War by Lawyer

American conservatives have long argued that the judiciary should defer to the elected branches of government on matters of policymaking, correctly observing that the practice of judicial deference dates to the founding of the nation. Even those founders who favored a somewhat “elastic” interpretation of the Constitution condemned the notion of “legislating from the bench.” As Alexander Hamilton noted in Federalist #78, the judiciary possessed neither the purse nor the sword, and would retain its legitimacy due to the fact that judges possessed little discretion and were required to follow precedent, all the while observing a strict separation from the elected branches of government.

It is important to keep this in mind in light of the recent National Security Agency surveillance “scandal” which has led to calls for increased judicial oversight of the nation’s intelligence community. These calls, unfortunately, are not coming solely from the usual liberal suspects, but from conservatives who proclaim their devotion to the Constitution. This is an unfortunate turn of events, for if legislating from the bench is inappropriate in the domestic arena, it is completely unwarranted, and altogether dangerous, in the national security arena.

This newfound appreciation for judicial activism from normally sober-minded conservatives can be seen in Senator Rand Paul’s (R-KY) and Representative Justin Amash’s (R-MI) proposal that class action lawsuits be filed against the National Security Agency in order to alter its practices. Paul recently announced that he would challenge “this [NSA surveillance] at the Supreme Court level. I’m going to be asking all the Internet providers and all of the phone companies, ask your customers to join me in a class-action lawsuit. If we get 10 million Americans saying ‘We don’t want our phone records looked at,’ then somebody will wake up and say things will change in Washington.” A program authorized by Congress, managed by the executive, and sanctioned by the FISA court will now be challenged by a class action lawsuit, mimicking the traditional liberal tactic of going to court when you cannot prevail in the political process.

FISAAdditionally, Senator Patrick Leahy (D-VT), a longtime critic of the American intelligence community, has sponsored legislation with Senator Mike Lee (R-Utah) to “increase judicial review” of terrorist related surveillance requests. The FISA Accountability and Privacy Protection Act of 2013 would, as its sponsors put it, add more “meaningful judicial review” of requests by the government to intercept suspected terrorist communications. On top of this, President Obama has proposed that a “special advocate” be appointed to serve as an adversary to the government in FISA court proceedings. In other words, government officials will have to joust in front of a judge with a lawyer concerned about the civil rights of a suspected Al Qaeda sympathizer living in the United States. While it is not surprising that President Obama and Patrick Leahy would adopt these positions, it is surprising to see prominent Republicans, including potential 2016 GOP nominees, jumping on Pat Leahy’s bandwagon.

Terrorist attacks directed from abroad are acts of war against the United States, requiring a response by the nation’s armed forces under the direction of the commander-in-chief. Unity in the executive is critical to the conduct of war, as Alexander Hamilton noted in The Federalist, and war by committee, especially a committee of lawyers, brings to armed conflict the very qualities that are the antithesis of Publius’s “decision, activity, secrecy, and dispatch.” The American military, with the assistance of the American intelligence community, fulfill the constitutional mandate to provide for the common defense. The nation’s defense establishment is not the Internal Revenue Service or the Department of Health and Human Services; if one dislikes the social welfare policies of the Obama administration or disagrees with President Obama for whatever reason, that is all well and good, but true conservatives should reject the principle that judicial review is applicable to the conduct of national defense. The founders understood that the decision to use force, the most important decision any government can make, were non-judicial in nature and were to be made by the elected representatives of the people.

Nonetheless, for those weaned during an era when “privacy” was elevated to the be-all and end-all of the American experiment, the war power and related national security powers granted by the Constitution to the elected branches are trumped by modern notions of a limitless “right to privacy.” The civil liberties violations of the War on Terror are considered so egregious as to require the intervention of an appointed judiciary lacking any Constitutional mandate, and lacking the wherewithal, including information and staff, to handle sensitive national security matters. This is judicial activism at its worst and further evidence that the “political questions doctrine,” the idea of deferring to the elected branches of government on matters falling under their constitutional purview, is, for all practical purposes, dead (See the case of Totten vs. U.S., 1875, for an example of judicial deference to the elected branches on intelligence matters. This deference persisted until the late 20th century). Simply put, according to the Constitution and to almost 220 years of tradition, Congress and the President are constitutionally empowered, among other things, to set the rules regarding the measures deemed necessary to gather intelligence and conduct a war.

