Yes, says Daniel Henninger in today’s Wall Street Journal, but I’m not so sure. Putting aside any professional bias, I just don’t think that Mr. Henninger makes the case. He relies on three recent events. First, the release of the convicted Lockerbie bomber Abdel Basset Ali Megrahi by Scottish officials. Second, the decision my Attorney General Holder to appoint a special investigator to look into the CIA interrogations. Finally, the CIA Inspector General’s report generally. Each of these, according to Mr. Henninger, are lawyer driven mistakes that “in toto” will have an undeniable chilling effect on the “war on terror” such that no person in their right mind will do anything even remotely necessary to continue its prosecution.
Even if Mr. Henninger is correct in his assessment – and I’m not sure he is – the problem, it seems to me, rests not with the lawyers, but rather with the law itself. Even more accurately, the problem rests with the fact that the needs in the war on terror arose faster than the law could adapt to meet them. This is not a problem unique to the war on terror, nor is a particularly new phenomena. The law typically lags behind all sorts of things, technological advancement being the most prevalent example. Of course, it didn’t have to be this way.
One of the many legitimate criticisms that can be levied against those that were on the front legal and political lines in the early days of the war on terror is that they failed to seek systematic changes to the law in a timely manner. In other words, they knew, or quickly should have discovered that the law as it existed, and to a large degree still exists today, is not well suited for the type of battle that we are currently fighting. Rather than take the time and expend the political capital to change and modernize the laws, many of those individuals sought to merely reinterpret and re-implement the existing law broadly, so that it would provide cover to those taking what they thought were the necessary and justified actions on the ground. This worked in the short-term, but now, years later, we are discovering that many of those interpretations were inaccurate, not well conceived, poorly reasoned, and ultimately can not withstand even the slightest bit of scrutiny. As a consequence, some of the actions of the current administration can be legally justified. Note, this is not to say that the contemplated actions (i.e., criminal prosecution) should be taken, that’s in large part a political judgment, as not everyone who can be investigated and ultimately criminally prosecuted should be. Rather, it is merely to point out that the actions have a basis in the law as it currently stands.
For example, take the release of convicted Lockerbie bomber Abdel Basset Ali Megrahi by Scottish officials. I’m by no means an expert on Scottish law (for that we need Sen Specter (D-Pa)), but the concept of “compassionate release” has been around for centuries and can be rather easily defended on its own merits. Had the Scottish wanted to exclude terrorists from the law’s application they most certainly could have, and many will argue they should have. They haven’t, and consequently the events of the last few days have unfolded. I don’t know enough to say for sure, but even if the decision was purely discretionary, it can be defended as consistent with the law and previous application of the doctrine of “compassionate release.” It is more than likely that there were competing precedents, persons who may have qualified on medical grounds but whose crimes were so heinous that release simply wasn’t justified. Maybe the law in Scotland hasn’t encountered a similar situation before, or maybe it was simply a close call that went against the wishes of the United States and the victims families. Either way, the result was avoidable by simply taking the option away from the Minister and removing his discretion when it came to people convicted of terrorist acts. Relying solely on executive officials to always make the right policy decision is what led to this situation, not the law itself, which could easily have been changed.
Similarly, the previous administration relied heavily on administrative interpretations and discretionary legal opinions to advance it’s policies regarding the prosecution in the war on terror. The problem with this approach is precisely what we are seeing now. Administration opinions and discretions change with the political and philosophical direction of the President. New President, new interpretations. There’s nothing new, nefarious, or surprising about this, it’s been happening since 1801 when Thomas Jefferson and the Democratic-Republicans assumed control of the White House from John Adams and the Federalists. Jack Goldsmith’s book The Terror Presidency: Law and Judgment Inside the Bush Administration is excellent on this point with respect to many of the previous Administration’s decisions. Mr. Goldsmith is politically and philosophically in favor of many of the policies implemented, but he forcefully, and I think persuasively, argues that they should have been achieved by legislating changes in the law, not by administrative interpretation.
In sum, if the war on terror is ending, it’s not because of its being overlawyered. The problems idenfied in the op-ed exist because the law still hasn’t been adequately adapted to suit the war’s needs. Executive officials like the Attorney General are charged with implementing the law, not making it. It may be the case that the implementation of these laws as they currently stand will have an unwanted and unnecessary chilling effect on our ability to fight the war on terror. I remain dubious of that proposition, but if it’s true, the answer lies not in faulting the lawyers who are currently making the implementation judgments (though if they make poor ones, they are of course accountable), but with those who decided to take the easy way out and not seek the kind of long-term, permanent changes that were, and may still be, necessary for success in this fight.
