War by Fiat: A Response to Stephen Knott

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.

Greg Weiner

Greg Weiner is a contributing editor of Law and Liberty.

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  1. gabe says


    Pretty darn persuasive – and yet I must ask: Does, or should, a judicial body review the contemplated actions of a SWAT Team, as it prepares to take on some criminal group? Even if we concede that terrorism is somewhere between war and crime, does this mean that in such a SWAT case we would we have judges setting the Rules of Engagement? This is currently done after the fact – not before as is presently being done in the US Armed Forces.
    Under the Constitution the Congress is to establish the rules regarding our Armed Forces, why do you find it acceptable that this should pass to judges?
    Their is no warrant in the Constitution for the Judiciary to perform this function.
    If the congress wishes to do so, fine – they are, at least in theory, accountable to the people. Judges are not!

    Lastly, you state that the Bin Laden operation was ultimately successful. Correct, however, it took ten long years. How many times were operations delayed or stymied because of the “palsy of lawyers,” we do not know – but we do know that some did occur. And while I generally agree with you on the issues of NSA practices, still, we must recognize that Bin Laden would never have met that fate had we not utilized tactics that were frowned upon by the Courts and later, venal “CYA’ing” politicians.

    If abuses do occur in defense operations, there is always a remedy for abuse of power – impeachment! It is a political remedy not a legal one and would,like so much else, best be left to the Congress. The nature of the current “war” or “gray” war is such that the Judiciary is the least prepared to deal with it and ought to defer to both the Congress and Commander-inChief.

  2. Greg Weiner says


    Thanks for the thoughtful reply. A distinction needs to be drawn between policy by law and policy by judge. I am advocating the former. I can imagine circumstances in which judicial review is appropriate (issuing warrants for wiretapping is one; establishing military rules of engagement is not). While I certainly appreciate that military lawyers hold considerable sway, and perhaps unreasonably so, today, I am unaware of civilian federal courts having prior approval over rules of engagement, as I understand you to suggest (“as is presently being done in the U.S. armed forces”), but of course am open to being corrected on that score. That said, part of my quarrel with Professor Knott lies with inviting Congress into the debate and then criticizing it for participating, as you seem to do in referring to “politicians” as “venal” for objecting to “tactics” — I assume you refer to enhanced interrogation/torture, but perhaps not — used in the bin Laden hunt. When Congress attempted to get involved in precisely that case, President Bush responded with a signing statement indicating his intent to ignore the law. That said, I agree with you that the best solution is political, not judicial, except insofar as Congress chooses to establish clear rules according to which judges can get involved in areas in which it makes sense (again, for example, issuing warrants for listening to phone calls). But if the political solution is wholly internal to the executive branch, we have the total concentration of powers that Publius in Federalist 47 calls “the very definition of tyranny.”

    • gabe says

      Actually, I am pretty much in agreement with you. I apologize for the somewhat incoherent comment that I made. I must be excused as during my commenting I was “compelled” to comment on my future daughter in laws “bridal hairdo.” If that is not distracting, I don’t know what is.

      Is not there some constitutional protection for an old knucklehead, such as myself, against endangering his life & liberty in such a situation. Mr Madison, where are you?


      • Greg Weiner says


        I am gratified by our agreement. Meanwhile, as for the distractions, Madison would say you are absolved by a law higher than the Constitution…

  3. Kevin R. Hardwick says


    A quick and shameless plug for your fine study MADISON’S METRONOME. I added it to my summer reading queue at the urging of a political theory colleague, and found it quite usefully thought provoking. Really well done, and well worth the read.

    Anyway, more to the point of this thread, how does one make the political solution work, given the secrecy constraints of the national security bureacracy? In the long run, political oversight works only to the extent that the incentive structure favors it, and the incentive structure in politics is geared quite properly to the attentiveness and vigilance of the citizenry. Under these circumstances, we arrive at what looks to me like an ugly paradox–to preserve republican democracy, we have to violate the distribution of institutional power that provides the internal checks and balances that, well, preserve republican democracy.

    Am I thinking poorly or naively here?

