In the wake of Vietnam and Watergate, Congress passed laws that criminalized military and civilian officers who broke the rules on electronic surveillance and detainee treatment: "the criminalization of warfare." Its ban on political assassination deterred the Clinton administration from gunning down Osama bin Laden. The CIA has become so wary of possible criminal charges that it urges agents to buy insurance. Developments in international law, especially the doctrine of universal decision, also threaten U.S. government officials with possible prosecution abroad. All of this creates a risk-averseness that leaves us more vulnerable to terrorists.
The CIA today employs more than 100 lawyers, the Pentagon 10,000. "Every weapon used by the U.S. military, and most of the targets they are used against, are vetted and cleared by lawyers in advance," Goldsmith notes. In this respect, the national security community resembles the larger society. As Philip Howard of Common Good points out, we are stripping jungle gyms from playgrounds and paying for unneeded medical tests for fear of lawsuits.
The audiotapes released last week of Khalid Shaikh Mohammeds interrogation remind us that we are faced with evil enemies and that getting information from them can save lives. Goldsmith, who withdrew his predecessors interrogation opinions, nevertheless understands this and makes a strong case that our national security apparatus is overlawyered.
Most Americans seem to agree; an Investors Business Daily poll shows that more than 60 percent of Americans -- and majorities of Democrats as well as Republicans -- favor wiretapping terrorist suspects without warrants, increased surveillance, retaining the Patriot Act and holding enemy combatants at Guantanamo. Unfortunately, the 30 percent or so who disagree are disproportionately represented in the legal profession and in the media.
The 1970s laws that have helped produce the overlawyering of this war were prompted by the misdeeds of one or two presidents. But they will hamper the efforts of our current president as well as his successors in responding to a threat that is likely to continue for many years to come.