One of the latest demands from advocates of increased judicial oversight is for a “targeted killing court.” In a similar vein, Senator Marco Rubio has called for the creation of a “Red Team” review of any executive targeting of American citizens, which would include a 15 day review process – “decision, activity, secrecy, and dispatch” be damned. A 15 day review process of targeting decisions would horrify Alexander Hamilton and all the framers of the Constitution. No doubt our 16th President would be horrified as well – imagine Abraham Lincoln applying for targeting permits on American citizens suspected of assisting the Confederacy. (“Today, we begin a 15 day review of case #633,721, that of Beauregard Birdwell of Paducah, Kentucky.”) War by lawyer might in the not too distant future include these types of targeting decisions, followed by endless appeals to unelected judges. All of this is a prescription for defeat.

We are, sadly, almost at this point, for a new conception about war and national security has taken root in our increasingly legalistic society. We saw this during the Bush years when the Supreme Court for the first time in its history instructed the executive and legislative branches on the appropriate manner of treating captured enemy combatants. The Courts are now micromanaging the treatment of detainees at Guantanamo, to the point of reviewing standards for groin searches of captured Al Qaeda members. True conservatives understand the pitfalls of this legalism, especially of the ill-defined international variety. Conservatives should be especially alert to the dangers arising from elevating international law over the national interest as the standard by which to measure American conduct.

The legalistic approach to the war on terror now being endorsed by prominent conservatives would cede presidential authority to executive branch lawyers and to their brethren in the judiciary who are playing a role they were never intended to play. Michael Scheuer, the former head of the CIA’s unit charged with tracking down Osama bin Laden, observed that “at the end of the day, the U.S. intelligence community is palsied by lawyers, and everything still depends on whether the lawyers approve it or not.” This is as far removed from conducting war, as Hamilton described it, with decision and dispatch, and with the “exercise of power by a single hand,” as one can get. War conducted by the courts is not only unconstitutional, it is, to borrow a phrase from author Philip K. Howard, part of the ongoing drift toward the death of common sense.

Stephen F. Knott

Stephen F. Knott, author of Washington and Hamilton: The Alliance That Forged America, directed the Ronald Reagan Oral History Project for the Miller Center of Public Affairs at the University of Virginia.

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  1. gabe says

    War conducted by the courts is, as you say, unconstitutional. However, it is even worse than that. It is war conducted by the most ill-prepared (dare I say, inept), tempermentally ill-suited and resource poor agency of government.
    Yet, it gets even worse. The modern warfighter is now “blessed” (according to Goldsmith? – more later) with JAG officers at forward operating bases who must grant their approval for targeting, missions and rules of engagement.
    In a book by a Mr Goldsmith (I may be wrong on the name) called “Power and Constraint”, the author details the creeping “legalizing” of modern warfare – at least as it is presently being conducted by the Armed Forces of the United States.
    I’ll not argue with the facts that he presents. Rather, it is his conclusions that this has had a salutary effect upon US warfighters.
    In the immortal words of that genius from the Bay Area, Nancy Pelosi, “Are you kidding me?
    Again, it gets worse. Goldsmith shows that the Courts have now granted standing to numerous NGO’s, both foreign and domestic, to petition for the rights of enemy combatants. And yes, again he sees this as a positive good.
    In my own view the real “constraint” demonstrated is on the part of the modern soldier in not simply dismissing these “meddlesome priests”.
    Can it get any worse?

    • John Ashman says

      Gabe, I would agree with you if we were in a real war. We are not.

