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But Is It War?

The casualty figures from places like London, Madrid, Baghdad, New York City and Washington, D.C., speak of a long and bloody conflict in which civilians are at risk along with soldiers. But is the fight against terrorism truly a war?

That question may sound like the invitation to an exercise in semantics, but it is freighted with constitutional implications. Whether the fight against terrorism meets the legal definition of war is a key to drawing the boundaries of executive power that the president may invoke to pursue that campaign.

The proper boundaries of executive power in pursuing the campaign against terrorism at home and abroad was the subject matter for leading experts in the field, who engaged in a weeklong series of exchanges during late July for the ABA Journal.

But this wasn’t your typical exchange between commentators at opposite poles of the political spectrum. The participants all have strong conservative credentials. Nevertheless, they hold dramatically different views on the issue of executive powers in the fight against terrorism.

David B. Rivkin Jr. argues for strong executive powers. Rivkin is a partner in the Washington, D.C., office of Baker & Hostetler. He also is a visiting fellow at the Nixon Center and a contributing editor of the National Review. He served in a number of legal and policy positions during the Reagan and first Bush administrations. His collaborator is Lee A. Casey, also a partner at Baker & Hostetler. Casey also held numerous government posts during the 1980s and early 1990s.

Taking the view that President Bush has overstepped the proper bounds of executive power is Bruce Fein, a principal at The Lichfield Group, which advises governments and businesses on policy and public advocacy strategies. He held several posts in the Justice Department, and served as general counsel to the Federal Communications Commission. He writes a weekly column for the Washington Times.

The full text of the exchanges appears below. (An edited version of the initial salvos appears in the September 2007 issue of the ABA Journal.)

FROM: David Rivkin and Lee Casey

TO: Bruce Fein

DATE: July 18, 2007

Dear Bruce:

In the post-Sept. 11 world, the U.S. finds itself in the middle of a difficult and protracted military, ideological, economic and diplomatic conflict with a resolute foe—Islamo-fascist and Jihadist groups, e.g., al-Qaida, Taliban and a number of rogue states that support them, e.g., Iran.

This is not the conflict we sought, but fight it and emerge victorious we must. We happen to think that the threat they pose to the United States and our allies is comparable in many respects to the threat posed by the Soviet Union during the Cold War period. Both the Soviet Union and Jihadist groups share messianic, albeit very different, ideologies and have comprehensive political and strategic agendas. The former sought to build a global communist state; the latter is seeking to establish a global caliphate. Both profoundly hate and despise Western democracies in general and the U.S. in particular, and view them as the major obstacle to their fundamental aspirations.

While the Soviet Union did, of course, wield a much greater military and economic power than the Jihadis, the Communist ideology had died and ceased to inspire even the members of the Soviet elite, much less the ordinary people, long before the Soviet Union fell apart. By contrast, the ideology of Islamic Jihad is sufficiently potent to inspire thousands of individuals to commit the most vile actions—slaughtering women and children—and has inspired untold additional millions to support these actions while espousing hatred and derision towards other religions, treating women in one’s own family in a way which amounts to gender apartheid, and engaging in other types of aberrant behavior. Meanwhile, modern technology and other tools of globalization enable private groups like al Qaeda to operate worldwide and project power on the level that, in the past, could have been exercised only by sovereign states. The Sept. 11 attacks were in fact such a projection of power, fully comparable in their intensity and level of destruction to the erstwhile armed attacks by sovereign states. In short, the threat we face is formidable, even existential in nature.         In this challenging strategic environment, the need for stronger executive powers is palpable. Indeed, the proposition that individual liberty and public safety need to be balanced differently in wartime, as compared to peacetime, is entirely unexceptional both as a matter of policy and constitutional law. It should be noted here that, contrary to the views of some critics, it is not the case that real, tangible individual liberty is being balanced, either during peace or wartime, with some anodyne state interests. Rather, what is being balanced is individual liberty versus the collective liberty of the American people to remain free from harm and able to conduct their lives as they see fit. Since the collective interests of the American people are but an amalgamation of the individual interests of all Americans, in the very real sense, we are talking about balancing one set of individual liberties against another, e.g., privacy interests versus survival interests. The fact that different people may not assign the same values to these interests does not necessarily mean that one set of interests is inherently less worthy of protection than another. And it is, of course, the duty of the political branches of our body polity to perform the necessary balancing, within the proper constitutional context. Significantly, the only proper way to look at the post-Sept. 11 balancing of the individual liberty and public safety by the Bush administration is to put it in historical context. In this regard, to note, as critics often do, that the Bush administration has taken some actions under, for example, the Patriot Act, or has engaged in warrantless surveillance of suspected al-Qaida communications flowing in and out of the United States, or has detained for the duration of the conflict captured al-Qaida or Taliban combatants, is entirely unilluminating. Indeed, if the Bush administration retained the previous, pre-9/11 balance between liberty and order, it would either mean that it was grossly derelict in failing to discharge its core duty of protecting the safety of the American people or that the peacetime balance was unduly tilted against individual liberty.         This latter possibility is self-evidently wrong and is not worth debating. It is here that we find most critics to be fundamentally wrong. After many debates with Bush administration opponents, having posed the following question to them—“If you don’t like how the Bush administration has altered the previous peacetime balance between liberty and order, how would you alter the balance?”—I have never gotten a serious answer. The proffered answers range from the useful but trivial suggestions—e.g., strengthening airline cockpit doors—to clearly insufficient—e.g., giving more money to first responders, having the FBI get better computers and more personnel. In our view, this clear unwillingness to even engage on this difficult but essential issue—balancing liberty and order is a tough task for any democracy even in peacetime, much less in the midst of war—is extremely regrettable. When one does consider American history, important information, essential for resolving constructively today’s debates, clearly emerges. The late Chief Justice William Rehnquist in his book, All Laws But One: Civil Liberties in Wartime (1998), provided a superb account of how the Lincoln, Wilson, and Roosevelt presidencies, all of which faced difficult wars, balanced liberty and order. Significantly, despite the heated and frequently over-the-top criticisms of the Bush administration, we do not believe that any objective observer can maintain that the Bush administration has done more to constrain individual liberty than its predecessor wartime administrations. If nothing else, this fact rebuts the notion that the Bush administration’s actions are somehow unprecedented in American history. As far as the evolution of events since 9/11 is concerned, in our view, it does not alter the fundamental imperatives described above. This is the case for two reasons. First, in our view, the Bush administration’s overall record of dealing with civil liberties has been quite restrained and does not lend support to some of the more hysterical claims that our constitutional system is in jeopardy. The fact that some of the wartime developments, particularly in Iraq, have not gone especially well is also to be expected—no wars in human history ever progressed smoothly, and mistakes are always made—and does not change the need for strong executive power. Second, even if the Bush administration’s record has been much worse, this might have been a basis for revising some particular wartime policies, but would not have altered the overarching need for a robust application of executive powers. Simply put, without a strong executive, our chances of winning this or any other war are very poor. This is not to say that reasonable people cannot agree about specific aspects of the Bush administration’s policies; our hope, however, is that we can move to the next phase in our debate, having agreed that, in principle, there is a clear and compelling need for stronger executive powers in the post-9/11 world, and for a different way to balance individual liberty and public safety. Best regards, David and Lee

FROM: Bruce Fein TO: David Rivkin and Lee Casey DATE: July 18, 2007
Dear David and Lee: To paraphrase Thomas Jefferson, in the matter of protecting and defending the Constitution and defeating terrorism, we are all Republicans, we are all Democrats, and we are all Americans. I know your convictions about post-9/11 executive powers are sincere, but I submit they are profoundly misguided. They would signal the end of the Constitution’s checks and balances, and protections against government abuses. The revolutionary idea of the Founding Fathers was the understanding that the chief mission of the state was to make men and women free to pursue their ambitions and to develop their faculties, not to build global empires or to aggrandize government power. I would suggest that you consider that you are endorsing a conception of executive power with earmarks more akin to Alexander Solzhenitsyn’s Gulag Archipelago than to the United States envisioned by the Constitution’s makers.

9/11 did not place the nation at war, and your effort to liken international terrorism to the danger of the Soviet Union during the Cold War, including the Cuban Missile Crisis and threats over Berlin, encroaches on the domain of the preposterous. War in the constitutional sense customarily requires an invasion, rebellion or genuine threat to the nation’s sovereignty or to its supreme national security interests. And the danger must emanate from a nation-state with power to raise an army and tax and spend to advance warfare.

9/11 is a novel case. War with a tactic rather than a nation-state is constitutionally troublesome because it means permanent war. There will always be at least one terrorist somewhere in the world hoping to kill an American, which is the definition of post-9/11 war under the Bush-Cheney doctrine. It speaks volumes that neither you nor any other Bush-Cheney executive power champion has suggested any benchmark that would define the end of the international terrorism conflict. And what president would aver to the American people that there will never be another terrorism incident or threat?

Let me turn to your al-Qaida analogy to the Soviet Union during the Cold War. The USSR then possessed a Red Army numbering 3 million deployed on the edge of Western Europe or otherwise and armed with first-class weaponry. Al-Qaida’s numbers are a tiny fraction of the same, and isolated suicide bombings are their odious hallmark. The USSR sported thousands of nuclear warheads and delivery vehicles (Backfire Bombers, ICBMs, SLBMs), whereas al-Qaida has none. The USSR enjoyed the talents of thousands of first-class scientists to develop the most advanced WMD, whereas al-Qaida has virtually none of that scientific expertise. Even Pakistan’s A.Q. Khan [widely known as the godfather of that country’s atomic bomb program] couldn’t hold a light to Soviet nuclear scientists. The Soviet Union threatened the very existence of the United States, a threat that turned palpable during the Cuban Missile Crisis. I would wager that neither of you or your families experience even one second of fear daily attributed to al-Qaida.