    Thanks in advance,

    • gabe says

      Another spot-on post.

      Greg / Kevin:

      I am curious what folks think about the fact that there is, and has been, information shared with House and Senate Select Committee’s (Pelosi’s denial to the contrary) on Intelligence by the CIA, NSA, etc concerning these activities.
      How much, I, nor no other citizen can know – but consistent with our discussion, to what extent does this qualify as “transparency (poor term, but I can think of no better at the time). If even some of our elected representatives are aware of this, and condone it, is the fault with just the Executive, the Agencies, or the Congress; and to what extent must or should the Judiciary defer to it?
      Or can they (Executive / Congress) all hide behind their own little rules.

      At the same time, I am somewhat disconcerted to think that some intel operations would be exposed via leaking, etc.
      Any thoughts on this.


    • Greg Weiner says


      Thanks for the plug! Re: your concern, certainly secrecy is an issue, but I would offer the observation that the need for operational secrecy, in which case I can see excluding the legislature, is different from the need for secrecy in policymaking. All the evidence indicates that Presidents dramatically over-classify and often do so not to protect legitimate secrets but to avoid embarrassment — while promiscuously leaking when it supports whatever case they wish at the moment to make. (See Daniel Patrick Moynihan’s book “Secrecy.”) In terms of the institutional incentives, I’m not entirely sure I follow your point and therefore may not do justice to it, but I would cast the problem in the following way: Congress no longer has a collective interest in institutional self-defense/assertion because members are only interested in individual re-election, and that for the sake of the office and not for the power it confers. This is a dramatic break from Publius’ regime, and I don’t know how we restore it except by the people getting wise to it.

      • Kevin R. Hardwick says


        A quick post on secrecy. I wrote far too elliptically above, and will try to find time today to clarify what I meant by institutional incentives.

        Anyway, before I returned to university to pursue the Ph.D., I worked for several years as an archivist at the National Archives. One of the ways that NARS trains young archivists is to facilitate in various ways conversations with more senior archivists in others of the various branches, and so I got to know several of the professionals who performed the careful and often tedious work of records declassification. As you might imagine, that is a big deal at NARS, since secrecy designations persist long after the records themselves are no longer actively used.

        Records are classified for a variety of reasons by the bureaucratic offices that generate them. On some occasions–especially at the highest level of policy making, it may well be that some papers are classified in order to prevent or mitigate embarrassment. It is these high level papers that, from the point of view of democratic accountability, most concern us. But such papers account for only a small percentage of the classified documents.

        The vast majority of documents are classified in the various gradations of secrecy at the office level. As a practical matter, it is easier and less expensive for an office that might on occasion handle secret material, simply to classify all of the papers that it produces. For the high level offices that most concern us, everything they do will be organized into records categories–called record series–that will automatically be classified at the appropriate level. Offices will organize this in such a fashion as to be most efficient and least labor-some for themselves, and that means that lots of material that really does not qualify as worthy of classification will nonetheless be classified. This is because no one wants to take the time to review it, and because the default is, quite properly, to classify unless you have taken the time to ensure that no damage will be done by not classifying.

        We have a serious problem with over-classification of documents. Some of it occurs for what we might call “weaselly reasons.” But most of it–the vast majority of it–occurs because of internal bureaucratic procedures that, taken on their own terms, are perfectly sensible.

        It really is the case that power corrupts, and that powerful people do things for weaselly reasons, at least on occasion. But generally speaking, I believe much of the ill in the world occurs for practical, inadvertent and unintended reasons. The proliferation of over-classified or unnecessarily classified documents provides a nice example of the rule of unintended consequences. It is, in my view, a real and meaningful threat to the functioning and integrity of our system of government. But it is not, on the whole, a function of malice or cowardice, or the desire of powerful people to escape public accountability.

        The bureaucratic fact that secrecy is the default when the appropriate offices produce paperwork makes it far easier for powerful people to escape public accountability. And that of course encourages questionable decision making. But all of that may happen quite apart from conscious malice on the part of powerful people.

