No Righteous Gentile Awards, Please

I’ve refrained so far from commenting on the Liz Cheney – AQ7 ad, but I want to make one lengthy statement on it and, I hope, leave it at that.

(Background to this kerfuffle.  At this point, there is the initial AQ7 ad, then a group response letter drafted by Ben Wittes of the Brookings Institution and my co-task force member at the Hoover Task Force on National Security and Law, which I also signed.  That response letter, which sharply took the ad and its promoters to task, prompted a fair amount of congratulatory commentary on the liberal and progressive side, including a front page New York Times story commenting on it.  It also prompted, however, equally sharp responses from conservatives, particularly at the NRO The Corner blog, and particularly Andy McCarthy, Marc Thiessen, and others; later, there was some pushback to some of the stronger views expressed by Andy and others at the Corner itself, by Jonah Goldberg and others.  The Wall Street Journal – with many friends on both sides of the conservative debate, including Andy McCarthy on one side and David Rivkin and Lee Casey on the Wittes letter – offered a sensible disentangling of the issues.)

My feeling is much that of the editor of one politics journal who remarked to me, “Our goal is to stay out of the crossfire on this.”  I was greatly pleased to sign the letter drafted by Ben Wittes, and honored to be asked – but the names that truly matter on that letter are those of prominent conservatives, particularly former senior Bush administration officials and lawyers.  Not academics like me who are not big fish within the pond to which that letter is addressed – national security conservatives and centrists.

I’m going to break radio silence on this, however, for what I trust will be this one, lengthy statement (mostly below the fold; I will add some links later).  The reason is that I have received a surprising number of emails and messages – some congratulatory and some critical from conservatives, but also a surprising number of congratulations from friends on the progressive left, telling me how proud they are of me.  To be clear, I appreciate the general sentiment and like praise as much as the next professor, but alas, I have to say that these well-intentioned missives largely miss the point.  The writers believe they are expressing solidarity with me and with the sentiments behind the letter.  Some in fact do echo the views of the letter, taken in toto. But others – most of the ones received – do not.  Why not?

I

Well, the emails from progressives principally express two things, neither of which is truly an expression of solidarity with the Wittes letter.  To start with, many merely express satisfaction that I, and the other letter writers, have come round to understand that this whole ‘war on terror’ stuff is a bad, if not wicked, policy, and a fantasy to boot.  That misses the point of this letter pretty much entirely.  It is as though the note-writers decided to appoint themselves honorary signers of the Wittes letter without actually reading it.

No one signing the letter, so far as I know, has recanted their views on any fundamental national security issue that underlies it.  Those views differ hugely as between individual signers. But one thing that probably does stand as common, substantive ground among all the signers (it is what makes the signers, in this setting, “centrists” and “conservatives”) is a belief that national security and civil liberties are each fundamentally important – but they inevitably require tradeoffs. This marks a difference with the civil liberties and human rights advocates on these issues. That’s so, whether the civil liberties advocates reject the idea of tradeoffs between rights and security straight-out – or else formally accept the idea of tradeoffs, but then structure the tradeoffs so that they aren’t in the end tradeoffs at all.

Either way, that’s not finally the position of this letter.  As Ben Wittes has written in his book, Law and the Long War, it’s certainly morally consistent to always come down on the side of civil liberties and human rights.  It is possible, in some better possible world, that the two involve no contradictions.  But as far as the signers of this letter are concerned, it’s not our world.  More to the point, if anything like that is your assumption, you’re not on the same page as the signers of this letter, and your expressions of congratulation, however sincere, are beside the point.  You’re not actually congratulating me, I’m afraid – you’re congratulating yourself, for holding the views you hold.

This is not to say that in order to join in congratulating someone, or empathizing with them, or agreeing with them, or many other things, you actually have to share their assumptions, share them in actual fact.  You don’t.  It’s the mark of a classical liberalism to be able to take on another’s assumptions and reason from them and about them without necessarily actually sharing them – it is part of what defines the liberal divide between the public and the private, and makes the politics of a liberal democracy possible.  But in that case, one does have to argue as though one had accepted (in this case) the starting assumptions of the letter and its signers.  But the expressions of congratulation I’ve received mostly do not do so; they assume, on the contrary, that I’ve moved from my assumptions to theirs. I can assure you, I haven’t.