You seem to think that an evil intent, no matter how delusional, should be sufficient to place the nation at war. For example, you argue al-Qaida is to be feared because it craves a restoration of the caliphate officially abolished in 1924 by [Kemal] Ataturk [Turkish president in 1923-38]. That restoration is no more plausible than alchemy or a perpetual motion machine. A fatwa was issued against Ataturk for his action that foreshadowed Salmon Rushdie, but Ataturk persisted and survived.

I submit that you are strengthening al-Qaida by logarithmically magnifying its profile instead of accurately characterizing its adherents as reprehensible criminals, like John Walker Lindh or Zacarias Moussaoui. Your inflation makes it easy for al-Qaida to attract impressionable youths as recruits by creating the image that they are joining an organization that rivals the mighty Red Army that defeated the Third Reich. By declaring war against terrorists, Bush has made al-Qaida criminals into courageous warriors in the eyes of Islamic youths, and has boosted their recruitment success accordingly. Indeed, the National Intelligence Estimate reported in the news today concludes that al-Qaida’s fortunes are rising, not falling, which would be impossible without a steady stream of new recruits.

James Madison—father of the Constitution, president during the War of 1812 and master of human nature—understood the temptation of the executive to contrive excuses for war or to inflate danger manifold to aggrandize power and to lacerate liberty. He sermonized: “Perhaps it is a universal truth that loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad. Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it compromises and develops the germ of every other. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasuries are to be unlocked; and it is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed; and it is the executive brow which they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venal love of fame, are all in conspiracy against the desire and duty of peace.”

The Bush-Cheney view of the post-9/11 world fits Madison’s worry like a glove. Under the banner of war against international terrorism, they have aggrandized executive power while making Americans less safe, not safer.

For example, the president instructed the National Security Agency to intercept the e-mails and international phone calls of Americans on American soil on his say-so alone in contravention of the Foreign Intelligence Surveillance Act of 1978. It is unknown how many Americans have been spied on, how they were selected, what is done with the intercepted communications or if the NSA’s warrantless spying has yielded any intelligence that could not have been obtained with a FISA warrant. That is because the president refuses to say. If there were any success stories, they would have been immediately declassified and leaked to the press—a technique the president and vice president employed with exuberance through Scooter Libby to destroy Joseph Wilson and Valerie Plame. The president hoped to conceal the NSA’s spying forever, but was foiled by a leak to the New York Times, which published the program on Dec. 16, 2007.

It might be said that the NSA’s illegal spying has produced no figurative “dead bodies” yet. But remember the Church Committee revealed three decades of CIA and FBI illegalities consisting of burglaries, mail openings and illegal interceptions of international telegrams that yielded no immediate incriminating evidence. The Bush-Cheney legal theory to justify the NSA’s violation of FISA is truly harrowing: namely, that no law can restrict the president’s gathering of foreign intelligence, including laws forbidding torture, breaking and entering homes, opening mail, or kidnappings! Even if the Bush-Cheney White House does not stoop to such tyrannies, the legal claim they are asserting will lie around like a loaded weapon ready for use by any incumbent who covets destroying his detractors or political enemies. I would suggest you read Edward Gibbon’s Decline and Fall of the Roman Empire or Thucydides’ History of the Peloponnesian War.

Of course, the Bush-Cheney foreign intelligence claim is modest in comparison to their “all the world is a military battlefield theory.” The president maintains that since al-Qaida has threatened to kill Americans at any time or place, the entire United States is an active battlefield where he may deploy military force against any American who he suspects may be implicated in international terrorism. For example, when suspected terrorist Jose Padilla landed at O’Hare Airport in Chicago, the president could have ordered the military to kill him with a rocket attack or AK-47. (After his initial detention as an alleged illegal enemy combatant, the United States dropped that charge and is now prosecuting him in Florida in civilian courts for training in a terrorist camp in Afghanistan).

It is not reassuring that you cite with complacency the examples of Wilson and FDR. The latter herded 120,000 Japanese Americans into concentration camps during World War II on transparently racist and bogus claims of disloyalty (over the objection of non-civil libertarian J. Edgar Hoover) and then kept them there past the November elections of 1944, when no military or non-military official believed the extension was necessary, to avoid inflaming the passions of bigoted voters, especially in California. As for Woodrow Wilson, he celebrated the prosecutions of Eugene Debs and other World War I critics under the Sedition Act for the free speech audacity to question the motives of the allies in Russia or elsewhere. Like President Bush, President Wilson was convinced he was engaged in a virtuous war to end war and to make the world safe for democracy.

Accordingly, he should be treated as more infallible than the pope. He never made a mistake.

You assert that Bush’s record of dealing with civil liberties “has been quite restrained.” Did you ask Mahar Arar, who with American complicity was deported to Syria and subjected to torture? Did you ask Khaled al-Masri, who was kidnapped and transported to Afghanistan and brutalized for two years before being dumped into Albania? Have you asked Guantanmo Bay enemy combatant detainees, some who have been held for many years with no charges or trial? And how do you know if Bush has been restrained, when he continues to keep secret from Congress and the American people his several spying programs that escape any judicial oversight? You have no idea what the NSA is doing with the American communications intercepted under the warrantless surveillance program or how the NSA determines which Americans to target.

During the Nixon administration, the Huston Plan was developed to sanction domestic burglary, illegal electronic surveillance and illegal mail openings to detect domestic radicals. Even the FBI director protested: “The FBI is opposed to any covert mail coverage because it is clearly illegal and it is likely that, if done, information would leak out of the Post Office to the press and serious damage would be done to the intelligence community.” Do you think human nature has changed for the better since Nixon, and that Madison’s warning that men are not angels has become obsolete?

James Scheuer, who ran the CIA’s secret prison program in Eastern Europe, admitted to Congressmen Jeff Flake, R-Ariz., at a House Foreign Affairs Committee hearing on April 23, 2007, that errors were made in the CIA’s “extraordinary rendition” program.

The Bush-Cheney monarchical theory of the presidency has made Americans less safe in two respects.

First, the abuses have caused foreign allies to limit cooperation with the United States in defeating terrorism because of their notorious violations of fundamental principles of fairness and due process at Guantanamo. Italy has indicted 26 CIA operatives for kidnapping an Egyptian in Milan and dispatching him to Egypt for torture. Germany has arrest warrants out for 13 CIA operatives for the kidnapping and abuse of el-Masri. The Council of Europe has passed resolutions condemning the Bush-Cheney lawlessness in pursuing terrorists.

Second, the Bush-Cheney practice and theory of capturing, detaining and torturing suspected criminals abroad establishes a legal principle that would justify Russian President Vladimir Putin in kidnapping an American off the streets of Paris for transport to a Belarus dungeon for torture and indefinite imprisonment because Putin suspected the American had voiced sympathy for Chechen rebels.

Finally, you ask what should have been done post-9/11. Simply follow the Constitution. It is not a suicide pact. It is a fighting Constitution. It enables the United States to defeat al-Qaida by treating its adherents as criminals, which resulted in the trials and convictions of the 1993 World Trade Center bombers, the culprits in the embassy bombings in Kenya and Tanzania, and the conviction of Moussaoui. At present, Osama himself is under indictment by a federal grand jury. Scores have been convicted of terrorist-linked conspiracies at their inception. The Classified Information Procedures Act of 1980 enables terrorist trials without disclosing classified information, and has been praised by the secretary of the Department of Homeland Security, Michael Chertoff, who also testified to the Senate that military commissions were generally not needed to prosecute terrorists in lieu of ordinary civilian courts except perhaps on a battlefield abroad. The Department of Justice informed the Senate Intelligence Committee on July 31, 2002, that FISA worked splendidly to thwart terrorist plots in the bud and opposed any relaxation in the FISA warrant threshold. Before the Great Writ of habeas corpus was suspended for Gitmo detainees in the Military Commissions Act of 2006, not a single detainee had been released at the order of a federal court—even in the ridiculous case of Uighurs who threaten China, not the United States.

Liberty and due process are the rule under the Constitution, and deviations are the exception. The Bush administration has never shouldered the burden of demonstrating why its deviations are more than political optics to convey to an impressionable 9/11 public that the president is tough on terrorism. Political optics should never be an excuse to defile the signature of the United States for which so many have risked and given that last full measure of devotion at Cemetery Ridge, Iwo Jima and the Battle of the Bulge. Let’s not crucify the Constitution on a cross of political expediency.

Kind regards,
Bruce

FROM: David Rivkin and Lee Casey
TO: Bruce Fein
DATE: July 19, 2007


Dear Bruce:

Thanks for sharing with us your arguments, which feature pretty much an entire range of criticisms, both law- and policy-related, that have been directed at the Bush administration’s wartime legal architecture. We are pleased to offer our rebuttals.

To begin with, let’s register one major point of agreement—neither of us questions each other’s sincerity and good faith, or that of the other participants in similar debates. It is regrettable that so much of our policy discourse on the key national security issues seems to be polluted by ad hominem attacks or dark insinuations. It is refreshing not to worry about such things here.

