Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the fight against terrorism, does America care too much about the legalities? Some serious observers have suggested so, and their position merits thoughtful evaluation. But in the end, law seems inescapably bound to counterterrorism efforts, and courts need to grapple with the complex facts of these cases. The indictment is serious and the prosecuting magistrate respected. Law has “deformed” public and governmental debate on counterterrorism. In consequence, our national framework for deciding national security policy is “flawed,” tilted toward legal questions in a way that obscures pivotal matters of practical policy. The most recent iteration of the claim came in an April speech from no less a figure than historian Philip Zelikow, former executive director of the 9/11 Commission and adviser to Secretary of State Condoleezza Rice, and is echoed in these pages by Stuart Taylor Jr. (“Unusual Suspects,” June 18, Page 60). For Zelikow (and Taylor), post-9/11 counterterrorism policy has wrongly focused on “what the law allows,” and not on what should be done to minimize the threat of terrorism. Zelikow’s condemnation, unlike much criticism of legalism run amok, extends both left and right. It was executive branch lawyers, Zelikow argues, who took the reins of interrogation and detention policies. And critics outside 1600 Pennsylvania Ave. reached for copies of the Constitution and human rights tomes, rather than thinking in clear, hard-headed terms. The ensuing duel of legalisms baffled the country and left the hard policy issues no clearer. INEXORABLY INTERTWINED But should decisions about national security policy — about spying, detention, or interrogation — be made with the law to one side? Have both the Bush administration and its critics got things wholly wrong? Zelikow’s critique resonates in part because it echoes such populist anti-lawyer jeremiads as Philip Howard’s The Death of Common Sense (1996). In this regard, it is overstated and unfair to the administration and its opponents. But in another, more profound way, Zelikow is onto an important problem that isn’t limited to national security law. Consider the proposition that law unfairly crowds out the hard practical questions. This spring, I co-taught a class at the NYU School of Law on national security law. My students, in defending or attacking administration positions, instinctively framed their legal arguments in terms of practical and ethical considerations. Some brought first-hand experience, either of being subject to racial discrimination or of being a solider in a war zone. Reading major Supreme Court decisions such as Hamdi v. Rumsfeld (2004) or Hamdan v. Rumsfeld (2006), they were unafraid to critique established law as impractical or wrong. I suspect my students were unremarkable in seeing law as inexorably linked to pragmatic and ethical concerns. The relation of law, ethics, and policy is vastly more complex than Zelikow says. CANNOT BE UNTANGLED In at least three ways, law and policy cannot be untangled. First, policy and ethical judgments are embedded in legal tests. Questions of how much process is “due” Yaser Hamdi; whether the hearsay rules applies in military commissions; or whether torture can fairly be characterized as only that pain “associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of a significant bodily function will result” — all are legal questions, but have irreducible factual and ethical facets. Not even Supreme Court intervention settles the questions — since no one thinks that the Court’s decisions, however final, are immune from criticism. Congressional reaction to the Hamdan decision in the form of the Military Commissions Act, and today’s renewed calls to restore habeas corpus regardless of the Supreme Court’s grant of certiorari in the Guant�namo cases, are important signs of how judicial decisions almost never end the debate. Second, as a historical matter, American debate on the most vital policy issues of the day has been framed using legal vocabulary. As David Currie amply demonstrates in his magisterial multivolume history The Constitution in Congress, federal legislators long argued eloquently with the constitutional grammar and naked political rhetoric. Larry Kramer’s landmark work on popular constitutionalism at the time of the founding of the nation also demonstrates that ordinary citizens can and do frame and decide critical policy issues in a language supplied by legal documents. The notion implicit in Zelikow’s argument, that law is for the courts and policy for the people, is thus historically off the mark. If anything, we should mourn the loss of a rich public culture of serious constitutionalism that can encompass both legal and policy questions. Finally, it is impossible to talk about what the government “should” do without asking what it “can” do — because law, especially the Constitution, articulates shared ethical commitments endorsed through the democratic process. As Jeffrey Smith, former general counsel of the CIA, told the Senate Judiciary Committee, “law matters … because we are a democracy and because we respect the rule of law.” To see why, imagine if 9/11 had been a year earlier, when Dick Cheney was a private citizen. Cheney’s views on torture or warrantless wiretapping might have been heard in the public sphere. But it is solely because of his public office, an office defined by law and the Constitution, that Cheney’s decision had any consequence. In a democracy under law at least, what the government should do is