A Reply to Stephen Knott’s “War by Lawyer”
Proponents of the Global War on Terror are often quick to instruct us that terrorism represents a new threat demanding new thinking—both tactically and legally—except, that is, when it better suits their argument to invoke precedent, in which case terrorism becomes just another act of war to be fought like wars always have been. Steve Knott is one of the few advocates of a militarized terrorism policy to whom we can look for consistency: He believes terrorism is an act of war and that our response to it is war, simply. The problem is that terrorism is different. Conceived as traditional war, it is a war without end that creates powers without boundaries. Unless we find new forms that balance security and liberty, Steve’s position may cost us in constitutionalism what it gains us in clarity, for policy by executive fiat is as undesirable as “war by lawyer” is impractical.
Steve notes, correctly, that conservatives—at least of a certain stripe—have long demanded judicial deference. But there is a substantial constitutional difference between judicial deference to Congress and judicial deference to the executive. It inheres in the essential Madisonian distinction between the people abusing each other through the agency of Congress versus the government abusing the people.
Madison renders the distinction, which is decisive yet often overlooked, explicitly in Federalist 51, noting that majoritarian oppression is to be averted through the extensiveness and diversity of the republic—thus no judicial involvement is necessary—whereas governmental abuse is to be prevented through the separation of powers, in which the exercise of judicial power is certainly a part. This is the distinction Madison had in mind when, introducing the Bill of Rights, he said that “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or the executive.”
Judicial interference in lawmaking is thus unnecessary and improper. It involves unelected judges usurping the branch of government empowered to make rules and thus positioned most closely to the people: the judiciary, in other words, acting as guardians protecting the people from themselves. By contrast, as for the case of the government oppressing the people, there is a long tradition of judicial resistance to executive abuse.
To take the simplest case, it is hardly a judicial usurpation of the President’s law-enforcement powers to demand a warrant before the FBI conducts a search. It is an instance of separation of powers.
It is the separation of powers to which the founders primarily looked to safeguard rights—this as opposed to a parchment proclamation—yet this is precisely what Steve’s position would obviate by unifying all powers to oppose terrorism in executive hands. If I understand him correctly, he opposes not only a class-action suit against the NSA on hazy grounds—the I’m-going-to-court route—but also even a process of judicial review explicitly created by law, as Senators Leahy and Lee propose.
To be fair, on Steve’s analysis, the analogy I have drawn is inapt, since terrorism is an act of war rather than a crime: judicial review of a search warrant is a very different thing from judicial review of a drone attack. He points, thus, to Lincoln’s use of executive powers to prosecute the Civil War. But there are problems with that analogy too. One is Lincoln’s consistent refusal, legally, to acknowledge a state of war between foreign enemies during the Civil War, which would have implied recognition of the South as a nation rather than a lawless rebellion. Instead, he relied on such powers as the constitutionally prescribed suspension of habeas corpus during times of rebellion (his own suspension was constitutionally suspect, but Congress subsequently ratified it). Second, the Civil War, unlike terrorism, involved identifiable combatants fighting under officers, in uniforms, for defined periods of time, between attacks and surrenders. It had, in other words, a beginning and an end and so, therefore, did the extraordinary powers Lincoln claimed.
But third, and most problematic, exceptions are not rules, and the Civil War was the mother of all exceptions. The circumstances were extraordinary—not, on Burkean terms, to be cited as precedents except in a comparable circumstance, which terrorism is not. Many of Lincoln’s powers were claimed under the misty power of prerogative, Locke’s right of the executive to act “without the prescription of law, and sometimes even against it.” The problem with the Bush and now Obama doctrines of presidential power is that they mistake acting without or against law as precedents for acting lawfully, a clear misunderstanding of Locke’s meaning.
Ultimately, in a legal sense, terrorism resides in a gray space between crime and war. Absolutism from either side is, in this as in most matters, unhelpful. This requires precisely what proponents of the “War on Terror” tell us, situationally, is necessary: new ways of thinking, and perhaps new legal forms.
Yet, puzzlingly, Steve seems to resist this even while explicitly acknowledging that Congress shares constitutional authority with the President to set terrorism policy: “Simply put,” he writes, “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.” Despite this acknowledgement, at least if I correctly understand, Steve is uncomfortable with attempts by Congress to participate in ways that do not involve total concentration of authority in executive hands.
It is true, to be sure, that participation of judges in this process involves drawbacks. Secrecy may be one, although the FISA court preserved it. Dispatch might—probably would—be another, although President Obama claims drone attacks are planned deliberately anyway. But in any case, the key is the involvement of law, and that means the involvement of some authority outside the executive branch.
Steve quotes a CIA operative who led the unit that pursued Osama bin Laden to the effect that the agency is “palsied by lawyers.” It is worth observing that, palsies and all, that operation succeeded. By all accounts the NSA has hardly, by contrast, been encumbered by the burdens of law. Phillip K. Howard, as Steve correctly notes, argues that excessive law can be costly. Lawlessness can be too.