Your first post contains what we see as four distinct arguments.

First, you do not credit al-Qaida with posing much of a threat to the United States and certainly do not subscribe to the view that what has happened on Sept. 11 and thereafter merits the use of the term “war.” This not being a war, in your view, it is both inappropriate and unnecessary to use the laws of war paradigm, which has provided the foundation of the Bush administration’s post-Sept. 11 legal policies.

Second, you posit that the actual impact of the Bush administration’s policies has been deleterious; far from enhancing our security, they have made things worse.

Third, you opine that these policies are profoundly unconstitutional, both overall and with respect to many of the specific aspects of the administration’s legal paradigm.

Fourth, you offer your own policy prescriptions—exclusive use of the law enforcement paradigm, with al-Qaida fighters being treated as criminals to be tried in regular federal courts, all surveillance being done within the FISA context, Guantanamo being closed, etc.—for dealing with the post-Sept. 11 threats.

Our rejoinders are as follows:

1. Whether or not we are in a state of war with al-Qaida, Taliban and various Iraqi Jihadist groups is a fairly straightforward question. The international law of war provides a series of objective tests to determine whether a given extent of violence, or a series of violent encounters, rises to the level of an armed conflict. These tests include such factors as the number of casualties involved on one or both sides; whether the major targets have been attacked; whether the warring parties espouse political goals, as distinct from purely pecuniary desires; the nature of the weapons being used; and the statements by the conflict participants evidencing their view of what is taking place, especially whether one or both parties has claimed for itself belligerent rights, as has the United States with regard to those responsible for the Sept. 11 attacks. By all of these indicia, the United States is at war with al-Qaida and its affiliated entities.

Of course, as a non-state entity, al-Qaida itself has no legal right to make war in the first instance. In other words, all of its violent actions are punishable—unlike the actions of a sovereign state that resorts to armed force. That does not mean, however, that al-Qaida cannot be involved in an armed conflict—as an unlawful or unprivileged belligerent. Certainly, that group has insisted that it is at war with the United States (in the form of a “jihad”) since the mid-1990s. During this time, it has used both military-style weapons as well as improvised weapon systems, e.g., airliners, to attack a broad array of American targets in the United States and abroad, including warships, military barracks, embassy buildings, the Pentagon and the heart of our financial infrastructure, New York City. Thousands of American civilians and military personnel have lost their lives as the result of such attacks. (Indeed, the number of Americans killed on Sept. 11 alone rivals the number killed by the Japanese planes attacking Pearl Harbor.) Moreover, al-Qaida’s goals are political and religious: to drive the United States from the Middle East, and then to spread its form of Islam throughout the region and then the World. It simply is not comparable to a criminal gang or organized crime syndicate, and the United States—which does have the right to make war—was fully justified in invoking the rights of a belligerent against al-Qaida and its allied groups.
 
That conflict continues, with al-Qaida forces striving to carry out additional attacks on U.S. soil. Moreover, they are engaged on a virtually daily basis in combat with U.S. and allied troops worldwide, in places ranging from Iraq to Afghanistan, to Somalia, to Yemen, Jordan and Saudi Arabia. And, although some country-specific al-Qaida outfits operate with considerable operational autonomy, al-Qaida retains a centralized and relatively well-defined chain of command. For example, on July 4, U.S. forces in Iraq nabbed the highest-ranking Iraqi member of al-Qaida in Iraq: Khaled Abdul-Fattah Dawoud Mahmoud al-Mashhadani, aka Abu Shahid, who served as the key intermediary between the Iraqi-based al-Qaida operatives and Osama bin Laden and his No. 2, Ayman al-Zawahiri, who are, presumably, Pakistan-based.

In this regard, we also disagree with you that the administration has somehow improperly exaggerated the extent of the battlefield in this war. In a global war where hostile actions take place on several continents, on land, sea and air, the battlefield is correspondingly large. There is also no legal reason why the U.S. territory cannot be a battlefield, to the extent that our enemies have come here to launch attacks against us. Historically speaking, numerous wars were actually waged in North America, including both the Revolutionary and Civil Wars.

The fact that today’s battlefields do not look like the battle of Borodino during the Franco-Russian War of 1812, or the battles of Verdun, the Marne or the Somme, circa WW I, or the battles of Kursk or Stalingrad, circa WW II, is neither surprising, nor legally relevant. As military technology, strategy and tactics evolve, the face and pace of battles changes, as well. Indeed, because of tremendous U.S. military superiority in all of the conventional indices of military power, our 21st century enemies are certain to continue to use asymmetrical warfare approaches, with a particular emphasis on waging unlawful combat—mounting attacks against civilians, operating out of uniform and staging out of civilian areas. If this is not war, then the definition of war has lost any discernible content and most of the 21st century armed struggles are wars no more.

You also challenge our claim that al-Qaida poses an existentialist threat to the United States. Reasonable people can disagree on this point. We note, however, that the gravity of a particular threat is critical as a policy matter, in terms of resource allocation and such, but does not legally alter the nature of the conflict. Once the U.S. finds itself at war, even with a weak adversary, the laws of war paradigm with all of its particulars—e.g., detention of captured enemy combatants for the duration of hostilities—can be legitimately employed by the executive branch.

As to the threat levels, it would be useful to note that the just-released National Intelligence Estimate—which you mention in your response—a document which reflects the consensus view of America’s numerous intelligence agencies, posits that al-Qaida remains a highly dangerous entity, which has gained sanctuary in certain areas of Pakistan and relentlessly seeks access to weapons of mass destruction. It is, of course, true that al-Qaida and Jihadist groups in general possess neither the material nor the scientific know-how of the former Soviet Union. This does not, however, make them benign; mortal enemies come in many shapes. And history is replete with examples of barbarians overcoming, through sheer savagery, determination and perseverance, and over a period of decades, far more technologically advanced, sophisticated and refined societies. The fate of both the Western and Eastern Roman Empires is an excellent case in point, and the belief by many members of their respective elites that uncouth and primitive barbarians could not possibly overcome the heirs of Rome played a big part in their undoing.


2. On the issue of how well the administration’s policies have fared, reasonable people can also disagree both about whether the war is proceeding well and, if not, whether the administration is at fault.

Let’s take the second proposition first. In this regard, even if one assumes that al-Qaida has gotten stronger, in terms of the size of its membership or its ability to wage global operations, this would not necessarily mean that the U.S. strategies are flawed. Wars are complex and interactive affairs, and there are many historical examples where both sides in a protracted conflict have grown stronger over a period of years as they mobilize more and more resources. In the case of World War II, for example, German weapons inventories, the quality of weapons systems and the Wehrmacht’s fighting prowess continued to improve throughout most of the war. Moreover, during much of the same period, the popularity of the Nazi party and Hitler’s personal popularity also hummed along and even grew. This, of course, did not mean that Germany did not lose.

We do not doubt that various facets of the administration’s policies, including our engagements in Iraq and Afghanistan, the publicity surrounding Guantanamo, as well as the Abu Ghraib abuses, have angered many Muslims who may now be more supportive of al-Qaida than they might otherwise have been. This, however, was inevitable once the United States began to fight back.

Al-Qaida has justified its actions based on a particular (and historically undeniable) strain of medieval Islam, and has successfully portrayed many U.S. actions as being anti-Muslim. Unfortunately, there are many Muslims who view any assault on other Muslims—regardless of the reason—as an assault on their religion. We would venture a guess that the incremental impact of the administration’s policies on al-Qaida’s recruitment is pretty difficult, if not impossible, to discern. By the same token, your argument taken to its logical conclusion would mean that we should not fight al-Qaida at all, nor should we have fought the British, the Germans or the Japanese, because the act of fighting and various related policies only ticked them off more. At the same time, we do know, based on bin Laden’s numerous statements and other al-Qaida and Jihadist literature, that there is one factor that greatly enhances their willingness to attack us—it is the perception of American weakness, described by bin Laden as “a weak horse” phenomenon.


3. When it comes to the constitutionality of the policies of various administrations, we are a bit confused about your position. There are passages in your response, complete with the recitation of some of James Madison’s statements and your discussion of the Woodrow Wilson and Roosevelt wartime records, that could be construed to mean that, in your view, any robust application of the laws of war paradigm, no matter how much the U.S. is at war or how dangerous is the enemy we are fighting, is fundamentally unconstitutional. On the other hand, we may be wrong in deciphering your views. Accordingly, your position may well be that it is entirely constitutional to intercept without complying with FISA battlefield communications of our enemies, that captured enemy personnel can be detained for the duration of hostilities and not be treated as criminal suspects, that executive power can be greatly augmented vis-a-vis both other branches of the federal government and society, provided, of course, that the U.S. is involved in a real, as distinct from make-believe, war. Before we delve into the debate about warrantless surveillance or the so-called suspension of the Great Writ (which we, by the way, believe to be a total misnomer, since the judicial review procedures provided in the Military Commissions Act of 2006 are entirely constitutionally sufficient as a form of habeas review), it would be useful if you could clarify where you stand on this fundamental issue.


4. On the issue of what you believe should have been done after Sept. 11, there is no ambiguity. You are clearly a proponent of the same pre-Sept. 11 standard law enforcement policies that were used, in your view successfully, in the prosecutions of “the 1993 World Trade Center bombers, the culprits in the embassy bombings in Kenya and Tanzania, and the conviction of Moussaoui.”

