Thursday, August 27, 2009

The Impact of Blind Legalism

Daniel Henninger has an excellent article in the Wall Street Journal declaring that "The War on Terror is Over." But more to the point is the subhead, "Lawyers are about to smother [it]." Henninger points out the idiocy and danger of relying on a legalistic outlook for questions of national security, in the wake of the Lockerbie bomber release, and the Obama administration's assault on the CIA. And he offers this appropriate quotation from Oliver Twist,
Faced with a similarly fastidious assertion of the law's triumphal self-regard in "Oliver Twist," Mr. Bumble replied: "If the law supposed that, the law is a ass—a idiot." Mr. Bumble added something acutely relevant to what is happening to the war on terror: "The worst I wish the law," said Mr. Bumble, "is that his eye may be opened by experience—by experience."
That passage comes to mind every time I hear some naive fool bleating about the "rule of law," and applying that concept to things where it has no real relevance, such as secret operations by the CIA outside the U.S. Henninger notes the real impact of the classified document dump from the CIA.
What the release of the Helgerson report mainly does is open the dams on detainee lawsuits. 

This litigation nightmare, together with the chilling effect of the special prosecutor's potential indictments, has as its goal making the price of aggressive interrogation too high under any circumstance, including a one-hour-bomb scenario.
Read the whole article, but here's the conclusion:  
The message of Scotland's release and the Holder decision is that the will born in the wake of 9/11 is waning. The war on terror is being downgraded to not much more than tough talk. Al Qaeda, the Taliban and the Iranians, not yet converts to the West's caricature of its own legal traditions, will take note. In time, they will be back. The second war on terror is in the future.
Many of us have argued for years that 9/11 has effectively been forgotten by much of the U.S. If it hadn't been, ridiculous notions such as rights for terrorists and prosecuting CIA agents for attempting to defend the country would never have flourished. This should be obvious, but you can't fight terrorism with lawyers. The legalistic nonsense which is stifling efforts against terrorism simply gives another weapon to our enemies. American law should be interpreted to protect America and its citizens, not to create rights for hostile alien terrorists, and not to restrict or cripple the operations of an organization designed to operate largely outside the law. 


  1. When one is fighting a monster, one must be careful not to become a monster.

    I think I butchered that quote, but unfortunately, when we do not follow our own laws, in both letter and intent, we become our enemy. It offends me to give the same rights I enjoy to those who would spit on the spirit that gave birth to those rights, but if I do not give them those rights, I am ceding that spirit to them.

    In the end, it is important to remember that those terrorists are people, nothing more, nothing less. And we do hold it to be self evident that all are created equal- even terrorists.

  2. Without giving my usual extremely long-winded response to that sort of argument, I would just say that using certain unpleasant measures in the service of the country has long been part of the U.S. It is nothing new, and it doesn't create moral equivalence with people who deliberately target our civilians and respect no rules or laws at all.

    And I don't don't believe in universal or natural rights any more than I believe in God, because there is no evidence that they exist other than in the realm of theory. I see no need or utility in granting rights unique to America's political system to hostile aliens, or even presumed hostile aliens during wartime.

  3. UNRR,
    Nice post. I talked about this issue, and linked to your site, on my blog, In my piece, I link to a Dan Froomkin' Huffington Post piece that is so absurd, you gotta read it!

  4. Pat,

    Thanks. I read your post on the CIA earlier today, and I already had it saved to link for my HOT5 tomorrow.