      If we’re at war with anything, it’s reality. Because being at war with an idea is also being at war with reality. We need moderation of any kind, because it’s not an all out war and our survival isn’t even remotely at stake. And if it is, it’s because we are making terrorists left and right and forcing them to escalate their planning to increasingly dangerous levels. We are creating the danger, not eliminating it.

      • Stephen Knott says


        Ouch, I’m a “Republican.” Case closed.

        For your edification: Al Qaeda declared war on the United States in 1996, and repeated it again in 1998. But to make you feel better we’ll call it a declaration of “crime.”

        These “criminals” killed approximately 3,ooo of your fellow citizens on 9/11, and went on to kill 4 of your fellow citizens in Benghazi as recently as 9/11/12, to name just a few of Al Qaeda’s “crimes.” But judging by your view of the world, Ambassador Chris Stevens was probably up to no good. . . .

        And because “You can’t make war on against idea,” whatever that means, we’ll just keep calling Al Qaeda’s attacks a “crime.” Then the rest of the world will like us, and Al Qaeda will come to respect our unilateral declaration that it was all our fault, and they won’t attack us anymore.

        “Because one state and Washington DC was attacked, 49 other states must follow into the chaos and suffer mightily for it.” For your edification: The Pentagon is located in Virginia. So because people in New York and Virginia died, but not in your state, it doesn’t count. That is the most perverse states’ rights doctrine I’ve ever encountered.

        “We are simply murdering people in return for murders that occurred here. This is not sane, nor does it IN ANY WAY help protect Americans. Instead, it puts us in the cross hairs of every angry foreigner (and increasingly angry Americans) with weapons and an axe to grind.” So for instance, killing Osama bin Laden was murder, and did nothing but make people angry at us. I am sure Al Qaeda will leave us alone if only we were nicer to them. “We are creating the danger” . . . so heck, let’s go all the way and unilaterally disarm the United States in order to usher in a world of universal peace.

        • John Ashman says

          Reductio ad absurdum. Especially regarding the insuation re Chris Stevens.

          I was expecting a slightly more enlightened article and response from a professor. Why in the world would we want to be like the English from hundreds of years ago after running all the way here for freedom?

          Al Qaida did kill 3000 people, in an attempt to lash out at the American government, which knows no Constitutional bounds with respect to internal or foreign affairs.

          You know who else is a fellow citizen of the world? Little boys and girls blown to bits by drones and JDAMs. How much retribution is enough? 3000 children for 3000 adults? No? How about 10,000 children, 100,000 adults?

          A proper reaction to Al Qaida, given our stupidity in creating them, was to send in small teams to hunt them and kill armed militants in a swift and targeted attack, then back up. Not try to take control of an entire country, which was a war AGAINST Afghanistan. So when Mission Accomplished™ happened, that should have been the end. But it wasn’t.

          Did bin Laden deserve what he got? Sure. Did we need to be as bad as he is? No. So, you assassinated bin Laden, and how has that helped? Not at all. Not even slightly. If anything, it’s probably worse, since he was a terrible leader.

          But, please, ask yourself why it is they want to kill us and not people from other many other countries? Did they not like Farmer Brown’s cheese? Were they angry about the iPhone? Or is it because we prop up a dictatorship in Saudi Arabia, among many others? What is the headway? Is there any intended headway, or is that what is thrown out every few years, right before they prove they hate us more than ever now? What do you think would make Al Quaida stop? More dead children? A nuclear bomb? Show them that we’re more savage than they are?

          My 4 year old puts up better arguments for why she hit her class mate than you do for the US government’s actions.

        • John Ashman says

          Also, don’t forget that we have gotten more than twice American men and women killed in our revenge, even more hurt and crippled, have crippled the economy, blown $trillions, driven up energy costs and have made zero progress. So ask yourself how revenge is equal to real war, or has even the slightest benefits of war. Just from a pure economics perspective, this has gone on far too seriously long by half.

