Is Messy Constitutionalism the Enemy of Effective Strategy?

by Chris Borgen

In a similar vein as Peter and Peggy before me, I want to mine two of Ben’s premises: that we are in a new kind of war and that this needs a new kind of law. I do agree in part with Ben on each of these– I think we are facing conflict of a different sort than we have before and I also think that we need legal tools that address the issues spawned by such a conflict.  But I also think that the conflict we are facing is closer to a complex intelligence and law enforcement operation than a war and that we can address these issues by adjusting and updating existing laws rather than turning this into a founding moment for a new corpus of law, a new balancing of fundamental rights, and a new set of institutions.  Our existing Constitutional tradition may be messy, but it is up to the task.

Ben’s book is broad in scope and rich in detail and I read it as making an argument for constructing a new body of law and a group of institutions that responds to the conflict of our time. He begins by examining the “law of September 10,” that is, the overlapping techniques and regulations stemming from law enforcement, intelligence operations, and warfighting, that have defined our complex responses to terrorism in the past, ranging from Federal trials to cruise-missile attacks.  This actually mirrors how many law schools teach the course “National Security Law”: we pull together a smorgasbord of constitutional law, criminal law, the law of armed conflict, international criminal law, foreign relations law, and the law of intelligence operations, and show how these various pieces of legal regulation overlap like a Venn diagram and interact with the various policy areas that we consider to be issues of “national security.”  In fact, betraying my skepticism about whether there is a single coherent body of “National Security Law,” I have entitled the class I teach “National Security and the Law.” 

But I think Ben’s project is to turn the law school class title into a unique corpus of law.  In other words Law and the Long War becomes the Law of the Long War.  He writes on page 54:

Rather than a project in adapting the laws of war for a novel conflict or in imagining how far it could leverage them to justify the substantive powers that it required, the administration needed a different, rather deeper, enterprise. It needed a law-building project for something that had gone beyond war altogether–an effort to assemble the disparate puzzle pieces that the law of September 10 had scattered about the table into some kind of coherent law of terrorism, a body that could sustain the powers of presidential preemption before the courts and the public.

This interplay of strategic imperatives and the structure of law is an argument that has been made by other writers, such as Philip Bobbitt, and it is one that I find generally persuasive. But accepting that threats have evolved and that our legal system needs to respond to these new threats still begs the questions of what are the threats and what should be the responses?  In this case, are we facing such threats that we need to set aside our existing framework for a new body of law? 

Ben answers that the threat of Islamic fundamentalism is sufficiently important that we need to cast aside the existing structure of overlapping bodies of law (concerning law enforcement, intelligence gathering, and warfighting) and replace it with a new “law of terrorism” or national security law and its attendant institutions. Various proposals for such institutions from different writers and analysts have included the (now existing) Department of Homeland Security, a (still posited) National Security Court, and an enhanced domestic-surveillance apparatus. The result is that people (primarily, but not only, non-U.S. citizens) suspected by the Executive of being terrorists would have different rules, different rights, and different courts. This would not just be during wartime. This would be all-the-time.

While this may avoid the ongoing difficult balancing between rights and security that takes place in the interplay among the three branches, I am not so sure that this is necessary or desirable. While I do think there is a significant risk of further large-scale terrorist attacks in the U.S., I think this Administration has overstated the threat of al Qaeda and that this overstated threat fuels the talk of a “long war” (regardless as to whether we think of it literally as a war) and of a need to rework our legal system to a significant degree. To be sure, on September 12, 2001, no one was clear as to how much of an ongoing threat al Qaeda would be.  But by July 29th, 2008, we have a better sense of its capabilities. As Michael Sheehan, who was until recently NY City’s Deputy Commissioner for Counterterrorism, put it in his recent book Crush the Cell (p.6):

After underestimating the threat prior to 9/11, the overreaction that followed was predictable, but not inevitable. By failing to understand the context of the organization, its very strengths and weaknesses, we magnified  our mental image of terrorists as bogeymen.

In the coming days we will discuss in greater depth some of the policy proposals in Law and the Long War. For now, suffice it for me to say that I think some of the changes that either have already occured or are proposed would be significant changes in American policy, especially once they become normalized via some new “law of terrorism” and I’m just not convinced that such fundamental changes are necessary for our strategic goals.

Foiling terror networks is primarily about the gathering of intelligence and the coordination of law enforcement.  Loosening restrictions on torture is of no use there as torture does not lead to intel in which one can have high confidence. Nor are aggrandizements of Presidential power necessary (whether or not they have legal cover provided by Congressional statute). Similarly, established institutions such as Federal courts and UCMJ-style courts-martial have experience in trying very dangerous people where there is sensitive intelligence data.

Of course, with this new threat of empowered terrorist networks, there are changes that need to be made, especially in the areas of surveillance. But what I think may be necessary is more in the lines of adjustments within existing frameworks–like the enactment of the Racketeer Influenced and Corrupt Organization (RICO) statute to combat the rise of violent transnational nonstate actors in previous generations (La Cosa Nostra, narcotraffickers, etc.)–rather than a near-Constitutional moment where “we are the Founders” (p.258) who redefine some basic bargains of the American polity.

Ben writes that it would be ”an illusion” to think that “our constitutional tradition, if sifted through enough, can answer our current questions.” (p.257)   I don’t think that the answers to our problems are literally in the text of the Constitution. But I am going to need more to convince me that our Constitutional tradition is not up to the task.  While strategy and law are linked, we do not want to sacrifice who we are based on who we fight.

http://opiniojuris.org/2008/07/29/is-messy-constitutionalism-the-enemy-of-effective-strategy/

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