The 9th Circuit judicial conference wrapped up yesterday. Hundreds of lawyers spent the last several days discussing this and that in Maui, and finished up with a speech and some Q&A from Justice Kennedy. He had a lot of different things to say, most of which are unremarkable (such as the Court will be “different” somehow with Stevens gone and Kagan there). But one thing he said made us sit up and pay attention.
At a panel discussion earlier in the week, the conferees had decided that most terrorism cases ought to be tried in civilian courts, and not in military tribunals. In his speech, Kennedy said he agreed. He said that the use of military tribunals was an “attack on the rule of law,” and that it has failed. “Article III courts are quite capable of trying these terrorist cases.”
He completely missed the point. The courts have nothing to do with most terrorism, acts of warfare launched from abroad. But Kennedy’s been in the courts for so long, that that’s his whole perspective. Not only does he think the courts should try individuals suspected of engaging in terrorist acts, and fighting against the U.S. military on behalf of the terrorists, but he thinks the contrary position is an attack on the rule of law. Law, he fails to realize, doesn’t enter into it.
Well, no, that’s not entirely correct. Law enters into it insofar as our rule of law and sense of fair play become weapons used by enemies without such civilized ways. And he fails to realize that his attitude is precisely that which our enemies rely on. His comments play right into their hands.
As we’ve mentioned before, most terrorism is an act of war, not a home-grown crime. Criminal procedure and warfare are two entirely different things. The courts, criminal law and law enforcement are not in the business of proactively preventing violence from taking place; they only react, after the fact. Law enforcement tracks down whodunit. The law prescribes the rules that law enforcement must follow, and protects the rights of individuals who are suspected or charged with crimes. It makes no sense to constrain the gathering of military intelligence and the carrying out of warfare by making it comply with the rules designed to protect the rights of criminal defendants. It makes no sense to get the courts involved in the first place.
When we were a kid, we lived for a few years in Saudi Arabia. We arrived a few months before the Grand Mosque in Mecca was seized and the American hostages were taken in Iran. We were there for the start of the Iran-Iraq war, the shooting of the Pope, the murder of Sadat. We left soon after the Hama massacre, Israel’s withdrawal from Sinai, the death of King Khalid, and the arrival of U.S. Marines in Lebanon. It was an eventful place to spend one’s formative years. One of the older kids we knew there desperately and sincerely wanted to become a terrorist. We have no idea why — he was from a good background and neither poor nor stupid. Let’s say he did. He’d be in his mid-40s now. If he’s over in Afghanistan, he might be managing part of the fight by al-Qaeda or Taliban groups against the U.S. He might be a great source of intelligence if he’s captured. He might be someone they’d never want to release back into the world. What to do?
Let’s say he’s captured in a way that would totally have violated his Fourth Amendment rights if it had been a civilian arrest. Let’s say everything known about him comes from sources it would be insane to reveal. Let’s say he’s not bloody likely to disclose any of his own knowledge voluntarily. If he’s to be tried in a civilian court, he’s going to go free, and no useful intelligence will be gotten. If the goal is to punish him for his crimes, then the military and our intelligence services will have to dramatically reduce their effectiveness in order to protect rights he doesn’t even possess. If the goal is instead to prosecute the war, gather the necessary intelligence to do so effectively, disrupt the enemy’s command and control, and prevent this guy from fighting again, then using civilian courts would frustrate all of that.
It’s bad enough that seasoned commanders in the field now have to have some wet-behind-the-ears JAG lawyer okaying practically every combat decision, to comport with international law that probably doesn’t even apply in the first place. To add the constraints of our constitutional protections and the often convoluted jurisprudence that goes with it… That’s not how wars are won.
Some terrorist acts, a small minority, are perfectly appropriate to be prosecuted in the civilian courts. These are acts, not by an organized enemy, but by one-off individuals. Timothy McVeigh, or the Unabomber, or the D.C. sniper. Serial killers and mass murderers. They may have had a political cause underlying their actions, but they’re not warfare. The police can track down whodunit, follow the rules, and the bad guy gets punished for what he done.
But that’s not what most Americans think of when they think of terrorism. Terrorism means large organized groups of people who plan and commit acts of war, for the same reasons that any other act of war is committed. Terrorism isn’t one guy losing his shit and shooting up a school. Terrorism is a guy who’s been launched by Hamas or al-Qaeda or Farc, trained by them, armed and supported by them, to commit violence and mayhem on their behalf. Terrorism is equivalent to war by a non-governmental organization.
Now, war certainly can be fought in the courts. The islamists are actually getting quite adept at “lawfare,” as we’ve also discussed elsewhere (and a little bit here, too). It’s a neat trick, whereby those who do not have a rule of law, and despise those countries with a rule of law, nevertheless use that very law to achieve their policy ends.
Kennedy’s comments, unfortunately, play right into their hands. This is precisely the attitude that islamist lawfare relies upon.
It’s hard to avoid that attitude, of course. We’re civilized, after all. We do value the rule of law. We do expect all of us to be subject to the law, no matter who we are. It’s what separates us from tyrrany and despotism. It’s what ensures our cherished freedoms and liberties and opportunities and protections. It’s what makes us civilized.
Terrorist organizations and their supporters take advantage of that. They use our courts and our laws and our protections as a weapon against us. (To his credit, Obama shut down a little of that last week, by signing the libel tourism law, and that’s a good start.) They call it “legal jihad” or “soft jihad.” They use lawsuits to shut down opposition. They cynically take advantage of their opponents’ sense of justice and fair play, to win concessions and control their message.
Kennedy’s comments can only give encouragement to such an enemy.