II

That issue is relatively easy, though. The second move made by my progressive interlocutors is more serious, and much, much more dismaying.  I am told by numerous people how pleased they are that a group of conservatives were able to see … the obvious difference between the Wicked, and Criminal, and Immoral, and Despicable lawyers for the Bush administration, who opened Guantanamo and detained people, authorized torture and harsh interrogation, etc., etc., and the lawyers for the Obama administration.  This, of course, so deeply misses the point of the letter that one hardly knows where to begin.

Look:  I signed the Wittes letter precisely because I was distressed, angered, and dismayed at the fanatical and unjust treatment of the Bush lawyers, and because I believed that the AQ7 ad was more of the same leveled against Obama lawyers.  A chasm the depth of the Grand Canyon sits, you understand, between rejecting this ad because I was unhappy with the treatment of the Bush lawyers and did not want to see the same directed against Obama administration lawyers – and thinking it was obviously unfair to treat Obama lawyers this way, but not Bush administration lawyers.  I regard the treatment of such Bush administration lawyers as John Bellinger and Matthew Waxman – both signers of this Wittes letter – by segments of the left to be disgusting, to use the terminology of the letter.

But I would not stop there – I would certainly add Jim Haynes, as well as career CIA and other agency lawyers whose careers suffered inside government. All of these people I regard as not just having acted in good faith, but having mostly got it right under very difficult circumstances.  But I’m afraid I don’t stop there at all.  I defend John Yoo and Jay Bybee. Not because I think Yoo’s advice correct – I don’t – but because it was obviously in good faith under the most difficult circumstances.  Words will not express, at least on this blog, my views of those out hounding Yoo.

III

In any case, I regard the embrace from the left as mostly, merely strategic on its part.  It will last so long as the Obama administration lasts – and that, in my view, in order to protect Obama lawyers while they’re there.  The day a new Republican administration takes charge, I would predict that a whole series of things will soon start being characterized as criminal, as violations of international law, and as worthy of attention by prosecutors in Spain and international forums.

As a consequence, if there was anything that gave me pause about signing this letter, it is the unsolved problem of how to deal with the left’s one-way ratchet.  The Bush administration’s lawyers are demonized and hounded by the left; yet I and others like me are expected to come to the aid of Obama administration lawyers.  I do, but fully anticipate that future Republican administration lawyers will face similar pressures to those of the Bush administration.  Down the road, the difficult legal decision in the real world that those lawyers take will be characterized as “obviously” beyond any reasonable position, per se crimes against God and Eternity.

I take it therefore that part of the strategic purpose of the AQ7 ad, at least on the part of those familiar with the blame game in Washington, was to raise the stakes for Obama administration lawyers.  Part of me is very sympathetic to ending the one-way ratchet by fighting fire with fire.  If the left is going to start executing hostages, well, the right had better do the same.

I don’t go there – it is the core proposition rejected by the Wittes letter.  But since I do think that its progressive interlocutors shift freely between hypocrisy and fanaticism, I am as troubled by Andy McCarthy as to the consequences down the road.  I don’t regard this as idle speculation. As I wrote at vast length last week in the Weekly Standard, this seems to me the turn being taken on the CIA’s use of Predator drones.  A campaign quite possibly enabling criminal prosecution, somewhere at some future moment, of CIA officials, lawyers, etc., for targeted killing using drones – but almost certainly only once there is a group of Republicans in charge – is getting cued up as we speak by the international soft-law community.

IV

So let me detour for a moment from the past issue (not settled, just past) of detention, interrogation, and torture, and turn to what I think will clearly be the next big legal-political conflagration in the war on terror.  I am impressed to read in this mornings papers that CIA director Panetta is admirably standing up to defend his agency’s strategic engagement with Al Qaeda through Predator strikes.  Let me express, yet again, my astonishment that no government counsel seems to have offered any public legal rationale for it – offered the opinio juris of the United States, in the lingo.  Not the CIA’s lawyers or any other counsel in government.