        • John Ashman says

          BTW, let’s skip the ethics problems with your argument and skip ahead to the part where you seem to suggest that the Congress, who by your standard cannot only authorize wars, but also military hostility against any organized criminal, has no actual power over oversight, nor the power to legislate independent judicial oversight over any aspect of a “war” that is dragging on into its second decade and seems to have absolutely no end date and seems to be simply creating more hostility. I suppose also that you will suggest that attempting to put in place structures that may help Americans from being prosecuted for war crimes is also off the table, as it would somehow from preventing us from doing the impossible – winning.

          What is your exact argument that states that Congress shall have no legislative oversight over war, nor the ability to create independent judicial oversight over any questionable or unpopular aspect?

        • Kevin R. Hardwick says


          I think posting on the internet, including civil and thoughtful forums like this one, invites sarcasm. And likewise, I think that it is very easy to read too quickly–I know I am guilty of that, and I would be somewhat surprised if I am the only one for whom that is true. And finally, I find that when I write on forums like this one– especially when I compose on line and without revision, as I am doing right now–my writing is often times less clear than I would like it to be. Under these circumstances, it is not always evident what intentions lie behind the words people write in forums like this, and meaningful communication is often hard to make happen.

          All of which is preface to a question that I intend seriously, and that I hope you will take at face value (ie., as conveying no hidden agenda). I ask it honestly–I don’t know the answer, and would value reading your thoughts on the matter.

          At what point does the action of a non-state organization–a private organization, for lack of a better term–rise above criminality and become war? To pick a reductio ad absurdam, I would imagine that were the American Historical Association to declare war on Canada, no one would expect Canada to respond to that with military force. And I would imagine that this would be so even if those left-wing, communist-sympathizing, bomb-throwing radicals that we have both likely encountered at certain forums of the AHA actually resorted to using bombs.

          One possible answer–I would guess that there are persons who would advocate for it–is to argue that there is no difference other than scale and degree. If that is so, we would use domestic police and the criminal law when it is most efficacious to do so, and military force when that was the most efficient way to handle a situation. Someone who argues this way is likely a realist, who sees the situation as all coming down to force and power.

          And maybe that is the right way to think about it. But I take it for granted that if we care about liberty, we also care about the rule of law. I do not think of liberty as being possible without law. And it does seem to me that law functions differently when we are at war than when we are dealing with criminals–that the distinction matters for the kinds of rules we apply to ourselves.

          In this sense, I thought the fact that you introduced to the conversation–that Al Qaeda declared war on the United States–is not entirely relevant. It is not sufficient for a private, non-state entity to declare war, for war to be in fact the operative state of affairs. What matters are the standards to which we hold ourselves, and neither Al Qaeda nor any other non-state actor can impose that upon us–that is for us to determine for ourselves.

          And that brings us back to my question–in a world that contains powerful non-state actors, when do we apply the rules of war, and when the rules of criminal law? If what matters are the principles we apply to govern ourselves, when do we choose the one set of rules of conduct as opposed to the other?

          I will look forward much to reading your thoughts on this.

          As an aside, I read your study of Hamilton with much profit–easily one of the best studies of a founder (and his legacy) I have read. So when I write that I look forward to reading your thoughts on this, I mean it.

          Well wishes,

      • Stephen Knott says

        Kevin and Gabe,

        Thanks for your thoughtful and well-informed comments

        Kevin, I don’t see Al Qaeda as a private, non-state operative. Going back to immediate pre-9/11 days they were sheltered and succored by the government of Afghanistan, and after 9/11 by elements in the government of Pakistan. President Bush was right to hold states responsible for allowing terrorist organizations to operate within their territory. If you do not hold host states accountable, any semblance of international order disintegrates. Al Qaeda was, and to some extent still is, the beneficiary of state support.

        All of this boils down to the question of whether terrorism is a law enforcement problem, with all the rules of due process that apply in that realm, or a military matter. The former assumes KSM is innocent until proven guilty, the latter does not. The law enforcement approach prevailed in the United States until approximately 8:46 a.m. on Spetember 11, 2001. The problem with the law enforcement approach is that it is reactive; you wait until an attack occurs, and then you launch an investigation. The FBI would be dispatched to Yemen, or wherever, under the hopes that the host government would allow an investigation to proceed. (See for instance the stonewalling that the FBI encountered when it attempted to investige the Khobar Towers bombing in Saudi Arabia.)