Success, of course, is a relative concept. Unfortunately, even the very vigorous application of the law enforcement paradigm before Sept. 11 failed to prevent those attacks. The 9/11 Commission Report has explored in great detail the various deficiencies of the Clinton and Bush administrations’ policies, which have contributed to this tragic outcome, including the infamous “wall” between the FBI’ and DOJ’s law enforcement and intelligence sides, the inability to mount robust paramilitary operations against bin Laden (caused both by bureaucratic snafus and a misplaced obsession with the Executive Order Against Assassinations, which did not even apply here) and the kinder, gentler rules of the game, followed by the CIA’s Clandestine Service, e.g., bans against working with “human rights violators.” We suppose one could argue that all of these problems could have been fixed, while retaining the basic parameters of the law enforcement paradigm. We very much doubt it, however.


In any case, we believe that the criminal justice system is inherently ill-suited to the task of securing the American people against al-Qaida’s attacks. In part, our skepticism about the ability of the law enforcement system to meet and defeat al-Qaida is predicated on the legal and political trends over the last 40 years, which have made our criminal justice system increasingly defendant-friendly.

More fundamentally, however, the criminal justice system itself is reactive. It is designed to punish bad behavior and not to prevent it in the first place. Some individuals can, of course, be deterred by the fear of punishment—but deterrence is not a particularly effective weapon against individuals who are ideologically or religiously motivated. The guilty plea of John Walker Lindh notwithstanding, it also is difficult to imagine how prosecutions could be consistently and successfully conducted against individuals who operate on a trans-national basis and who may have the assistance and protection of foreign states.

Finally, in an article in the May/June issue of National Interest (“Family Feud: the Law in War and Peace”), we looked at the experience of the European countries, which have grown hostile to the application of the laws of war paradigm and opted to rely more or less exclusively on law enforcement tools. We believe that the European judicial and investigatory systems are far more capable of mounting successful prosecutions of terrorists than the U.S. system, largely because of aspects of the civil law system—such as lengthy pre-trial detentions, looser evidentiary rules and a higher degree of secrecy—which would be incompatible with our Constitution. We would rather rely on the laws of war in these circumstances than attempt to change fundamentally what is and is not permissible in the common law system that we all value. (Even so, it is interesting that, despite the civil law’s more robust law enforcement aspects, a number of European officials have begun to call, following the most recent attempted terror attacks in London and Glasgow, for some enhanced counterterrorism techniques, partaking of some of the distinctive features of the laws of war paradigm.)

The bottom line, it seems to us, is that relying on the law enforcement model would put Americans more at risk than does the laws of war model, and they are neither legally nor morally required to assume that risk.

Best regards,
David and Lee

 

FROM: Bruce Fein
TO: David Rivkin and Lee Casey
DATE: July 20, 2007


Dear David and Lee,

Many thanks for the punctuality and cogency of your response. I remain thoroughly unconvinced.

You do not dispute that your definition of warfare means the United States will be permanently at war, an eventuality the Founding Fathers would have abhorred as irreconcilable with non-tyrannical government. That alone casts doubt on your insistence that the United States is at war with international terrorism, at least in the international law sense if not the constitutional sense.

Even applying international law standards, the case for characterizing the conflict as war falls short. During the approximately six years of conflict beginning with 9/11, the number of deaths inflicted by international terrorists against U.S. citizens has approximated 4,000, or less than 700 per year. During that same period, the number of murders in the United States, which everyone agrees does not justify declaring a war against murder, was approximately 105,000, or 26 times the number of deaths caused by international terrorism. Since 9/11, no major U.S. target has been attacked. Indeed, terrorist plots have regularly been thwarted at their incipiency with the customary application of criminal conspiracy law. The international terrorists proclaim political objectives, but so did Timothy McVeigh, which did not turn his bombing of the Oklahoma City federal building into a war against domestic terrorists. The fact that President Bush has unilaterally claimed belligerent rights should count for little or nothing. As I pointed out in my previous reply, the Founding Fathers understood that the president would tend to inflate modest dangers into war in order to aggrandize power and to crush his political enemies.

Al-Qaida admittedly is more dangerous and repulsive than organized crime. But that does not mean its danger qualifies as war. Indeed, you tacitly agree that you do not alter your ordinary behavior or seem required to make personal sacrifices in the so-called “war” with international terrorism. Although the latter are not invariably earmarks of war, they are indicative. Your reference to the fall of Rome to barbarians is instructive. The barbarians prevailed not because of their persistent savagery, but because Romans would no longer fight to defend an oppressive tyranny.

You defend the president’s claim that every square inch of the United States is a battlefield where lethal military force can be deployed to kill suspected al-Qaida members, affiliates or sympathizers. Moreover, on a battlefield, military law can be imposed and military tribunals can be employed to govern everyone on the battlefield—which means the entire United States population. In other words, you are asserting that the president may supplant civilian law with military law throughout the United States—a tyranny more pronounced than the indictments against King George III in the Declaration of Independence.

At least the subtext of your argument is that the president is crowned with constitutional power to assert any authority calculated to reduce the risk of an international terrorist attack. That proposition profoundly misunderstands the Constitution and the United States. It would mean that the president could imprison every American and silence every critic of the war against terrorism in the name of lowering the risk of a second edition of 9/11. The First, Fourth and Fifth Amendments would be crushed, freedom would be eliminated and the United States’ reason for being would expire. As in Vietnam, where cities were destroyed in the name of saving them, you are suggesting that the president similarly enjoys power to kill the Constitution in order to rescue it. A decent respect for individual liberty and democracy means that some risks must be accepted to avoid plunging into a totalitarian state reminiscent of Stalin, Hitler and Mussolini.
   
I submit you are wrong to assert that al-Qaida would have attracted adherents irrespective of Abu Ghraib, Gitmo, and international lawlessness in kidnapping, imprisoning and torturing Muslims in secret. That smacks of maintaining that the American clamor for independence did not gain adherents from the Stamp Act, writs of assistance, the Boston Massacre, the Declaratory Acts and the Intolerable Acts after the Boston Tea Party.

I never insinuated that we should not have captured, prosecuted and punished al-Qaida as we did Carlos the Jackal because they might be angered at their incapacity. What attracts recruits are abuses in exercising the power to kill and maim the innocent without justification, not the exercise of power itself. The Battle of the Bulge did not accelerate Nazi recruitment, whereas Hitler’s destruction of Lidice jumped support for the Allied Powers.

I would submit that your view of the president’s constitutional powers post-9/11 are alarming. You contend that Congress is powerless to regulate his interception of every communication of American citizens because all are occurring on a battlefield. The Fourth Amendment and FISA would be at an end. As you have conceded, the war against international terrorism is endless, and so is the battlefield. I assert that Congress under the Necessary and Proper Clause validly regulated the president’s collection of foreign intelligence in times of war; and that the president cannot flout the statute on the theory that no restriction on his powers to collect intelligence is constitutionally tolerable.

With regard to habeas corpus, it can be suspended in cases of rebellion or invasion, but neither circumstance applies post-9/11. Moreover, there has never been demonstrated any practical reason that might threaten the release of a genuine terrorist if habeas corpus was available to every Gitmo detainee.

It speaks volumes that the 9/11 Commission Report you underscore declined to recommend a single one of the monarch-like powers asserted by President Bush under the banner of fighting international terrorism. For example, it did not recommend that the president be free to intercept all the communications of Americans without warrants or otherwise, or that the president kidnap, imprison and torture abroad. It is true that the criminal justice system did not prevent 9/11. Similarly, the criminal justice system does not prevent 17,000-20,000 murders annually. That does not mean the system does not work. You have not provided concrete evidence that the criminal law has not and cannot defend against al-Qaida terrorists as effectively as the law against murder defends against murderers.

On the one hand, you argue that the criminal law is deficient because it may require international cooperation. But at the same time you defend President Bush’s kidnappings, imprisonments and torture abroad, precisely tactics that have alienated friends like Italy and Germany. Both have scores of CIA operatives under indictment because of illegal activity on their soil or against their citizens. Moreover, European countries successfully resort to the criminal law and not the law of war in confronting terrorism with multinational elements—for example, Spain and the Madrid train bombing or Britain and the London subway incidents. Your gloom about the criminal law is unjustified. Just ask Ramzi Yousef or Mir Amal Karzai. Even Osama bin Laden himself is under federal indictment by a grand jury and scheduled for a criminal trial if captured.

Contrary to your stipulation, the criminal justice system is forward-looking, not reactive. The law of criminal conspiracy post-9/11 has eventuated in the prosecutions and foiling of numerous terrorist plots in their pre-embryonic stages. And remember the famous Dennis case from law school. Dennis v. United States , 341 U.S. 494 (1951). Communist party leaders were convicted of conspiring to overthrow the government of the United States although success was not plausible for another several centuries at best.

I do not expect exact proof of the deficiencies of criminal law to defeat international terrorism akin to Euclidean geometry. But I submit you are relying on counterfactual and counterintuitive assertions that are unconvincing.

Kind regards,
Bruce

 

FROM: David Rivkin and Lee Casey
TO: Bruce Fein
DATE: July 20, 2007


Dear Bruce:

As we enter our third round in this exciting debate, let’s try to narrow the discussion a bit, if only to help focus on some key underlying issues.

