Civil Liberties and Constitutional Rights

Civil Libertarians Have Tolerated Perpetual, If Sanitary, War

By Jack Goldsmith
Tuesday, October 6, 2015, 8:30 AM

My colleague Sam Moyn has a terrific essay at Dissent, the main thesis of which is the title of this post. He argues that progressives in the United States have since 9/11 prioritized civil liberties over opposition to war, and in the process have legitimized the latter.

The focus on civil liberties singles out certain issues rather than others, and risks making the strategy the goal, converting means into ends. Even if it is just a ranking of priorities, focusing on one burning problem configures our possibilities and intervenes in a particular way. I think it is now fair to voice the worry that, in its post–9/11 form, our civil libertarian response has accompanied the rise of “hygienic war.” Endless, though clean, war, is one of the main legacies of our time.

Not only have civil libertarians generally failed to connect with broader antiwar politics—such as by failing to join opposition to the Iraq war in 2003—but they have also tolerated the normalization of perpetual, if more sanitary, war. American liberalism was once haunted by its participation in, indeed sometimes escalation of, the Cold War, most memorably during the Vietnam disaster. In the long view, it is worth asking whether the contribution of an otherwise upright culture of civil liberties to the rise of hygienic war is a parallel to—even a continuation of—that mistake. …

Oppositional to the state in the short term, civil libertarianism can function to grant the state legitimacy in the long term by helping scrub wars of their outrageous excesses—as if those excesses were the main problem. …

[W]hen civil libertarians engage military actors who want to hew to legal codes, it is not necessarily to undermine national security or the surveillance state; in fact, it is to help the military realize its mission.

Sam offers two reasons why “civil libertarians have helped us reach national consensus on making intermittent dirty war a thing of the past, but endless clean war a thing of the present and future.” First, he suggests, civil libertarianism was a second-best strategy just after 9/11, when the nation widely supported war. “If war could not be stopped, it could be made clean.” Second, when Barack Obama became President and embraced the war as his own, civil libertarians celebrated his “tweaks to offensive practices” but, because he was a political ally, failed to challenge the underlying war.

I think this is all generally right, and indeed I made complementary points (coming from a very different perspective than Sam) in Chapter 6 of Power and Constraint (reproduced in modified form here.) Chapter 6 was built around the plight of Michael Ratner, President Emeritus of the Center for Constitutional Rights, an organization that led the civil liberties charge against the war on terrorism (and that once focused much more on opposing war altogether). One thesis of the Chapter was that Ratner’s many achievements on the civil liberties front in the war on terrorism “came with a large price,” since “[p]aradoxically, and to Ratner’s regret, his victories in court and elsewhere helped Barack Obama to legitimate counterterrorism policies that Ratner sought to end.” I wrote:

The legitimation and continuance of these unusual executive powers are enormous disappointments to Michael Ratner and his colleagues. The lawsuits and activist campaigns by these men and women accomplished much in the decade after 9/ 11, much more than they anticipated at the beginning. They built up a global social movement of activists, lawyers, foreign governments, and the media, to bring habeas corpus rights to GTMO and to pressure the government to release all but the most dangerous prisoners there. “Obviously, getting six or seven hundred people out of Guantanamo out of the nine hundred was a huge accomplishment,” notes Ratner. Working in the ecology of transparency, Ratner and his colleagues, as Ratner himself said, “have also taken on what I consider the most egregious aspects of what I call the national security state since 9/ 11, and made them public debating issues.” By making the issues matters of public debate, they ensured that the courts and Congress and the American people had to engage in the issues, and to address them.

But the bitter reality for Ratner and his colleagues in the GTMO Bar is that the courts, Congress, and the American people do not share their outlook, and the United States is in a place at the end of 2011 where Ratner desperately did not want it to be. The GTMO Bar won landmark Supreme Court decisions on due process for detainees, on habeas corpus, and on the limits of presidential power over military commissions. And yet stepping back from these battles, Ratner believes that he and his colleagues lost the war. “We lost on the enemy combatant issue, and the definition. We lost on the preventive detention issue, more or less. We lost on the military commission issue, more or less.” They lost on these issues because while the courts and Congress imposed significant constraints on these traditional practices by the Commander in Chief, they also affirmed the legitimacy of the practices in the round. The efforts of the other branches of the government placed these practices on a much firmer foundation than they were during the early unilateralist era of George W. Bush. The foundation became firmer yet because it was embraced, albeit grudgingly, by the administration of Barack Obama. “My problem is that when you have a Democrat doing it as well as a Republican, . . . both the good and the bad becomes embedded in the rule of law,” says Ratner. This is a problem for Ratner because he thinks that military detention, military commissions, and many other wartime prerogatives of the Commander in Chief are unnecessary, immoral, or illegal. But for those who disagree with Ratner on these points— for those who believe that the terrorist threat remains real and scary, and that the nation needs a Commander in Chief empowered to meet the threat in unusual ways— embedding these presidential prerogatives in the rule of law is an enormous blessing. It is a blessing, ironically, for which the nation has Michael Ratner and his colleagues to thank.