        President Bush rightly understood that you could no longer afford to wait when dealing with a group like Al Qaeda, which was determined to acquire WMDs (See the comments of former Clinton adminsitration official Steve Simon on Al Qaeda’s hoped for inflicting a “Hiroshima” on the United States). When dealing with international terrorism, if you don’t preempt, you are constantly on the defensive. Bush took the war to Al Qaeda, and distrupted their ability to strike the U.S. If we revert to a law enforcement approach, be prepared for casualties here at home. That may be a price some are willing to pay, but I’m not, and I’m not sure any sitting president should be willing to pay that price when he has the constitutionally supplied tools at his disposal to prevent it from happening.

  2. John Ashman says

    You seem to conflate actual war with the crime of terrorism, like most Republicans.

    From 1828, for your edification –


    “WAR, n. [G., to perplex, embroil, disturb. The primary sense of the root is to strive, struggle, urge, drive, or to turn, to twist.]

    1. A contest between nations or states, carried on by force, either for defense, or for revenging insults and redressing wrongs, for the extension of commerce or acquisition of territory, or for obtaining and establishing the superiority and dominion of one over the other. These objects are accomplished by the slaughter or capture of troops, and the capture and destruction of ships, towns and property. Among rude nations, war is often waged and carried on for plunder. As war is the contest of nations or states, it always implies that such contest is authorized by the monarch or the sovereign power of the nation. When war is commenced by attacking a nation in peace, it si called an offensive war, and such attack is aggressive. When war is undertaken to repel invasion or the attacks of an enemy, it is called defensive, and a defensive war is considered as justifiable. Very few of the wars that have desolated nations and deluged the earth with blood, have been justifiable. Happy would it be for mankind, if the prevalence of Christian principles might ultimately extinguish the spirit of war, and if the ambition to be great, might yield to the ambition of being good.
    Preparation for war is sometimes the best security for peace.”

    We are NOT at war with anyone. We are simply murdering people in return for murders that occurred here. This is not sane, nor does it IN ANY WAY help protect Americans. Instead, it puts us in the cross hairs of every angry foreigner (and increasingly angry Americans) with weapons and an axe to grind.

    The fact that you don’t even understand the definition of “war” is extremely problematic and is why people like yourself shouldn’t be entrusted with waging it.

    Terrorism is a crime. Not war.

    • Stephen Knott says

      John, I will give you this — you are an expert on the absurd. And your four old probably has a better grasp of the facts than you. Although I feel sorry for he/she.

      One additional point of edification before you reattach your tin foil hat: the U.S. did not create Al Qaeda. And for you to claim that there is a moral equivalence between the American military and Al Qaeda is about as disgusting as your argument that because no one died on 9/11 from your state it was not your problem.

      • John Ashman says

        The US didn’t create Al-Qaeda, but it sustains it through unconstitutional meddling in Middle East affairs, generally through monetary and military aid, things which simply don’t exist in the Constitution.

        My point, which flew over your head, is that spreading around the suffering to the other states by getting their children killed in battle is not something to be taken so vacuously and righteously, aside from the economic impact. There was virtually 100% support for a strong retaliatory strike, but that support is quickly approaching exclusively the purple heart Republicans that feel that there is no overreaction to ridiculously large, no pain too large to exact the largest retaliation possible.

        The only thing that makes 9/11 my problem is an out of control, Constitution-ignoring, oversight-rejecting government created 20o years ago. Bullies attract violence. Americans shouldn’t have to die because of a bully government, let alone die to extract vengeance for it.

        That’s why we have a Constitution. You should read it. Please. Also, take a dictionary.

