Academic journal article Harvard Journal of Law & Public Policy

American Exceptionalism, the War on Terror, and the Rule of Law in the Islamic World

Academic journal article Harvard Journal of Law & Public Policy

American Exceptionalism, the War on Terror, and the Rule of Law in the Islamic World

Article excerpt

When some New York Law School students first decided to organize a Federalist Society chapter many years ago, they actually asked me to be their faculty advisor. Some will say that this shows how hard it is to find a conservative law professor. But what it really shows is that these New York Law School students were honoring this organization's libertarian founding principles. Those principles are reflected in the opening words of the Federalist Society's mission statement: "The Federalist Society ... is founded on the principle[] that the state exists to preserve freedom.... The Society seeks ... [to reorder] priorities within the legal system to place a premium on individual liberty...." (1) Also relevant to this Essay's topic, the mission statement declares that "the separation of governmental powers is central to our Constitution." (2) Unfortunately, the "War on Terror" (3) has violated these fundamental precepts of the Federalist Society in numerous ways, with devastating consequences for liberty, democracy, and national security alike.

For details, refer to the website of a certain organization that has been promoting the libertarian aspect of the Federalist Society's agenda for almost ninety years now. The American Civil Liberties Union has been working closely with many national security experts and other diverse allies in our campaign to keep our great country both "Safe and Free." (4)

In contrast, many post-9/11 measures have been the worst of both worlds: They undermine human rights, both at home and around the world, and they do not help the United States counter terrorism. Lifelong military and intelligence officials have said that a fatal flaw in the "War on Terror" is that the United States is losing the moral authority and credibility that is essential in a war of ideas and values.

Let me cite just two examples. General Charles Krulak, Commandant of the U.S. Marine Corps, and Joseph Hoar, a former Commander-in-Chief of U.S. Central Command, recently wrote:

   This war will be won or lost not on the battlefield but in the
   minds of potential supporters who have not yet thrown in their
   lot with the enemy. If we forfeit our values by signaling that
   they are negotiable in situations of grave or imminent danger,
   we drive those undecideds into the arms of the enemy. This
   way lies defeat, and we are well down the road to it. (5)

These two military leaders strongly denounced, among other policies, secret CIA interrogation programs that use "torture techniques euphemistically called 'water-boarding,' 'sensory deprivation,' 'sleep deprivation' and 'stress positions'--conduct we used to call war crimes." (6) As we learned in October 2007, the Justice Department has continued to use secret memos to authorize painful physical and psychological tactics, (7) carrying out policies that had already triggered courageous internal criticism by even committed conservative Republicans who otherwise support the Administration's policies, including Professor Jack Goldsmith. (8) This is just the latest in a series of revelations about various secret programs allegedly justified by President Bush's apparently limitless conception of his "Commander-in-Chief" power. (9)

Let me remind you of some earlier revelations in this vein, about which we learned thanks to intrepid investigative reporters and courageous and principled whistleblowers inside the government and military. The earlier revelations include the CIA secretly detaining and "rendering" prisoners to countries where they were tortured; (10) the FBI and Department of Defense spying on individuals and groups who were peacefully expressing their views on issues including the war in Iraq, the environment, and animals' rights; (11) the misuse of the intrusive National Security Letter power, as critiqued by the Justice Department's own Inspector General; (12) and the National Security Agency's surveillance of the phone and online communications of innocent American citizens right here in the United States without court-approved warrants. …

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