Hence, let’s agree that our international law definition does not mean that the United States would always be permanently at war. The fact that there may be bad people overseas, who wish us ill and are even able to do something about it, does not a war make. Likewise, we do not believe that the United States is at war with international terrorism. Rather, we are at war with specific entities and groups—al-Qaida, Taliban and Iraqi insurgents—who have been attacking us at a level sufficient to usher in a state of armed conflict. (Significantly in this respect, the United States has not launched attacks against terrorist groups, such as the IRA, the Tamil Tigers or even Hamas, who are not engaged in the conflict being waged by al-Qaida against American interests around the world.)

Now, you mock a bit the proposition that, even applying international law standards, we are at war. To begin with, we do not know how you get at the 4,000 figure for the U.S. citizens killed by al-Qaida and affiliated entities beginning with Sept. 11. Even a very approximate count of the casualties in the Sept. 11 attacks, as well as the casualties sustained by the U.S. armed forces, State Department personnel, other government agency employees, and private contractors in Iraq and Afghanistan, results in well over 8,000 casualties. In our view, the fact that no major target on American soil has been attacked since 9/11 is a testament to the success of the Bush administration’s wartime policies; it certainly does not render the conflict between us and al-Qaida into something other than war.

Incidentally, plenty of U.S. targets, including American military, economic and cultural installations in Iraq, Afghanistan and elsewhere in the world, have been attacked over the last six years by al-Qaida and affiliated entities.

Let us also stipulate that many Americans perish from car accidents, criminal attacks and mishaps of all kinds every year. Regrettably, such is the price of living in a modern industrial society. This is utterly irrelevant to the question of whether or not we are at war; international law has never required the comparison of war- and non-war-related casualties as a part of the inquiry into whether or not a legally cognizable armed conflict has commenced. The fact that our sworn enemies have failed to reach repeatedly into the United States also is hardly dispositive of the issue of whether or not we are at war. Indeed, more American civilians died on Sept. 11 than perished in WW I and WW II combined—or, for that matter, in the Civil War—at least from armed attack. Nevertheless, those conflicts surely were wars.

Likewise, the question of how much domestic life has or has not been affected by the ongoing hostilities with a resolute foe is not legally dispositive. With the exception of the War for Independence and the Civil War, no American war has had an appreciable impact on American territory—and most of the Civil War fighting was confined to Virginia, the Carolinas, areas along the Mississippi and various border states. Historically, we have been very fortunate.

By the same token, it has always been the case, both as a matter of international and U.S. domestic law, that, should an enemy succeed in infiltrating spies and saboteurs onto American soil, the ensuing events are treated as something that has occurred on a battlefield and the individuals involved are treated as enemy combatants. This, in fact, is the central teaching of the Quirin case, Ex Parte Quirin, 317 U.S. 1 (1942), and the position that the Supreme Court has reaffirmed just recently, in the Hamdi case.

This leaves us with a couple of more difficult issues. Although you have not clearly responded to our question—whether or not you felt that a full-fledged wartime paradigm was fundamentally incompatible with the U.S. Constitution, no matter with whom we may be fighting—based on the tenor of your response, it appears that you believe the peacetime balance between individual liberty and public safety is constitutionally compelled at all times. This is certainly the sense we get from your discussion of the wartime policy records of the Roosevelt and Wilson administrations, as well as your ruminations about Vietnam and the ongoing developments.

This would make the United States the only independent sovereign which cannot, under any circumstances, avail itself of the distinctive legal architecture associated with a state of war. Keep in mind that the only difference between the tens of thousands of “prisoners of war” held by the United States during World War II and the Guantanamo detainees is that the German and Italian POWs largely obeyed the fundamental rules of war—fighting in uniform, openly armed and in accord with the laws and customs of war. None of these individuals were tried and convicted by a criminal court before they were detained.

With regard to the criminal justice system, it certainly does not succeed in preventing all crimes. However, criminal behavior does not generally result in the deaths of many thousands of innocents on a single day. Moreover, and more to the point, the criminal justice system is designed to deal with our society’s miscreants—those who deviate from the general norm of law abiding behavior. Al-Qaida is a foreign threat which has not merely departed from our norms. Like Nazi Germany and Imperial Japan, al-Qaida fundamentally rejects our model of government and society and seeks ultimately to replace it—by force of arms—with a model which they believe to be superior.

In this regard, the Bill of Rights assumes that the government will have a legal monopoly—at least—on the use of military style armed force. That simply is not the case with regard to al-Qaida and its allies. They both claim the right to use force (based on their religious convictions) and have been able to project power in a manner that most sovereign states are unable to accomplish. Keep in mind that, if we are not at war, then Congress, too, acted beyond its powers in authorizing the use of the armed forces against al-Qaida.

If this is simply a law enforcement matter, then the following should have been the U.S. reaction to the Sept. 11 attacks: One or more grand juries should have been empanelled to investigate the circumstances of the various deaths in the Southern District of New York, the Eastern District of Virginia and the Western District of Pennsylvania on Sept. 11. Once sufficient evidence was presented to the grand jury to justify the indictment of those responsible—presumably Osama bin Laden and his various lieutenants—an indictment should have been sought. Once the indictment was issued, arrest warrants would also have had to have been obtained.

Since the relevant individuals were not then present in the United States, our diplomats would have had to seek the assistance of the foreign governments controlling the areas where they could be found. Although the Taliban was never the government of Afghanistan, being in 2001 merely one of several private militia groups (albeit the most successful) then fighting for control of that country, they did control the areas in which al-Qaida operated and would, therefore, have arguably been the appropriate recipients of a request for assistance in executing the warrants. The Taliban would likely not have been responsive to such a request, as they were in fact unresponsive to President Bush’s more forceful demand that Osama bin Laden be turned over to the United States.

The next step would have been going to the United Nations, requesting sanctions against the non-government of Afghanistan for refusing to extradite or transfer the “suspects” to U.S. custody. If the Security Council refused to impose such sanctions or (more probably) if the sanctions proved ineffective, the U.S. would have had few options. Ordinarily, the refusal to cooperate in a criminal prosecution/investigation would not be considered a legitimate casus belli.

All the while this sad minuet played out, al-Qaida would have been free to plan and execute further attacks against the American homeland and U.S. targets overseas.

That, in a nutshell, is why the criminal justice system is insufficient to meet al-Qaida’s challenge—and this does not even take into account the very real problems presented by using the criminal justice model on a going forward basis. For example, given the highly demanding requirements governing the admissibility of physical evidence in criminal trials, it is unclear how we could hope to prosecute successfully an individual captured on a foreign battlefield.

We understand, of course, that Europe has taken a different tack. Not only are their legal systems better adapted than ours to dealing with terrorism cases, but their circumstances are quite different. Although Europe is arguably more geographically exposed to jihadist terror than is the United States, many European states have large and to some extent hostile Muslim populations to contend with. The attitudes of these populations (which often have not been well treated by their host societies over the past three or four decades) must be taken into account in formulating anti-terror strategies. By contrast, the United States is a nation of immigrants, and its Muslim population is largely integrated into the larger society—many American Muslims died on Sept. 11. The United States is not, and should never be, at war with Islam, but it is certainly freer than Europe to be at war with Islamicists. The trans-Atlantic domestic politics are simply different.

Moreover, since the Second World War ended, Europe has enjoyed an American security guarantee that has permitted it—especially since the Soviet Union dissolved in 1990—to effectively disarm. Most European states, with the important exception of Britain, are no longer able to field significant military force beyond (and sometimes even within) their own borders. It is not, therefore, surprising that European states are less willing to use military power or resort to the laws of war paradigm—even against a military threat.

The United States, however, does have the resources and will to defend itself by military means. That being the case, requiring the American people to rely on a criminal justice system designed to address the domestic threat of deviant fellow citizens makes little sense, either legally or morally.
   
Best regards,
David and Lee

FROM: Bruce Fein
TO: David Rivkin and Lee Casey
DATE: July 21, 2007


Dear David and Lee:

Let me suggest that we be chastened by philosopher Sam Johnson’s comment on Milton’s Paradise Lost: Although every page dazzled and every word mesmerized, none ever wished it were longer.

You seem to evade my indictment that your theory of war means it is a permanent fixture on the American legal landscape. You ask me to agree that the U.S. will not be permanently at war, but provide no standard for knowing when it will end. Are you suggesting (channeling) Justice Potter Stewart on obscenity in Jacobellis v. Ohio, 378 U.S. 184 (1964)—I’ll know it when I see it?

I suggest you are blurring critical issues by conflating the genuine wars against the Taliban regime in Afghanistan and Saddam Hussein in Iraq with the conflict with a non-state entity, al-Qaida.

Afghanistan presents a geographically defined battlefield. Ditto for Iraq. Warring against those nations does not implicate martial law in the United States, as does the asserted war against international terrorism or al-Qaida. The Bush-Cheney post-9/11 policies I have questioned or excoriated relate to the latter, not the former. Iraqi insurgents are not taken to Gitmo. They are not the focus of the NSA’s illegal warrantless surveillance program. The U.S. wars in Iraq and Afghanistan have engendered no novel war initiatives, following the pattern of our clashes or wars in Bosnia or Kosovo. It is al-Qaida and international terrorism that has occasioned the Bush-Cheney constitutional monstrosities, for example, treating every square inch of the United States as a battlefield subject to military rather than civilian jurisdiction.