        • Stephen Knott says


          Right, the Constitution prohibits “monetary and military aid” to the Middle East. I just found it in Article 9, section 3, of “Ripley’s Believe It or Not.” Thank God the nation has people like you to keep us edified….

          • John Ashman says

            Also, please read Article 1, Section 8, Clause 1.

            What are the three legitimate purposes for taxation? I don’t see “throwing money at corrupt governments” in there, nor do I see it in any of the subsequent powers of spending money.

      • John Ashman says

        You said this – “modern notions of a limitless “right to privacy.”

        As though privacy just popped up out of nowhere. Privacy is clearly enunciated in the 4th Amendment, but is also a natural right of people everywhere to seek privacy and not have it invaded.

        The 4th Amendment doesn’t say “unless some other person makes a threat”. The Constitution was created to prevent this kind of intrusion, back when people believed that freedom and privacy was more important than safety. But thankfully, we have lawyers telling us that, no, our freedom, our privacy is NOT more important and we will be protected, even if you have to get us killed to do it.

        The idea that our right to privacy is being treated as “limitless” is mightily absurd. We have traffic cameras spying on us, our phones calls recorded, our internet communications copied and searched, all without proper warrants. I suspect that warrants are seen as an ugly inconvenience, having to ask permission to infringe on someone’s right, simply because you suspect them of something. Government’s feeling is that “well, we could always spy on you, we just didn’t have the technology and now we do”. But that wouldn’t have flown 200 years ago and certainly shouldn’t do today.

        You’re advocating continued violation of the Constitution for safety, quite frankly, that’s overrated, especially when it comes at the end of a gun.

  3. John Ashman says

    I’m also very interested in what you see as how the “war” will wrap up and when, since we’re beyond 2x WWII.

    Because there are thousands upon thousands of people who are related to innocent people that our government killed. All indications are, the more we blow up innocent people, the more terrorists we create, ensuring a never-ending state of economic and social stress on the nation. How many people are now bankrupt for your wars? How did you protect them? Further, because one state and Washington DC was attacked, 49 other states must follow into the chaos and suffer mightily for it? We have now gotten more Americans killed in retaliation than were ever killed on 9/11. How is that helpful? Because we killed a lot of people too and “that will show’em”? It pretty much showed them that we’re the bad guy. You can’t just kill half a dozen children and just “write it off” as their own fault.

    Wars have beginnings and ends. This has no end. Because it is a crime. Crime has no end. Wars end. It needs to end if you want to even retroactively claim that it was a war. Police power doesn’t allow for murdering innocent people and mass collateral damage. So you simply call it a war. And get upset when people try to even bring it under the tiniest amount of control.

    You can’t make war on against idea. The “war on terror” is a terrible oxymoron.

  4. Kevin R. Hardwick says

    Historically, the United States government has grown in its scope, scale, and expense most rapidly after wars. For this reason, anyone concerned to prevent increase in scope, scale, or expense of government must be especially concerned when we invoke war. It matters, if we care about limited government, whether we define something as war, as opposed to crime.

    It is also true that during time of war, American citizens historically have been asked to accept reductions in their freedoms–sometimes for certain classes of citizen, and sometimes for all. In some cases, this reduction in liberty consequent to war has been permanent.

    All of this, I hope, is common knowledge.

    The problem with the current security state is that the grants of power to it are vague, and the scrutiny to which it is subjected is limited. If the ultimate guarantor of civil liberty is the vigilance of enlightened citizen, then any institution removed from public scrutiny is one that is fraught with at least some civic peril.

    The issues here concern the balance of security and liberty. Barring existential threat to the integrity of our public life as a people (per Donald Lutz, the defintion of a people is one of the functions of a constitution), it is difficult to justify unlimited grant of power to a secret organization. If, as a people, we are taught to view the government as something alien from and apart from ourselves–as the “other” against which we define ourselves–then we should be especially suspicious of organizations that operate in secrecy. This is a case, it seems to me, in which two conservative values stand in opposition (security and ordered liberty vs. a due and proper suspicion of power).