The closest Panetta got to “explaining” its legality was to say that the agency had been tasked by the President of the United States; an assertion of legality likely to impress people, to the extent it does, only so long as Barack Obama is president.  In a subsequent interview, showcased on the front page of the Washington Post, he said that the targeted killing program was legal, but added no basis on which to judge that.  Which of course I do not expect from the director of the CIA – but do expect from his counsel.

Memo to CIA, DNI, and the rest of the national security community:  we’re convinced of the strategic utility of drone strikes – that’s great news and you should be proud.  However, the question that is being pressed upon you is whether, successful or not, it is unlawful for the CIA to be doing it, as the very eminent Georgetown and former West Point law of war professor Gary Solis argued in the Washington Post over the weekend.  Professor Solis is a voice of such eminence that his view, even though I think it deeply wrong, cannot simply be ignored as of no account.  Professor Solis said that he did not think CIA officials should be prosecuted legally – but it is very hard to see why not, if his characterization of their activities as being unlawful and America’s very own  “unlawful combatants” (!) goes unchallenged.  But, somehow, mysteriously, the obvious conclusion to those premises – investigations, prosecutions, career damaging or ending insinuations and, note, an end to those strategic successes – will get reached only once a Republican administration is settled in office.  Funny how these things work.

If you think this is an irrelevant aside about drones in the middle of a discussion something completely different, think again – because capture is less desirable than it was, because no one wants to mess with interrogation, drone warfare is both the fundamental tool left in the toolbox and therefore the likely next clash of legal-cultural tectonic plates.

Moreover, this is not cynicism on my part; I rather wish that’s all it were.  On the contrary, it’s rational, strategic behavior.  If you are, for example, a European human rights activist or Spanish judge or what have you, you think to yourself: Hmm, if I go after Democrats in the Obama administration, they’ll be forced to fall back upon being “Americans“ and join forces to protect themselves with Republicans.  “American” will trump “transnational progressivism” if Democrats are threatened here.

On the other hand, if I (Euro-prosecutor) target only Republicans, then I can be assured that Democrats (or enough of them in the transnational, progressive wing) will ally with me against the Republicans.  Maybe it’s not consistent, but being able to target half the Americans is better than forcing them back to being all Americans, and so not being able to target any of them. Half an American loaf is better than no loaf – quite apart from transnational elite cultural affinities and global New Class solidarity.  It’s not complicated, it’s not cynical – it’s just incentives.

V

So, to my friends on the progressive left, I think maybe I’m not a deserving recipient of the “Righteous Gentile” award some of you seem to want to give me and my fellow letter-signers.  You seem to have profoundly, if strategically, misread the argument.  But now, some comments to the right that seems to have taken this letter as an act of perfidy.

Positions around the letter seem to have settled into three stances.  First, a number of writers – Mark Thiessen in some of his comments, for example – have walked the issue back to saying that the issue is merely disclosure.  Congress has a right to know, and good reasons to want to know, who the lawyers are in DOJ, and to know with credible assurance that conflict of interest rules are being respected.  If that’s the position, I share it and imagine that is true of many of the signers of the letter.  But I don’t think that it can be squared with the many arguments and insinuations and outright claims that for lawyers to have volunteered their services constitutes aid and comfort to the enemy in a quite literal sense.  If it’s being walked back, fine, good idea – but be clear that’s what you’re doing.

If the first position is a walkback, the second is doubling down.  I have agreed with Andy McCarthy on many issues of national security matters.  But I think he’s headed down the wrong road here.  I’m not going to restate all the comments by Jonah Goldberg and others that have made this point; for that matter, the Wall Street Journal’s editorial did a good service in carefully walking through this.  But the AQ7 lawyers in the DOJ do not have very much to do (i.e., anything at all to do) with Andy’s largest-bore claim that the gap between “Islam” and “Islamism” is much more a convenient and comforting Western political fiction than reality.  Mixing these two together (giant questions about Islam and minor questions about the AQ7) is a serious mistake, intellectually as well as strategically, as well as sounding just off, which I take is what Jonah Goldberg was gently saying.  Trying to find a way to force them together is a still worse idea; it gets less convincing with each step down that road.

