Lawfare: 10th Anniversary Project

Mea Culpa: Joseph Margulies

By Robert Chesney
Tuesday, September 6, 2011, 10:08 AM

Joseph Margulies is a professor at Northwestern Law School who serves as the associate director of the MacArthur Justice Center.  Joseph served as counsel of record on behalf of the detainees in Rasul and Munaf, and currently is counsel to Abu Zubaydah.  Joseph also is the author of the book Guantanamo and the Abuse of Presidential Power.  He writes in with the following contribution to Lawfare’s 9/11 10th Anniversary Project:

I am grateful for the opportunity to reflect on my myriad misjudgments since November 2001, when I first got involved in post-9/11 litigation.  Assessments like this come easily to me, since I am often accused of being preternaturally dour.  Jane Mayer says I am gloomy; her view is widely shared.  I once told my relentlessly optimistic namesake Peter Margulies (no relation) that adding the content of my glass to his would still not fill the container, even though his is always half-full.

Stated at the level of greatest abstraction, I did not appreciate how quickly, and how thoroughly, September 11 would become a constructed symbol in American life.  By that I mean I did not anticipate the extent to which the nature of public understanding and political discourse would be driven by constructed representations of reality.  I also did not anticipate how much these representations would hew to political and partisan divisions instead of anything remotely related to the actual state of affairs.  This was a gross miscalculation. 

Ordinarily all of this would require some elaboration but I have promised the sponsors of this affair that I would be brief.  It is enough to say that one cannot utter any of the words that have come to define the post-9/11 era—terror, Islam, Guantanamo, enhanced interrogations, jihad, military commissions, and many others—without immediately discovering the extent to which September 11 has become a collection of iconic symbols, judged most for their potency in marking political territory.  Today, reality is far less important than what it has been constructed to be.

I have read the mea culpas of Brothers Chesney and Wittes and envy the certainty they seem to have achieved.  Bobby has come to accept the wisdom (or at least the propriety) of Rasul, which is gratifying.  Ben has reconciled himself to military and civilian trials, though he thinks the latter should predominate.  But I continue to wrestle with the implications of my misjudgment.  On the one hand, I am exceedingly skeptical of the political process and do not believe in the present environment that it can be trusted to produce a rational or humane policy.  That is my greatest objection to Ben’s oft-expressed faith in Congress; it may provide a source of constitutional legitimacy, but only because we define it to be so.  As far as I can tell, it has nothing else to commend it, as the recent kerfuffle over the debt ceiling confirms.

On the other hand, I recognize that the logical response to reservations about an overly politicized process is a retreat into executive discretion and secrecy.  That’s certainly not a good thing.  This is what accounts for the determination by the Obama Administration to contrive a facially foolish interpretation of the War Powers Resolution.  Harold Koh knows better.  And for all the breathless prattle about “lawfare”—criticizing academics and litigators for supposedly using the law to interfere with the war on terror (which, I should say, is not the way it is used by this blog)—the fact is that social constructions of reality influence the judiciary nearly as much as they do every other branch of government.  No careful student of American legal history credibly suggests otherwise.  Since September 11, the judiciary has more abetted the executive than fettered it.

I don’t know where this leaves us, and as usual, I am not hopeful except over the very long term.  But I suppose I will continue with my writing and litigating, making more misjudgments as I go.