I would suggest you miss the mark in quibbling over the earmarks of war for constitutional purposes. We know with regard to the express words of the Constitution, war should mean a danger as acute as “invasion or rebellion,” the touchstones for congressional suspension of the writ of habeas corpus.

Al-Qaida falls short of the mark. Its members do not threaten an invasion. They are no threat to U.S. sovereignty. They have not displaced civilian courts. Their tactics do not confound the criminal law. Their numbers are trivial compared to traditional armies.

I have never insinuated that there is no such thing as war. The Civil War, World War I, World War II, the war against Iraq or Afghanistan have satisfied that definition. I referred to wartime abuses, however, to establish that we should be reluctant to embrace a definition of war as does yours and President Bush’s, that is perpetual. Perpetual war invites grim abuses, as the Founding Fathers, especially Madison, understood.

Your effort to distinguish al-Qaida from murderers in the U.S. who collectively inflict vastly greater mayhem on the innocent—think of the recent incident at Virginia Tech—is unpersuasive. Al-Qaida intends to kill, but so do murderers. The fact that murderers are typically social misfits (but what about Jean Harris?) is irrelevant to the danger they represent or our ability to prosecute successfully. Al-Qaida rejects our form of government, but so did the Communist Party of the United States of America. And its members, including those prosecuted in Dennis were attempting to overthrow the government by force and violence. Did you think we were at war with the CPUSA? 

You are wrong to insist that the Bill of Rights assumes that the government will have a legal monopoly on the use of a military style armed force. Think of the Civil War. Both sides were armed. Both sides claimed a legal right to arm. Yet the Bill of Rights was not suspended in the Union. That conclusion was reinforced in Ex Parte Milligan, 71 U.S. 2 (1866).

You are also wrong to maintain that war in the constitutional sense obtains whenever Congress authorizes the use of the armed forces. Congress provided for the use of the military in Lebanon in 1983 without a U.S. war unfolding there. When U.S. military barracks were attacked, the U.S. did not announce the nation was at war with Hezbollah or its sponsor Iran.

As to what could have been done in the aftermath of 9/11, your caricature is misplaced. Nothing in the Constitution prevents use of military force in support of civilian criminal trials. Remember the 1916 Pershing expedition in Mexico that was short of a war there? The military can be used to capture and kill fleeing felons on foreign soil. The FBI has and can be used to kidnap criminal or terrorist suspects abroad for trial in the United States, akin to Israel’s kidnap of Adolf Eichmann in Argentina for trial in Israel. The U.S. Supreme Court has affirmed that the Fourth Amendment does not travel abroad. There was no legal dubiousness of intercepting the Egyptian plane carrying the Achille Lauro terrorists and forcing it down in Italy for trial there or elsewhere. You are wrong to imply that anytime the military is employed there is a state of war in the constitutional sense. The military was even used in tracking down the odious snipers in the Washington, D.C., metropolitan area. While you ridicule the idea of indicting Osama bin Laden, that is exactly what the executive branch has done. There is an outstanding indictment of the arch-terrorist returned by a federal grand jury. President Bush has not asked for dismissal of the indictment because overtaken by war or otherwise.

All enlightened legal systems are matters of degree and sensible line-drawing, including the idea of war. And in drawing lines, the mission of the state should be foremost—to secure inalienable rights to life, liberty and the pursuit of happiness. These rights must be balanced against the need for national survival or safety. During the Civil War, President Lincoln explained the tension this way: “Is there, in all republics, this inherent and fatal weakness?” “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”

Under the Lincoln standard, I submit the burden is on you to justify the alarming powers President Bush has claimed post-9/11—for example, flouting FISA or detaining citizens as enemy combatants on his say-so alone—as reasonably necessary to maintain the existence of the United States. And you have not come close to doing so.

Kind regards,
Bruce

FROM: David Rivkin and Lee Casey
TO: Bruce Fein
DATE: July 23, 2007


Dear Bruce:

Virtually all of your observations relate to the two fundamental issues we began with at the outset of our debate: Is the United States waging a legally cognizable war against al-Qaida, and, if so, what are the legal implications?

On the first issue, to repeat the point we have made before, under the traditional international and domestic law tests, the United States is at war with al-Qaida. The fact that these tests involve an all-facts-and-circumstances-type of analysis does not render them entirely subjective; this is certainly a far cry from Justice Stewart’s “I know it when I see it” obscenity analysis. We should emphasize here, though, that a couple of the considerations you noted—e.g., a large number of deaths caused annually in the United States by various criminal acts or the desire of some U.S. domestic groups, be they communists, white supremacists, or other irreconcilables, to overthrow the government—are not at all a part of the traditional law of war analysis. As such, they are utterly irrelevant to what we are discussing.

It is also the case that, where states battle non-state actors, difficult classification issues are often involved. For example, was the British campaign against the IRA during the 1970s an armed conflict or not? This is a serious question that is not, and cannot be, resolved simply by asserting that a state cannot be at war with a non-state actor. Indeed, the United States courts have acknowledged that the U.S. government can be, and has been, at war with non-state actors such as American Indian tribes and the so-called Confederate States of America.

In our view, the facts on the ground of this conflict—including the nature and organization of al-Qaida, its stated purposes, its resort to violence of a kind characteristic of armed conflict, targeting of U.S. military and civilian forces around the world, including within the United States itself—as well as the military response authorized by Congress, all make clear that the United States (and its coalition partners) are at war with al-Qaida and its affiliated entities.

That war will end when the United States has eliminated al-Qaida’s ability to engage in and project violence at a level that qualifies as an armed conflict, based on the indicia described above. No formal surrender or peace treaty is necessary, and the fact that it may be difficult to tell precisely when this occurs does not mean that the war is endless, only that it will very likely end with a whimper as opposed to an aircraft carrier ceremony. (The war could also end, of course, if al-Qaida simply gives up and stops fighting and disperses, if the United States were to negotiate a “peace” with al-Qaida, or if al-Qaida were to prevail and subject us to its caliphate. None of these scenarios, however, seem very likely.) That there may continue to be “jihadists” in the world does not mean that the war will always continue, any more than the continuing existence of small numbers of Japanese soldiers scattered in South Pacific jungles meant that the Second World War continued until they were all captured.

You seem to acknowledge that we are at war with al-Qaida and Taliban in Afghanistan, and with al-Qaida and others, in Iraq. Yet you claim that we improperly conflate this, allegedly geographically limited, conflict with a broader global battle against al-Qaida. It appears that your main problem is the size of the battlefield. We find this argument difficult to credit. Why is it that fighting against al-Qaida in Afghanistan, tribal areas of Pakistan or the arid wastelands of Anbar Province is a legally cognizable conflict, but fighting against exactly the same foe on U.S. soil somehow immediately becomes law enforcement? World Wars I and II were also geographically confined, at least from the perspective of North America. Claiming that the war is limited to those countries makes neither strategic nor legal sense. (One factual correction: Iraqi al-Qaida members have been taken to Gitmo, and none of us know which al-Qaida units, be they Afghanistan-, Pakistan- or Iraq-based, are the focus of the NSA’s terrorist surveillance program. Hopefully, the NSA is monitoring communications in and out of the U.S. with all of the al-Qaida forces worldwide.)

Moreover, throughout all wars in human history, the warring sides have routinely dispatched spies and saboteurs to each other’s home territory—and mounted full- scale invasions when they have the necessary resources. All of these hostile actions are correctly viewed as part of war, and the individuals involved are properly treated as enemy combatants, albeit they may well be “unlawful” or “unprivileged” combatants. This was the exact set of circumstances at issue in the famous WW II Supreme Court Quirin case, where several German saboteurs infiltrated the U.S. they were eventually apprehended, tried by a military commission, and most were executed. If you accept the notion that we are at war with al-Qaida or the Taliban in Afghanistan, how is al-Qaida infiltrating saboteurs into the U.S. fundamentally different from the German infiltration of Quirin saboteurs? The fact that the Germans arrived offshore by submarine, and al-Qaida operatives fly into the U.S. would not seem to be legally significant.

On the second issue—what are the legal implications of the state of war?—we also, unfortunately, seem to be far apart, or at least seem to be talking past each other.

First, we are aware of no authority for your claim that, constitutionally speaking, war-related measures on U.S. soil can only be triggered in circumstances where the danger is “as acute as ‘invasion or rebellion.’ ” These words describe solely the circumstances in which congressional suspension of the writ of habeas corpus may be appropriate. This writ has not been suspended in this war, and neither we nor, for that matter, the Bush administration advocate its suspension. Indeed, suspending the writ has not been a standard part of American wartime policies.

Yet, there is a panoply of the perfectly legitimate and indispensable wartime uses of power which could not be constitutionally employed in peacetime. A lot of them have to do with the detention, without any criminal charges, of captured enemy combatants, and their interrogation to obtain actionable intelligence—actions which would not have been taken under the peacetime law-enforcement paradigm. Others have to do with the acquisition of battlefield intelligence, activities which, in our view, are not subject to FISA’s jurisdiction—when that statute is properly construed—and could not have been subjected to statutory regulation a la FISA, even if Congress wanted to do so.

These executive branch activities are not, of course, explicitly delineated in the Constitution. They are, however, clearly the incidents/aspects of the president’s constitutional authority as commander-in-chief and chief executive. Incidentally, these incidents exist regardless of whether Congress has declared war. As commander-in-chief, presidents have attacked, captured and detained individuals as enemy combatants in the United States’ undeclared and declared wars—including and especially the Civil War.

