomber Abdel Basset Ali Megrahi:

"It was not based on political, diplomatic or economic considerations. . . . My decision was made following due process, and according to the law of Scotland. I stand by the law and values of Scotland."

Faced with a similarly fastidious assertion of the law's triumphal self-regard in "Oliver Twist," Mr. Bumble replied: "If the law supposed that, the law is a ass—a idiot." Mr. Bumble added something acutely relevant to what is happening to the war on terror: "The worst I wish the law," said Mr. Bumble, "is that his eye may be opened by experience—by experience."

The experience of a world beset by terror eludes the eyes of a Kenny MacAskill, Eric Holder and others in the Obama administration. The rest of us may suffer for it.

In a May speech at the National Archives, President Obama, mirroring Kenny MacAskill's remarks, said we had to "update our institutions" to deal with terrorism but "do so with an abiding confidence in the rule of law and due process."

That "update" is upon us. The smothering pillows have arrived.


The day of Mr. Holder's announcement, CIA Director Leon Panetta said his agency received "multiple written assurances its methods were lawful." It's now clear that even playing by the rules cannot stop erosion by legal challenge.

That day also brought the release of CIA Inspector General John Helgerson's 2004 report on the agency's detention and interrogation of terror suspects. Both sides to this argument say the report supports their view of the CIA. No matter. What the release of the Helgerson report mainly does is open the dams on detainee lawsuits.

This litigation nightmare, together with the chilling effect of the special prosecutor's potential indictments, has as its goal making the price of aggressive interrogation too high under any circumstance, including a one-hour-bomb scenario.


George Bush used to joke that our enemies expected us to respond to mass murder of our people with legal papers and unfortunately that appears to be the goal of the Obama administration which wants to return to the failed lawfare policies of the past. It is a strange government that shows more empathy for terrorist than for their victims. It is part of the high cost of liberalism.


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