Even mixing the AQ7 as a matter of “disclosure to an inquiring Congress” with claims about “aiding the enemy” is still a grand mis-match.  Not to mention simply wrong as to the particular people involved. There is a hugely important debate to be had about the fundamental conception of the response to transnational jihadist terrorism – one in which Andy McCarthy has performed a great service by articulating a plain view of it as war – but it is not a debate to be had surrounding the person of … Neal Katyal.  But a great many conservative commentators have said this better than I – and in any case, I’m not sure I count as a conservative, certainly not a “movement” conservative, someone persuasive on this topic to this community.

But it goes to the substance of an argument I have made for years, and which is also made by Ben Wittes, Jack Goldsmith, and many others.  The full-on language of “war” that Andy insists on using – and which he means so literally that lawyers volunteering to represent Guantanamo detainees constitutes a form of soft-treason – is a mistake of historic proportions for the following reason.  It is that stubbornly sticking by the language, legal powers and incidents, policies, politics, and ways of thinking about war in relation to terrorism deprives us of the ability to fashion new regimes of law that suit the threat.

VI

That sound like some namby-pamby ACLU-type parley?  That’s far from how I mean it, as a quick review of positions I’ve taken in the war on terror would bear out.  The threats, as we have recently seen, increasingly come from within the United States and from US citizens.  This will turn out to be so into the future largely for reasons that run on long trajectories of political culture – the corrosive New Class elite ideology of multiculturalism, principally, but we can debate that separately.  War as a legal frame is important, as I have said many times, but it is far from exclusive in the war (in the non-legal sense) on terror abroad. You know and I know and Andy McCarthy knows that America will not adopt war as the legal frame within the United States and dealing with US citizens except in very rare circumstances.  It will never do so to the extent of demonizing lawyers for representing clients within the rules of domestic US law – even if, as in the case of the Guantanamo recidivists, that the overall national security result of that participation has been to facilitate more terrorism.  As one friend from Asia remarked to me, the Americans (and British) like to preserve the purity of their civil liberties institutions internally by re-exporting terrorists externally; the people they kill are mostly non-Americans, so who cares?

The only thing such overreach does is undermine the legitimacy of war against terrorists abroad and such measures tailored to the threat inside the United States.  To insist on the legal language and frame of war in every circumstance has the virtue of focusing on the sharp limits of the criminal justice system in dealing with terrorists and terrorism, here or abroad. But if it is insisted upon, to the the point of denying the legitimacy of allowing pro bono lawyers to represent detainees, or question their fitness later to serve in DOJ solely on that account, the only result will be to deprive us of any useful appeal to war as a strategic frame.

The task, rather, is to develop sui generis mechanisms of national security law – national security courts, special legal regimes, administrative detention, and other devices that are not based around the legal frame of war – and which can apply to US citizens, and apply in various ways within US territory.  Andy’s war model is based on something that he knows better than anyone else is no longer accurate – that the terrorists are “out there” rather than also “in here.”  Insisting on doubling down on the war model as the legal basis deprives us of the ability to elaborate new structures of law – ones that will respond to terrorist threats as being different from property crime, for example, by ordinary criminals – but which still are part of the structure of internal US law.  That will involve, yes, a lot of lawyers representing people accused of various things, and even people not immediately accused of anything, but facing detention for some period on intelligence grounds.  No such system can operate in the US unless it has the legitimacy of law, not war alone.

