Second, our nation has developed safeguards to protect against the malicious use of its court processes. The mechanisms for dismissal and summary judgment, as well as well-developed immunity doctrines, protect U.S. military commanders from alleged decapitation lawsuits. Certainly, a disruptive enemy could file thousands of lawsuits across America, but it's not clear they would do any harm beyond wasting their filing fees before a judge tossed them out of court. To prevent criminal and civil discovery from aiding enemy intelligence operations, Congress has passed the Classified Information Procedures Act, and the courts have developed the "state secrets" evidentiary privilege, which together have safeguarded classified information in past espionage, terrorism, and government-contracts cases. In short, our legal system today is far more sophisticated than the simplistic lawfare tactics of our enemies, and we should have more faith in its ability to protect us.
Don't take my word for it. Recent prosecutions of Osama Bin Laden (in absentia), "American Taliban" John Walker Lindh, wannabe shoe bomber Richard Reid, Tim McVeigh, and Terry Nichols demonstrate the ability of our judicial processes to meet the challenges of terrorism. The trial of Zacarias Moussaoui has run aground, but that owes as much to the administration's invocation of lawfare to trump Moussaoui's Fifth and Sixth Amendment rights as anything else. And even then, he's still in prison, where he poses little threat to U.S. national security. None of these cases resulted in a disclosure of critical national security information; none conferred a strategic advantage upon our foes. If anything, our commitment to legal process for even our worst enemies has given us a moral and political advantage. Now that we are committed to the spread of freedom and democratic institutions, we must lead by example. To do otherwise would be the worst form of American exceptionalism.
Nonetheless, the White House fears lawfare. Understandably, the administration is scared it will lose in courts, because its cases sometimes rest on shaky evidence not likely to be admitted into a U.S. military or civilian court. However, there's a more subtle fear at work: If the administration decides to try suspected terrorists in ordinary civilian or military courts, it must also concede that the government no longer requires extraordinary powers to fight terrorism. This would undermine administration policies in many other areas—from the zealous enforcement of immigration laws to the use of emergency supplemental appropriations for the wars in Iraq and Afghanistan. Charging Salim Ahmed Hamdan in federal court, or revising the military commission rules to look more like conventional courts-martial, would be tantamount to an admission that the post-9/11 state of emergency had passed and that America could go back to being itself once again.
James Madison wrote once that "war is in fact the true nurse of executive aggrandizement." Historically, our presidents have wielded great powers during wartime, only to see the pendulum swing back at the conflict's end, as in 1866 when the Supreme Court posthumously rebuked Abraham Lincoln for his Civil War suspension of habeas corpus and use of military commissions. Nearly 43 months have passed since 9/11, longer than between Pearl Harbor and the German surrender in World War II. The time has come for normal judicial and political institutions to reassert themselves.
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