The War on Terror Is Over
- From: jose el fontanero <josefsoplar@xxxxxxxxx>
- Date: Thu, 27 Aug 2009 08:53:02 -0700 (PDT)
The War on Terror Is Over
Lawyers are about to smother the war on terror.
By DANIEL HENNINGER..ArticleComments (91).
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Shakespeare wrote, “The first thing we do, let’s kill all the
lawyers.” As we know, that didn’t happen. Four hundred years later,
they’re killing us with the smothering pillow of hyper-proceduralism.
Now the lawyers are about to smother the war on terror.
This Monday, the same day that Attorney General Eric Holder named a
special prosecutor to investigate persons who conducted the CIA's
interrogations in the war on terror, Scotland's Justice Minister Kenny
MacAskill stood before his parliament and gave this defense for
releasing convicted Lockerbie bomber Abdel Basset Ali Megrahi:
"It was not based on political, diplomatic or economic
considerations. . . . My decision was made following due process, and
according to the law of Scotland. I stand by the law and values of
Faced with a similarly fastidious assertion of the law's triumphal
self-regard in "Oliver Twist," Mr. Bumble replied: "If the law
supposed that, the law is a ass—a idiot." Mr. Bumble added something
acutely relevant to what is happening to the war on terror: "The worst
I wish the law," said Mr. Bumble, "is that his eye may be opened by
The experience of a world beset by terror eludes the eyes of a Kenny
MacAskill, Eric Holder and others in the Obama administration. The
rest of us may suffer for it.
In a May speech at the National Archives, President Obama, mirroring
Kenny MacAskill's remarks, said we had to "update our institutions" to
deal with terrorism but "do so with an abiding confidence in the rule
of law and due process."
That "update" is upon us. The smothering pillows have arrived.
Attorney General Holder named Connecticut prosecutor John Durham to
conduct an investigation into whether interrogations by CIA employees
warrant a criminal inquiry. It has been shown repeatedly the past 25
years that an office of independent counsel or special prosecutor
nearly always puts in motion an Inspector Javert-like hunt for an
Mr. Holder's justification, that his own reading of the "available
facts" gave him no choice, is close to a preordained conclusion that
Mr. Durham will cite one of these CIA guys for criminal prosecution.
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David Klein .
The day of Mr. Holder's announcement, CIA Director Leon Panetta said
his agency received "multiple written assurances its methods were
lawful." It's now clear that even playing by the rules cannot stop
erosion by legal challenge.
That day also brought the release of CIA Inspector General John
Helgerson's 2004 report on the agency's detention and interrogation of
terror suspects. Both sides to this argument say the report supports
their view of the CIA. No matter. What the release of the Helgerson
report mainly does is open the dams on detainee lawsuits.
This litigation nightmare, together with the chilling effect of the
special prosecutor's potential indictments, has as its goal making the
price of aggressive interrogation too high under any circumstance,
including a one-hour-bomb scenario.
To supervise future interrogations, the administration is creating
something called a High Value Detainee Interrogation Group.
Interrogation techniques will be limited to those in the Army Field
Manual or that are "noncoercive," which suggests more constrained than
a big-city police department. Authority is being moved from the CIA to
This means that the class of person who blows up skyscrapers, American
embassies or the USS Cole would spend less time under a bare light
bulb than a domestic robbery suspect. The Los Angeles Times reported
in May that the goal of a proposed administration "global justice
initiative" would be to get all terror suspects into a U.S. or foreign
Eric Holder cited the Justice Department's Office of Legal
Responsibility as influencing his decision to proceed with a CIA
special prosecutor. This is the legal office that is expected to
release its long-awaited report on whether former Bush Justice lawyers
John Yoo, Jay Bybee and Steven Bradbury should be cited for misconduct
for providing the CIA with legal opinions about these interrogations.
If, as expected, the OPR cites the lawyers, legal groups will try to
disbar them. After that, no lawyer will go near the war on terror.
Individually, some of this may be arguable. In toto, it's a death
sentence for an effective war on terror. It makes what's left of the
war—telephone wiretaps or monitoring money transfers—vulnerable to a
steady stream of congressional and legal objection. That lets the
Obama administration evade political responsibility by letting others
wind down the war on terror.
The message of Scotland's release and the Holder decision is that the
will born in the wake of 9/11 is waning. The war on terror is being
downgraded to not much more than tough talk. Al Qaeda, the Taliban and
the Iranians, not yet converts to the West's caricature of its own
legal traditions, will take note. In time, they will be back. The
second war on terror is in the future.
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