The third position on the AQ7 is one that is just now developing in the press.  The allegations and revelations of photographs of possible CIA officials being circulated at Guantanamo are extraordinarily serious.  I am not an expert in this area of criminal law, so I make no judgment as to whether criminal laws were, or might have been, broken – quite apart from the facts not yet being fully in.  Even without opining on the law, if the allegations raised in the press turned out to be true that a civil liberties group had been hiring private investigators to take photographs of presumed CIA officers and then circulating them via defense lawyers at Guantanamo – it would sicken and disgust me.  So yes, I think those issues are every bit as serious as has been suggested.  I hope, and have complete confidence, that Patrick Fitzgerald will investigate them with as much seriousness as he did the frankly trivial Plame matter.

VII

That said, I cannot see that this matter has anything at all to do with the AQ7.  Zero. Moreover, trying to link the two trivializes the enormity of what has been alleged concerning the behavior of lawyers at Guantanamo and civil liberties groups alleged to have been involved.

Let me close this lengthy post by stating my broad agreement with Andy on a crucial issue.  It is, indeed, a large part of what drives conservatives to such lengths on this issue.  This is the not-small matter of the elite of the elite law firms, law schools, lawyers, the bar, undertaking to represent Guantanamo detainees – while putting out a metaphorical press release to the world, as it were, that these lawyers are somehow heroically putting themselves out there for some unpopular client.  And that they therefore deserve many moral points – which they have freely awarded themselves – for having followed in the footsteps of heroic Atticus Finch types across two centuries of lawyerly experience in America.

It is a narrative of lawyerly heroism at once so offensive and so hilariously self-deluded that “radical chic” scarcely does it justice.  Unpopular cause?  Unpopular clients?  Sure – among ordinary Americans.  Not among the lawyerly elites, however, who constitute what Andy and others accurately refer to as the Guantanamo bar.  I’m a law professor, for heaven’s sake, half of my friends and colleagues and acquaintances are all proudly part of this.  Believe me, there’s no unpopularity involved, no voices of moral censure, no sense of disapproval from anyone whose approval might matter to you.

On the contrary, in the refined and precious world of elite law schools, elite law firms, elite law students and lawyers, there is the approval of those whose approval matters – all your authority figures, pretty much.  But much more importantly, there is also the disapproval of those whom you look down upon and disdain. Their disapproval matters, because it puts the spin of small but delicious trangression on the otherwise fairly routine acts of lawyers whose small and unadventuresome lives suddenly take on the thrill of a political thriller.  Ooh.  Notice, too, that it has not escaped the calculations of lesser law schools that, in the weirdly combined world of radical chic – a kind of Veblenesque political economy of conspicuous consumption – these kinds of causes might even be a path to upward rankings mobility.

Combine the frisson of a little act of moralizing geo-politics by a lawyer who studied political science and didn’t quite anticipate ending up spending his or her life reviewing boring commercial documents, and the frisson of moral self-righteousness, but without taking any actual risks, career, legal, moral, or political. We are left with the brilliantly winning combination that the Center for Constitutional Rights has managed to leverage into its own private bar association.  Also add to that the weird class aspect that undergirds radical chic – it’s a marker in its own right of elite.  Law firms dangled the prospect of this pro bono work before the most sought after top law firm grads, who took it as a sign of moral validation in addition to the (unsustainable) $160k.  Law schools did the same.  It is the essential, life-blood currency of the political economy of NGOs – moral self-congratulation in equal measure with moral self-indulgence.  Everyone, in my world at least, heaped praise and air kisses upon each other for their moral courage, but no one (save perhaps those alleged to have been circulating photos of CIA agents to people who might want to kill them or their families) actually took any risks.  All moral hat, no moral cattle.

VIII

The fury of the right, then, against the moral self-indulgence of elite lawyers is the biggest driver, in my mind, of the continuing argument on the right over the AQ7 ad.  Note that I say the “right” rather than a “portion” of it – because in my estimation, even conservatives who decry the AQ7 ad tend to share something of the anger over the moral self-aggrandizement of the Guantanamo bar.  Not always, of course.