    • John Ashman says

      I think there is a further danger when the enemy is not a uniformed soldier in the employ of a state government.

      The “enemy” is simply who the government says it is. There can always be an enemy, even if they stop fighting. A person can be deemed a terrorist by affiliation or by contents of a phone call or message. It may be a person who is angry and says “scary” sounding things, but will never commit such a crime. And the government will naturally evolve itself to either create sufficient terrorists to rationalize its tactics, or will lower the bar for being a “terrorist” continually, in order to ensure the proper supply to create a demand for its “services” to the American people.

      This is why we can no longer afford to accept the term “war on terror” because it is not a war, and will never end as long as the government wishes to keep it going.

  5. gabe says

    With respect to war and the growth of government, this has invariably been the case. I can think of only two instances in American History when this did not occur: The Revolutionary War (of course, we had to first develop a government) and contrary to popular opinion, the Civil War.
    See the Great Allen Guelzo at following link:
    We had to wait for the Progressives to really get us started on this monstrous governmental overreaching. We still suffer from this today.

    With respect to the current security state, I agree with Kevin. It is the apparent unlimited scope of the “security measures” which cause me some measure of discomfort. There is, indeed, a place for intelligence gathering AND, further, by nature, some of this must remain secret. However, what we have here is security on steroids to accompany a regulatory state on steroids. Perhaps, it is time to go back to John’s recommendation as to language – look up Prudence and maybe we should as a government practice it.

    Lastly, John I agree with you that this should not be called a “War on Terror,” simply because we are not fighting it as a war but rather as a criminal action. I believe that was the unstated premise of Professor Knott’s and the explicit premise of my comments. Whether one position is correct or not, it is, to my mind, unconscionable to place our servicemen and women in such an untenable position as to be unable to defend themselves because of highly questionable Rules of Engagement developed by uninformed staff officers or political appointees.

  6. Kevin R. Hardwick says

    The sentence from Professor Knott’s posting that I thought was misleading was the following:

    “In other words, government officials will have to joust in front of a judge with a lawyer concerned about the civil rights of a suspected Al Qaeda sympathizer living in the United States.”

    But this is a mischaracterization of the arguments of those who favor greater oversight of the massive and underscrutinized security bureacracy. None of us here, I suspect, will lose much sleep if, say, the privacy rights of an active Al Qaeda operative are violated.

    What is at stake, rather, is the privacy of the thousand (or whatever) perfectly innocent American citizens whose rights had to be violated in order to locate the Al Qaeda operative. So it is a balancing question–how much of our heritage of rights do we sacrifice, in order to locate and stymy the threat? And how do we even make that assessment, as American citizens, when the whole affair, up to and including the prosecution of the operative, is conducted in secret? Professor Knott would seem to prefer that we take the government’s word for the matter, when government spokesmen and officials claim that they have hit the right prudential balance of security and liberty. Indeed, the very scale of the threat is, at the moment, kept secret from the vast majority of American citizens. So we have to take th government’s word for it that the threat is both very real and of suffiient immediacy and magnitude to warrant some degree (the exact degree again being kept in secret) of sacrifice of liberty.

    I also question the distinction that Professor Knott draws between (his term) “sympathizer,” and (my term) “operative.” I take it as axiomatic that for criminal action to be demonstrated, Mens Rea must be proven. It may be reprehensible, but it is not criminal, for me to express in some vague fashion “sympathy” for Al Qaeda. Who gets to define what sympathy is, anyway? If I write, for example, that there may be, in this and such a situation, some justice to some position taken by some group that has some affiliation with Al Qaeda, have I expressed “sympathy” for Al Qaeda? Do we even want officials of our government, operating in secret, to be in the business of trying to figure that out? Isn’t there considerable leaway for government abuse, when the government tries to get into the business of policing thought rather than action?

    Shouldn’t we all pause for a moment and reread George Orwell?

  7. Kevin R. Hardwick says

    Re Guelzo’s argument at Heritage. Note first that Guelzo wishes to let Lincoln off the hook for expanding the scope and scale of the Federal Government. But that is not quite the same thing as arguing that the war itself did not cause significant expansion in the national government.