With regard to such congressional authorizations for the use of force, whether the result is a “war” depends again on the level of violence involved. Simply because the Navy is authorized to assist the Coast Guard in interdicting drug smugglers does not create an armed conflict. However, if the U.S. armed forces were authorized to seek out and attack an organized entity (whether state or non-state) able and willing itself to engage in hostilities, a different result would obtain. Thus, if the United States were to engage the FARC [Revolutionary Armed Forces] in Colombia, then the laws of armed conflict would very likely apply. Basically, when the level of violence is sufficient for an armed conflict, then the laws and customs of war govern, regardless of whether the conflict is called a war or not—and this often depends on the political circumstances involved. There are still some who refer to the Vietnam and Korean Wars as “police actions,” but this does not change their character as wars. (Regarding the 1983 Hezbollah attack on the Marine barracks in Lebanon, that was certainly an act of war, and would have been a fully sufficient casus belli had the United States determined to pursue the matter. In the event, we withdrew.)
       
Last but not least, our view that, absent the applicability of the laws of war paradigm, the United States’ ability to use force would be significantly circumscribed is not a caricature. It is, in fact, an accurate description of how the law enforcement system would have operated in those circumstances. International law does not permit one state to use its armed forces (or police, for that matter) to invade the territory of another state to attack, kill or seize criminal defendants. Indeed, such conduct is correctly viewed as itself being an act of war, and is legally permissible only in the context of an armed conflict. Although the U.S. Supreme Court has ruled, in the context of a criminal trial, that it will not inquire into how a defendant is brought before the courts, this does not impact our international obligations.

By contrast, in the context of an armed conflict, the United States can harry its foes on land, air and the high seas, wherever they can be found—although it must still respect the rights of neutral states and cannot pursue its enemies into their territory without obtaining permission. The bottom line is that denying the U.S. full access to the law of war paradigm, in a situation in which it can be employed, severely handicaps our ability to prevent future attacks and, in the long run, puts us all in grave peril.

Apropos your concerns about the inevitable grim wartime abuses, hopefully, you would be reassured by the fact that, in this unfolding war, we have an unheard- of level of judicial engagement, complete with an unprecedented judicial review of the executive’s decision to classify aliens held outside the United States as unlawful enemy combatants.

Best regards,
David and Lee

 

FROM: Bruce Fein
TO: David Rivkin and Lee Casey
DATE: July 24, 2007


Dear David and Lee:

James Madison, father of the Constitution and president during the War Of 1812, warned: “No nation can preserve its freedom in the midst of continual warfare.”

Despite your protracted protestations to the contrary, your definition of war to embrace the post-9/11 conflict with international terrorism means permanent war, and ultimately the end of freedom.

You deny that you have accepted the “I know it when I see it” standard for the alleged war’s end. But your threshold for declaring an end is completely tautological: “That war will end-like the Second World War-when the United States has eliminated al-Qaida’s ability to engage in and project violence at a level that qualifies as an armed conflict, based upon the criteria described above.” In other words, the war will end when it fails to satisfy the definition of war. And as you agree, the war will not end with surrender on the USS Missouri in Tokyo Bay.

Let’s be realistic. What politician would be foolhardy enough to pronounce that al-Qaida is dead and has no capacity for a second edition of 9/11 or similar act of terrorism, especially because the alleged war imposes minimal sacrifices on the American people, unlike World War II? What president would renounce his enormous powers based on a state of war by stating al-Qaida has been incapacitated? You are unable to summon a single military or intelligence expert or otherwise who would project an estimated terminal point for the war against al-Qaida based on the definition of war you provide—give or take 50 years! Not a single voice in the Bush administration has even hazarded a guess. And neither have you. If the war against al-Qaida will not be permanent based on your definition, you should project an end point with reasons as opposed to naked conjecture. If you cannot or will not do so, as a practical matter you have conceded that the war will be eternal.

And what about the consequences? You insist that all the world and every square inch of the United States is a battlefield in the legal sense. That means the president may impose military law throughout the United States forever, and displace civilian rule. If all the United States is a battlefield, the president may intercept every communication without warrant as battlefield intelligence, he may break and enter homes to gather foreign intelligence, he may use the military to kill any United States inhabitant he declares might be an al-Qaida adherent. Military commissions that combine judge, jury and prosecutor would displace civilian courts. This is exactly what Madison meant when he warned that perpetual war and freedom were incompatible marriage partners.

The reason why wars against nations with geographical limits are different from a war against a tactic like international terrorism is precisely because the former place limits on the displacement of the rule of law and the alarming probability of “collateral damage” in the guise of lost civilian lives and property. War with no meaningful territorial boundaries means the supremacy of military over civilian law. And impartial observers have lamented that military music is to music what military justice is to justice. Collateral damage associated with war should not be lightly indulged. War invites moral or legal tragedies. That means the benchmarks for war should be exacting, whereas yours are anemic.

You question whether Great Britain could have declared war against the IRA. Do you remember that it was Bobby Sands and IRA icons who demanded to be treated as belligerents and detained as POWs? The British refused, and Bobby Sands starved himself to death in protest. Under your standard, President Bush could wage war against every organization listed as a foreign terrorist organization with animus towards the United States. What distinguishes Hezbollah from al-Qaida? Hezbollah’s 9/11 was the Marine barracks in Lebanon. It was implicated in Khobar Towers, and has declared an intent to take warfare to the United States mainland in defense of Iran.

Your reference to Ex parte Quirin is inapt. Not a single syllable in the Court’s opinion indicates President Franklin Roosevelt could have declared martial law and used military force throughout the United States because spies might be located there. Yet you are maintaining, mutatis mutandis, that President Bush is empowered to make the military supreme throughout the U.S. in the alleged war on international terrorism. The individual rights of American citizens are at the sufferance of the president, who may impose or withhold martial law at whim.

I never insinuated that suspending the Great Writ was the touchstone of war, but only that its constitutional triggers were informative of what the Founding Fathers considered sufficient danger to justify military as opposed to civilian measures. They intended that ambiguities be resolved against war because, as Madison sermonized, “Of all the enemies of true liberty, war is, perhaps, the most dreaded, because it comprises and develops the germ of every other.” I am eager to hear the Founding Fathers who were unworried by war’s danger to liberty and the republic.

You vastly underestimate the muscularity of civilian law enforcement. Jose Padilla was initially detained and interrogated as a material witness under the law. He later was labeled an enemy combatant, and when that label was dropped he was accused of providing material assistance and is now under prosecution in a federal civilian court. Further, the United States is permitted under the Constitution to employ force to capture and try persons outside the United States who are plotting to commit crimes against Americans-an example is General Pershing’s expedition in Mexico targeting Pancho Villa and his cohorts. The United States also legally forced down the Egyptian plane carrying the Achille Lauro terrorists. The Supreme Court has clearly said the Fourth Amendment does not apply abroad. And I do not think the Constitution would prohibit detaining aliens for up to 30 days, a period that could be extended by a FISA court order, for purposes of gathering intelligence against terrorists based on reasonable suspicion that the detainee possesses counterintelligence information.

I submit that your assertion or implication that international terrorism would generally evade detection or punishment absent a condition of “war” is counterfactual. Indicative are the cases of “American Taliban” John Walker Lindh, Padilla and David Hicks. American Taliban was and Padilla is being prosecuted in a civilian court for virtually the identical crime that occasioned Hicks’ prosecution before a military commission that combines judge, jury and prosecutor. What explains the differential treatment? Lindh received a 20-year sentence while Hicks received 9 months to be served in Australia.

It is not comforting that President Bush has not yet exercised the full extent of his claimed military authority. His claim of virtual omnipotence hangs like a sword of Damocles over every American, dampens dissent, and, if not repudiated, will lie around like a loaded weapon ready for use by a more malevolent or Napoleonic successor. We should take a lesson from our glorious ancestors. After protests by the American colonists, the Parliament repealed the obnoxious1765 Stamp Act. But Parliament accompanied the repeal with the Declaratory Act of 1766, which asserted the power to legislate for the colonies not only regarding taxation but in all cases whatsoever. The Declaratory Act spurred on the American Revolution because constituted a permanent threat of taxation without representation and more.

Regards,
Bruce

 

FROM: David Rivkin and Lee Casey
TO: Bruce Fein
DATE: July 25, 2007


Dear Bruce:

This has been a useful discussion, although we are ending it where we began—debating the same two fundamental first principle-level issues: (1) Is our international law position tantamount to embracing an Orwellian-style permanent war; and (2) constitutionally speaking, does the law of war paradigm adopted by President Bush after 9/11 unduly threaten liberty?

We certainly understand that no military or intelligence expert can today predict when al-Qaida will be defeated, and American politicians might be reluctant to declare an end to this war.

On the first point, the very same statement could have been made with equal vigor regarding every war in our history. It always is impossible to predict when a war will end. In the summer of 1918, for example, “experts” were predicting that U.S. forces would not have a decisive influence on the Western Front until well into 1919. Germany, of course, sought an armistice that November.