I, for example, am in the peculiar position of sharing the outrage in a diffuse sense – but also believing that it is seriously, profoundly, even weirdly, misdirected in this case.  None of this has anything at all to do with Neal Katyal.  For, heavensake, he is one of the toughest people on the Democratic lawyer side on national security, someone who has no problem shredding the civil liberties community’s positions. He accepts that this is a world of tradeoffs.  Also, memo to movement: Losing Neal Katyal’s general good will and good sense is one of the stupidest errors conservative national security advocates can make. And Jennifer Daskal is not Lynne Stewart; she is a young, engaging, and engaged advocate who has taken positions on behalf of Human Rights Watch that she surely sincerely believes. She now works as an advocate for an administration whose positions she probably does not quite so sincerely believe – but for a thousand years or so, like it or not, that’s what lawyers do.

Bear in mind there are upsides as well as downsides to that. For the reasons Robert Bolt’s (iconically Enlightenment version of)  Thomas More noted, the lawyerly ability to switch teams is as much an expression of social solidarity and the rejection of fanaticism as hypocrisy.  So please, no lectures from the right about the guild merely protecting its own; these forms of social solidarity or political hypocrisy are a lot better than the moral purity of the Long Parliament and the New Model Army.  Meanwhile, the deserved emotional outrage deriving from broad and diffuse sensibility of radical chic has caused the actual, wrongly targeted specific issue to morph into a positive feedback cycle that has led to fantastical positions quite unrelated to whatever this is concretely about.  Yet, though I have said this at length about some of Andy McCarthy’s positions, let me add that I do not begrudge him the outrage – even while believing that the participation of outside lawyers in the Guantanamo process is a good thing.  And even while believing that the basis of public service in a liberal democracy is the ability to separate public from private positions.

This is a system – like it or not – that has embraced a mixed-up model of war and law. Parts of it are war, in the overt sense of armies marching to war.  Armies against terror and terrorists are most useful for bringing down regimes that harbor them and eliminating terrorist safe havens; attacking the terrorists themselves is strategically not the same thing.  Intelligence uses of force” such as targeted killing using drones or commando teams – whether CIA or military, whether covertly or merely with “plausible deniability” – but also all the other intelligence functions of gathering information and managing it, will also continue to play a large, and increasingly large part.  But of course there is a role for criminal law in this as well, within the United States.  One can take and accept what Andy and others have correctly said about the inability and moral wrongfulness of using the criminal justice system as the frame for counterterrorism, while still recognizing that it has a role, and that role is strongest when it comes to US citizens acting within the United States.  And that, for a series of disastrously bad reasons, is the likely trajectory of terrorist confrontations.

But in that process lawyers will inevitably be involved.  That being so, I applaud the broad participation of the bar in it.  I think that is the right result as far as representation goes.  That is separate, however, from thinking that lawyers should be congratulating themselves for taking on clients that are unpopular, when they are unpopular only in the minds of people whose approval or disapproval is irrelevant to them.  Representing Guantanamo clients is popular among the people who matter in these worlds.

Moreover, the perception of disapproval from the remote, unwashed masses is a little bit like a drug. It’s not just that the cause is popular among people you care about.  It is that disapproval of people you disdain has its own emotional satisfactions.  And risk-free disapproval, too, since the “people” can’t really act on it.  Risk-free sense of transgression – remember that term from some of your more abstract law school courses? Well, it’s a lovely life-style drug for feeling better about your (still) well-compensated, but risk-free life.  Radical chic.

The coordinators of the Guantanamo bar have gone to a great deal of effort to convey to its lawyerly foot-soldiers that they are each an Atticus Finch sitting outside of Tom’s jailhouse, shotgun in lap against the lynch mob of popular opinion.  But it is not a narrative that would have gone anywhere without an exceptionally willing, auto-enabling and self-deceiving audience, looking for the lawyerly, professional equivalent of a little prescription drug fix, Adderall and Cialis, combined.

So one can find, if one likes, the lawyers of the pro bono Guantanamo bar to be alternately deluded, hypocritical, self-indulgent, fatuous, self-interested, self-deceiving, and morally preening – while still endorsing the objective value of legal representation.

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