July 7, 2008 | National Review Online

Answering Peter Robinson

Peter, over the weekend I watched your Uncommon Knowledge interview with Philip Bobbit — parts beyond what you asked me to take a look at.  Prof. Bobbit is plainly a thoughtful guy but, alas, there is much he says with which to disagree.

I don’t think you let Bobbit of the hook too easily.  In fact, I think you wrung valuable concessions from him. 

Bobbit starts from the premise that the purpose of government is to protect rights.  That is a trite assertion, though a common one.  Rights, after all, clash — individual rights versus community rights, the rights of the body politic versus the rights of those outside our body politic, etc.  Saying, as Bobbit does, that the Declaration of Independence frames the government’s purpose as the protection of rights and that the Constitution created a strong government for that purpose tells us neither how we should resolve these clashes nor how government should do the protecting involved (by legal processes?  by force of arms?  by some combination?)

The implication of his objection to detentions at Guantanamo Bay is that Bobbit does not distinguish between all these rights — that the right of a suspected alien enemy combatant to liberty is on a par with the right of a citizen to liberty, as well as on a par with the right of the national community to protect itself during wartime by, for example, refraining from disclosing to the combatant information that would ordinarily be disclosed at trial (for the greater good of protecting national defense secrets and the methods and sources of intelligence).  But that has never been the law.  In Moyer v. Peabody (1909), for example, Justice Holmes wrote for a unanimous Supreme Court:  “When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.  Public danger warrants the substitution of executive process for judicial process.”  (Emphasis added.)

It simply is not so that we turn to law to respond to every contingency, particularly when the life of the state — i.e., the rights of the community, not just individuals, to life and liberty — is threatened.  Bobbit, in fact, ends up conceding to you the insufficiency of law in two important particulars.

First, after complaining about Gitmo, he acknowledges your point that it would have been fine for President Bush to keep holding detainees there indefinitely while a blue ribbon panel of distinguished jurists sorted out what due process for detention should look like.  This implicitly affirms the rectitude of detention — and why not?  The laws of war have permitted detention of enemy combatants since before there was a United States, and the Supreme Court upheld such detention even for an American citizen as late as 2004 in the Hamdi case.  (And, it’s worth noting, the recent Boumediene case did not call for release of the combatants — it’s an argument about the process for holding them.) 

On this score, Bobbit’s problem seems to be that Bush tried to impose the rules unilaterally, but I don’t suppose Bobbit thinks this is really true.  Bush, a non-lawyer, first delegated the task to experts within the executive branch (who drew up a system that provided combatants with many more rights than combatants had had in previous conflicts), and later went to Congress (which affirmed that system and provided civilian judicial review for the first time in history).  I think it would have been preferable to set up a new court system rather than pigeon-hole the war on terror into the military or criminal-justice paradigm, but I come at that problem with the presumption that the indefinite detention of combatants in wartime is entirely legitimate.  Bobbit seemed at first to be saying it wasn’t, but when you gave your example, he conceded it was.

Second, right after Prof. Bobbit said we should always be creating new law when we have to operate in a new security environment, you hit him with the ticking-bomb scenario … to which his response was, gee, turns out we don’t need law at all.  That is, he’s content to torture (not just waterboarding but actual torture) but keep the torture illegal, comforted in the assumption that no jury in the country would convict.  This position (which is a respectable position, held by people like Judge Richard Posner) seems to me one of these airy intellectual conceits that is totally divorced from reality. 

First, you are putting the burden on an interrogator to violate the law in the hope that we’ll all be understanding afterwards.  Why not tell him, with appropriate, accountable guidelines in place, that he has license to do something almost everyone agrees would be necessary to protect the life of the state?  That is what law is supposed to do.  Second, even as we speak the Left is chomping at the bit for the day when the Obama Justice Department indicts our interrogators for having waterboarded high-ranking al Qaeda members who ended up giving us life-saving intelligence.  Given that, what would make any interrogator today think he’d not be prosecuted for doing what Bobbit says should be done in the ticking bomb case?

But all that aside, Bobbit is conceding that there are times of crisis when executive action is necessary to protect rights, regardless of legal processes.  That is exactly the system we have always had.  Bobbit described as a “deeply misleading paradigm” the notion that there is a pendulum swing from individual rights to government power depending on whether we are in a state of tranquility or emergency.  But that is exactly how it is, was, and ever shall be.  It is why we call it due process — the legal process that is required under the circumstances.

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