Quite aside from the ability to predict in advance when the war is over, you are obviously troubled by the possibility that the conflict with al-Qaida may last for a long time—as are we. Al-Qaida has proven to be a tough and resilient enemy. It has successfully tapped a reservoir of hostile feeling throughout many parts of the Muslim world against the United States and the Western Civilization it represents. That feeling may well have been exacerbated by U.S. policies since Sept. 11 (although we are skeptical of such claims), but it has indisputably existed for many decades—even centuries. The very process of “globalization,” which describes a phenomenon whereby modern, Western economic and cultural norms have spread around the world, has been seen as threatening the beliefs and power structure of many Muslim societies.

As a result, the struggle with al-Qaida may take many more years, even decades to win. This does not, however, make it any less of an armed conflict. Obviously, there have been many very long wars (the French Revolutionary and Napoleonic Wars lasted 25 years) in the past. Al-Qaida’s alternatives—at best the total withdrawal of American influence from the Middle East and at worst our acceptance of a medieval-style caliphate—are unacceptable. We have to resist, and the laws of war paradigm gives our government the authority and flexibility it needs to resist successfully.

We agree that wars are terrible in their execution and, often as not, in their results. Gen. William T. Sherman spoke the truth when he said, “All war is hell,” describing it as cruelty that cannot be refined. And war should never be lightly undertaken. The United States, however, did not initiate this conflict. We were repeatedly attacked by al-Qaida in the 1990s, including assaults on U.S. military targets, diplomatic missions and ordinary civilians overseas—all culminating in the Sept. 11 attacks at home. This threat can and should be met with the most force we can muster, which must include military force and the laws of war. The criminal justice system was not designed to meet this type of threat, and relying on its institutions would simply make the conflict longer and more costly for our own people. We just do not believe that this position makes sense.

On the second issue, we continue to believe that the civil liberty costs of a war paradigm are exaggerated. Liberty and order are balanced differently in wartime, but they are still balanced. The administration has not come close to undermining our fundamental freedoms, even if that were its object. (Indeed, we are aware of no evidence to suggest that the administration ever sought such an implausible goal.) The military has not been made supreme throughout the United States, nor has the administration claimed the right to impose martial law at a whim. By our count, exactly two individuals—out of 300 million some odd in the United States—have been designated as enemy combatants and turned over to military jurisdiction in this country. In both cases, the individuals involved, far from being innocent aid workers or shepherds, had been trained by al-Qaida to carry out violent actions. Al-Qaida’s other supporters and sympathizers within our borders have been dealt with as what they are: civilians. We believe that the real and proven danger of continuing terrorist attacks must here be weighed against the highly speculative possibility that the president actually will abuse his wartime authority. There is, in short, no army camped on Hounslow Heath, and George Bush is not going to make himself king.

The most difficult issues are, and remain, the detention and interrogation of enemy combatants captured overseas, and the interception of al-Qaida communications. The former is a standard aspect of all warfare—no war can be won if one side has no right to hold for the duration of hostilities captured enemy combatants—and involves, in this war, an unprecedented degree of judicial involvement. Simply put, no enemy combatant, lawful or unlawful, has ever gotten the degree of due process accorded to today’s Guantanamo detainees.

Regarding the interception of al-Qaida communications, and leaving aside the fine points of FISA-parsing and Fourth Amendment jurisprudence, we agree that privacy considerations are important. However, in this connection, we believe that the real objection to the NSA’s surveillance program has not been the lack of FISA orders (which, strictly speaking, are not Fourth Amendment warrants although they are treated as such), but a view of privacy as being an absolute and total public good, which pretty much can never be infringed. It is significant, in this regard, that criticism of the NSA program has not abated since the administration announced earlier this year that it had been brought within the FISA framework.

Finally, regarding the examples you offer of how the law enforcement paradigm can work, it is true that there have been a number of successful criminal prosecutions of al-Qaida personnel, including Zacarias Moussaoui and John Walker Lindh. We hope there are more, and that law enforcement can play a meaningful role in meeting al-Qaida’s challenge. However, our enemies number in the hundreds—and probably thousands—and are largely located in foreign countries. Capturing them, and obtaining and preserving admissible evidence sufficient to support criminal convictions in the civilian courts, is unrealistic if the goal is to protect the American people and eliminate this threat. Again, the criminal justice system was never designed to win a war or to meet violent attacks from overseas. It manages our own society’s deviants. We have to win a war.

Best regards,
David and Lee

 

FROM: Bruce Fein
TO: David Rivkin and Lee Casey
DATE: July 26, 2007


Dear David and Lee:

You have virtually conceded a permanent state of war with al-Qaida or international terrorism under your understanding of war. You also maintain that every square inch of the United States is a battlefield (as is the entire planet in your view) where the president may impose martial law and employ military force on American citizens. These observations, simpliciter, militate strongly against the correctness of your propositions. It seems highly unlikely that the Founding Fathers with their deep suspicion of the executive inclination to race into war precisely because of its grave threat to freedom, and checks and balances would have created the very low threshold you endorse for leaping from a state of civilian law and peace into military law and war.

It is true that no war begins with an automatic timetable for an endpoint. But all previous wars conducted by the United States with nation states or the Confederacy were expected to end within 10 years or less, whether by surrender, armistice or otherwise. Further, there was a consensus of what state of affairs would bring the war to an end, for example, the Appomattox Courthouse or Tokyo Bay surrenders. The alleged war with al-Qaida is different because there is no plausible endpoint, there is no consensus with what defeat for al-Qaida will look like, and, while the war endures, the entire United States is treated as an active battlefield with all its grim consequences for civil law and innocent civilians. As Mr. Bumble in Oliver Twist might have said, if the law does not follow life as opposed to hypotheticals, the law is a ass, a idiot.

Your counterfactual assertion that “the administration has not come close to undermining our fundamental freedoms, even if that were its object,” can be demonstrated by the following inexhaustive list of President Bush’s claims and actions:

1. Detaining American citizens indefinitely as enemy combatants on his say-so alone without access to a lawyer and using secret evidence, and detaining non-citizens under the same conditions but denied the Great Writ of habeas corpus to challenge the factual and legal foundations for their detentions.

2. Establishing military commissions for the trial of war crimes that combine judge, jury and prosecutor.

3. Directing the National Security Agency to target American citizens on American soil for electronic surveillance without warrants and without minimization requirements to avoid an uncontrolled database that could be employed to intimidate or blackmail in violation of the Foreign Intelligence Surveillance Act.

4. Invoking executive privilege to deny Congress and the American people knowledge or oversight of secret spying programs that have historically been abused; and the legal advice given the president when the spying programs were initiated.

5. Claiming power to break and enter homes, open mail, kidnap or torture for the purpose of gathering foreign intelligence.

6. Authorizing the CIA to employ brutal methods to interrogate detainees to for the purpose of gathering intelligence in violation of the Geneva Convention.

7. By an executive order issued on July 17, 2007, authorize a financial death penalty on an individual he asserts poses a “significant risk” of committing an act of violence whose effect may undermine political reform or reconstruction in Iraq. The subject of the death penalty is denied notice or an opportunity to respond.

8. Kidnapping, imprisoning and torturing abroad persons the president declares are criminals or terrorists.

9. Asserting that every square inch of the United States is an active battlefield where military law can supersede civilian rule.

10. Listing persons or organizations as terrorists based on highly unreliable secret evidence.

With regard to the NSA’s illegal warrantless electronic surveillance program, I would wager millions of Americans have had their privacy violated and their communications chilled or curtailed. Other spy programs still remain secret, and the scope of inevitable abuses remains unknown. 

You dismiss the gravity of President Bush’s claims of virtual omnipotence by pointing out that in many cases he has desisted from exerting his maximum powers. But the Founding Fathers did not intend and the Constitution does not make our rights turn on the sufferance of a benevolent president or king. The Declaration of Independence declares as a self-evident truth that all men are endowed by the creator with certain inalienable rights that do not depend on presidential indulgence. In contrast, President Bush’s chilling legal claims hang like a sword of Damocles over every American. They seek to establish precedents that will lie around like loaded weapons ready for use by any successor to destroy his detractors or political rivals.

You errantly content that defenders of FISA oppose any kind of surveillance in the name of absolute privacy. The fact is that FISA applies to less than 1 percent of the NSA’s spying because it has no application to NSA’s targeting of persons abroad. They all lack any reasonable expectation of privacy protected by the Constitution. Moreover, FISA’s threshold for obtaining a spying warrant on American citizens in America is modest. Over 29 years, more than 20,000 warrants have been granted, and a handful denied. And when Congress proposed to relax the threshold in July 2002, President Bush opposed the relaxation as unnecessary and constitutionally dubious.

You seem to be partially at war with yourselves. On the one hand, you suggest the war against al-Qaida could end in a caliphate in the United States, i.e., the war is a life struggle. On the other hand, you argue that the president has seldom exercised war powers, for example, detaining citizens as enemy combatants or employing military commissions.

You misread the signature of the United States by insinuating that 9/11 endowed the president with whatever powers he believes will diminish the threat of international terrorism. That is profoundly wrong. The Constitution abhors absolutes. The whole meaning of the Fourth Amendment is that the nation has chosen to take risks necessary for freedom to flourish. The president could reduce the risk of a terrorist incident by imprisoning every American. But that would be the end of the United States and its reason for being. What I find frightening in your reasoning is the absence of any limiting principle for the assertion of executive power in a post-9/11 environment.

The United States will crush terrorism by setting a standard in fighting and defending to which the wise and honest may repair. We should be dedicated to making the nation’s response to 9/11 the Constitution’s finest hour.

Best,
Bruce