        Please bear in mind that I am writing from memory of experiences now a good many years in the past, so I may well be misremembering some of the particulars. But I am reasonably sure I have the broad outlines of what I write above more or less correctly.

        All best wishes,

  4. John Ashman says

    Thank you Greg. I was feeling a bit alone in my thinking for a few days. Feel much better now.

    Our persistance in calling the North/South War a “civil war” is a stain on our educational system, just as calling the our response to terrorism a “war” is.

  5. Delane Clark says

    Sympathetic to both Weiner’s and Knott’s arguments, I find myself desperately trying to square this circle.

    Might it boil down to an issue of trust? That is, while I, more than less, trusted Bush and his administration for the conduct of foreign affairs, I do not trust Obama and his. Why?

    It’s not simply partisanship. Rather, it’s an issue of their relative fidelity to the “patria.” I note that the Left’s criticism of Bush and his policies, when it wasn’t dripping with personal animus and the prospect of immediate political advantage, was motivated largely by a desire to protect the “other”, to assert their rights against our interests, real or perceived. Think of all the folderol over what transpired at Abu Ghraib. The Left prides itself, preens even, for its defining “beyond-the-nation-state” schtick. More than just Americans, much more so, they fashion themselves citizens of the world. As a result, I do not because I cannot trust them to protect and defend reliably that which is uniquely American.

    Whatever else one may think of Rand Paul and the many others on the Right he seems now to be representing (on this issue anyway), I don’t doubt for a minute that his chief concern is for the protection of Americans and the securing of their rights. To be sure, he may be wrong in his methods, even dangerously so as Knott argues quite well, but his and his sympathizers intentions are nonetheless clear.

  6. Stephen Knott says

    To use the word “savage” in reference to Lincoln’s policies is inaccurate and repulsive.

    I would also politely suggest that you examine your own penchant for utilizing “beams” of ridicule.

    • Peter Haworth says

      Professor Knott,

      You make a fair point, and I will try to mindful of this in the future. Also, we can leave the legacy of Lincoln to another day.

    • John Ashman says

      Stephen, I noticed that you have avoided the questions I’d asked the other day? Where’s the Constitutionality? When is the end of the “war” on “terror”? What is the end game? When are the terrorists going to stop taking our freedom and prosperity? How many dead innocent children of theirs is sufficient to teach them a lesson?

      Be honest. We have no War on Terror, we have created a “Way of Life that will always include Terror”. They are symbiotes. Terror requires a “War against Terror” and the “War against Terror” requires “Terrorists”, which are easily produced in enormous quantity. The government is in love with terrorism at this point. It’s a codependent relationship and you refuse to break up with each other.

  7. 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 langauge of the Constitution. “The State-Peoples” is up there with Justice Douglas’s privacy “penumbra” in terms of its creativity….

  8. Peter Haworth says

    Professor Knott:

    Just take a look at Madison’s response to Patrick Henry during the VA State Ratification Debate on the meaning of “We the People.” He made it clear that the phrase implied the separate people of each state. “State-Peoples” is obviously being used in the essay that you are criticizing to accurately represent the reality that was understood by the States at the time of Ratification (whose understanding of what Constitution implied at the time of Ratification is authoritative), in this sense it is quite a bit more accurate than the fraudulent way “We the People” has been employed by nationalist revisionists for the sake of justifying all sorts of federal encroachments on the States reserved powers.

    Furthermore, an argument has also been made that “United States” in “We the People of the United States” was included as a placeholder and tantamount to listing each of the states separately as had been done in the Articles. The Philadelphia Convention was going out on a limb in even proposing the Constitution given the difference between what they did and what they were authorized to do; thus, they did not know which States would ratify and, hence, needed to include such a placeholder that would represent whichever ratifying States realized the requisite nine (or more) for Article VII compliance.

    Furthermore, I could just deflect the beam of ridicule back towards you via highlighting that you have no problem with Lincoln’s savage violations of legal liberties for the purpose of silencing his Northern Democrat political opponents. If we extended your logic, all we would need is a few active and difficult to apprehend terrorist cells running amok for the president to start jailing his political opponents who criticized him for being heavy handed and/or his “War on Terror” policy.


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