inseparable from what it can do. Government actors know they act only by virtue of a public entrustment of power embodied in law. Even Cheney knows this: On Sept. 11, according to Jo Becker and Bart Gellman of The Washington Post, one of his first acts was to assemble a legal team to tell him what legal powers the executive has in emergencies. As John Yoo says in his memoir, this reaction presumes that, “The law sets the rules of the playing field, but it does not set policy within that field.” It is certainly possible to criticize Cheney and his lawyers for failing to attend enough to the law and for starting with the results they wanted to reach and then reverse engineering to legal conclusions. But this is not to say there is too much law — it is to say there has not been enough fidelity to law. Moreover, ethical criticism of interrogation or spying policies is vitiated when detached from democratic moorings. It is one thing to say “I disagree with torture.” But it is quite another to say, “We the People, acting through our constitutional democratic mechanisms, disagree.” The latter unquestionably has greater meaning and ethical resonance. This is why human rights groups and other critics of the administration rightly appeal to law even as they reach for practical desiderata in condemning executive decisions. They know that what matters is not what policy wonks in Washington think — it’s what has been democratically decided as Constitution or law that counts. For all these three reasons, the executive and its critics ought not to be faulted for weaving law and policy and ethics together. Whether either side does it well, or honestly, is another matter altogether. But there is no question that law belongs on the table. HANDLING FACTS But even if one accepts that law has a place in the debate, does Zelikow still have a point about excessive legalism? After all, national security is unlike other policy matters because it often hinges on classified evidence. And, as University of Chicago law professor Cass Sunstein has recently pointed out, because emotions run high on security matters, rational debate is difficult. Perhaps one way of taking Zelikow’s point is to focus on the courts, and the haphazard way they handle facts in national security cases. For example, courts have generally deferred to executive statements about a person’s dangerousness — only to see Yaser Hamdi and then Jos� Padilla released from military custody when a legal loss loomed for the government. Courts have also deferred to executive claims that information must remain classified in “state secrets” cases, even though the earliest state secret case ( United States v. Reynolds of 1953) involved a government lie about the presence of classified evidence in the case. Relying on legal doctrines such as the “state secrets” privilege, courts too often evade the need to grapple with difficult factual questions. In this regard, Zelikow is correct: The law is invoked as a way of not dealing with the facts. But the presence of classified evidence ought not to be a barrier: Courts have procedural devices to handle classified evidence, and politicians should eschew fear-mongering. As Tim Weiner’s recent history of the CIA shows, the intelligence agencies are hardly repositories of faultless expertise that warrant unthinking deference. Moreover, judicial inattention to careful factual analysis is a problem not only in the national security area. Rather, Zelikow’s critique of insufficient attention to facts can be expanded and applied to the federal courts more broadly. It is not solely in national security cases where courts are willing to elevate legal formalism over scrupulous attention to the facts in the world. The result is the kind of policy-making Zelikow condemns: animated by legal theory, and uninformed by honest scrutiny of the world. Consider two high-profile cases from the last Supreme Court term by way of example. In Parents Involved in Community Schools v. Seattle School District No. 1, the majority, over the sharp protest of Justice John Paul Stevens, invoked the words and intentions of lawyers in the original civil rights movement as support for a constitutional rule of color-blindness. Yet, as those civil rights lawyers made clear the next day, the plurality’s reading of their words and goals was seriously mistaken. Earlier, in Gonzales v. Carhart, a majority of the Court relied on highly contestable and wholly unproven facts about the “ultimate expression” of a woman’s love for a child and a woman’s “regret,” “grief,” and “sorrow” after an abortion — this time over the vigorous protest drafted by the only woman on the Court, Justice Ruth Bader Ginsburg. Zelikow thus may be wrong to worry when Americans frame and debate hard questions of national policy in legal and constitutional terms: There is a rich history and strong reasons that justify this practice. But he is right to point out that legal formalism can take the place of careful consideration of the facts, especially in the federal courts. We must thus be attentive to how the courts deal with complex factual questions, not only in national security cases, but more broadly. And we must ask not only how our judicial umpires demonstrate fidelity to the law, but also whether they keep faith with the complex facts that bear on the resolution of many critical constitutional questions of today.
Aziz Huq is director of the Liberty and National Security Project at the Brennan Center for Justice at the NYU School of Law.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.