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It’s lawfare, and we’re losing

Posted by Thomas Nephew on 3rd January 2012

As is well known, President Obama has added his signature to another civil liberties setback – the National Defense Authorization Act (NDAA) and its provisions for indefinite military detention of persons accused of terrorism.  Much has been written about what’s wrong with the NDAA, and I won’t rehearse those arguments here.*

Instead, I want to just observe Benjamin Wittes’ post “In Praise of the Signing Statement” in his “Lawfare” blog, in which he pats Obama on the head for his signing statement — and after a failing grade last year:

…this year’s signing statement, which Steve posted the other day, seems to me a far more creditable effort. [...]  Maybe it’s just that I’m feeling mellow following a week in Maui, but I’m not inclined to criticize the administration over its handling of this one.

This kind of condescending approval might seem like sheer arrogance to most, but Wittes’ writings and opinions unfortunately command wide attention.  The “Lawfare” blog he maintains with former Bush OLC chief Jack Goldsmith and others more or less serves as the blog of the Bush/Obama legal consensus legal policies with respect to counterterrorism (occasional forays by guest bloggers notwithstanding) — the negative pole to positive ones like Glenn Greenwald.

In Lawfare’s first blog entry, Wittes attempts to put his own spin on what I think is the discreditable concept of “lawfare”:

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others.

The first option is the common one, the second is Wittes’ admittedly editorial comment — no one but him thinks of ‘lawfare’ this way, but as in much else, Wittes may succeed in blurring the meaning of a word to his advantage.

And that’s the project in a nutshell.  To me, a key secondary attribute of ‘lawfare’ is embodied in NDAA’s detention provisions.  That attribute is purposeful confusion and vagueness — plausible deniability — about what the laws are and how they will be enforced.  Learned folk can debate whether the new law threatens indefinite detention of Americans despite — or because of — passages unctuously proclaiming “no requirement” to do so with respect to Section X, yet not for Section W.  They can argue whether language asserting that ‘nothing in any of this changes existing US law’ is a reassuring affirmation of the Bill of Rights, or an ominous reference to the past decade’s steadily growing power of the executive branch and supine legislative and judicial branches.

They miss the point; the vagueness is the point.  What a President O nobly forswears (or claims to),  a President R or G will gladly seize, and both will point to the NDAA’s language in support.  Instead of law — bright lines protecting our liberties — we get lawfare: blurry lines keeping all of President X’s options open… and abrogating habeas corpus by misdirection.

To me, that’s the opposite of what “the law” should do — or what a government charged with upholding the Constitution should do. But — unlike Mr. Wittes’ views, I’m afraid — my views don’t matter much.  The usual way this kind of ‘lawfare’ manifests is in secrecy about the very nature of laws or their enforcement, but it occasionally becomes plainer (in a manner of speaking, like a visible smokescreen instead of simple cover of darkness) when statutes like NDAA’s detention provisions are debated and passed.

Wittes to the contrary, the things that are actually depressing about civil liberties debates are that he’s depressed about them – and that he’s winning them all the same.  And that he and his allies are winning them with the kind of ‘angels dancing on the head of a pin’ arguments designed to charm yet another arrogant man, working in an oval office across town. Perhaps his ‘praise’ was a misstep in that respect; one can only hope, though it’s too late to do any good with the NDAA.

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* For my part, I’ve protested  against the NDAA a couple of times at an Obama campaign office in Maryland, and have appended a “further reading” list to the end of one account.

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