Lawyering The War To Death

"Never in the history of the United States had lawyers had such extraordinary influence over war policy as they did after 9/11." Those are the words of Jack Goldsmith, the Harvard law professor who was one of those lawyers, as head of the Justice Department's Office of Legal Counsel in 2003 and 2004. They appear in his book "The Terror Presidency," hailed as a criticism of the Bush administration's legal policies, which in part it is. Believing that some of his predecessor's opinions, particularly two on interrogation techniques, were "deeply flawed," he reversed them. He argues that the administration would have ended up with more latitude in fighting terrorism if it had worked with Congress to get legislation, even if those laws would not have been as expansive as the administration wanted. It's a serious argument, and he also presents fairly, I think, the opposing view that such restrictions would make it harder to protect the American people.

But anyone who goes beyond the first newspaper stories and reads the book will find another message. For one thing, Goldsmith also supports many much-criticized policies — the detention of unlawful combatants in Afghanistan and their confinement in Guantanamo, trials by military commissions, the terrorist surveillance program. And he rejects the charge that the administration has disregarded the rule of law. Quite the contrary. "The opposite is true: the administration has been strangled by law, and since September 11, 2001, this war has been lawyered to death." There has been a "daily clash inside the Bush administration between fear of another attack, which drives officials into doing whatever they can to prevent it, and the countervailing fear of violating the law, which checks their urge toward prevention."

It was not always so, he points out. In 1942, Franklin Roosevelt ordered military commissions to try the eight Nazi saboteurs who had landed on our shores; the Supreme Court unanimously approved, and six were executed six weeks after they were apprehended, to the applause of the media of the day. But FDR "acted in a permissive legal culture that is barely recognizable to us today."

In the wake of Vietnam and Watergate, Congress passed laws that criminalized military and civilian officers who broke the rules on electronic surveillance and detainee treatment: "the criminalization of warfare." Its ban on political assassination deterred the Clinton administration from gunning down Osama bin Laden. The CIA has become so wary of possible criminal charges that it urges agents to buy insurance. Developments in international law, especially the doctrine of universal decision, also threaten U.S. government officials with possible prosecution abroad. All of this creates a risk-averseness that leaves us more vulnerable to terrorists.

The CIA today employs more than 100 lawyers, the Pentagon 10,000. "Every weapon used by the U.S. military, and most of the targets they are used against, are vetted and cleared by lawyers in advance," Goldsmith notes. In this respect, the national security community resembles the larger society. As Philip Howard of Common Good points out, we are stripping jungle gyms from playgrounds and paying for unneeded medical tests for fear of lawsuits.

The audiotapes released last week of Khalid Shaikh Mohammed's interrogation remind us that we are faced with evil enemies and that getting information from them can save lives. Goldsmith, who withdrew his predecessor's interrogation opinions, nevertheless understands this and makes a strong case that our national security apparatus is overlawyered.

Most Americans seem to agree; an Investor's Business Daily poll shows that more than 60% of Americans — and majorities of Democrats as well as Republicans — favor wiretapping terrorist suspects without warrants, increased surveillance, retaining the Patriot Act and holding enemy combatants at Guantanamo. Unfortunately, the 30% or so who disagree are disproportionately represented in the legal profession and in the media.

The 1970s laws that have helped produce the overlawyering of this war were prompted by the misdeeds of one or two presidents. But they will hamper the efforts of our current president as well as his successors in responding to a threat that is likely to continue for many years to come.