    Second, Guelzo’s own statistics, or at least one set of them, do not support his arguent. Compare the expenditures of the Federal government that he cites for 1860 with those for 1865 and 1871. If we compare 1865 and 1871, what we see is a significant decrease in federal government expenditures. But of course, if we are looking for a rough yardstick by which to measure the causality of the war with regard to rising expenditures, these are not the figures to compare. Rather, we should compare the pre-war expenditures with those of 1871–and what we find when we do so is that in 1871, those expenditures were almost twice those of 1860. By that yardstick, there is greater plausibility that something important happened as a result of the war.

    Finally, Guelzo’s argument fails to contend with the strongest arguments for the other position–those of Richard Bentzel in his fine 1990s book YANKEE LEVIATHAN. If anyone has interest, you can find the brief description of that book at amazon here:


    I don’t think we should dismiss Guelzo’s argument out of hand–he is a fine historian, and he adduces warrants for his contentions that merit attention. But I do want to suggest that Guelzo’s heritage essay should not be taken as the last and final word on the matter. Bentzel’s discussion of American state formation is formidable, and should not lightly be dismissed.

    • gabe says


      Thanks for the response. Of course you are correct that governmental growth did occur during this period – and in fact it may be attributable to the tendency of war to provide a “steroidal” impetus to government.
      Two points:
      One; some of this growth would have occurred irrespective of the Civil War as new schemes of management (modeled after private business) came to be accepted, along with expenditures required for the re-incorporation of the seceeding states into the Union and the securing of rights for Freedmen.
      Two: The level of growth does not in any way compare to what we were subjected to by Wilson and the Progressives and, to my mind, does not indicate the same radical transformation of “political theory” espoused by Wilson, Roosevelt, etc.
      Difference in both kind and degree.

      take care

  8. Asterisk says

    I’m usually baffled by “conservatives” who seem to advocate the modern novelty of legislative supremacy at the expense of an 800-year tradition of common law and equity. Judicial process generates law gradually, as a product of accumulated experience; the legislative process imposes abstract doctrines universally. How can anyone demeaning the former in favor of the latter be called a “conservative”?

    Another unprecedented novelty we see coming from so-called “conservatives” is this bizarre application of the paradigm of war and defense to what are clearly questions of domestic civil policy. The attempt in this article to construe the NSA’s recently-revealed activities as falling within the realm of military defense would stupefy the men behind ‘Publius’. The “war on terror” amounts to the government’s attempt to restrain some civilians from harming the life, liberty, and property of other civilians. This is the very definition of criminal law, which is entirely and properly within the domain of the judiciary.

    These disingenuous attempts to construe mere crime as armed conflict solely because the criminals are organized, or come from another country, or are motivated by ideological fanaticism are pure sophistry. Let’s be absolutely clear here: the United States is not presently engaged in any legally-designated armed conflict. There are no “enemy combatants” in existence at the present moment, because there are no enemy states against whom the US is engaged. The operation of the judicial system continues unabated, with no insurrection, invasion or or other disorder present to undermine its ability to function. The constitution continues to be the supreme law of the land, and officials in any branch of government who exceed the authority it grants are acting unlawfully.

    I simply can’t comprehend the notion that we should dispense with the fundamental elements of the rule of law which are the foundation of stability and prosperity in our society simply because impoverished goat herders living in caves half a world away don’t like us and occasionally try to blow vehicles and buildings up. If one regards Islamism as an existential threat to Western civilization, just how feeble must they think Western civilization is?

  9. says

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  10. Stephen Knott says

    The “bad old days” of Abraham Lincoln says it all.

    “The State-Peoples”? This doesn’t strike me as the language of a strict constructionist. “We the people of the United States” is the phrase used by those who refer to the actual language of the Constitution. “The State-Peoples” is up there with Justice Douglas’s privacy “penumbra” in terms of its creativity….


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