Lawfare’s Soft Targets

The failure of the Bush administration to reverse its predecessors’ drastic shrinkage of our armed services is notorious.  Yet, because our fighters are the greatest in human history, the most pernicious fall-out of our parsimony remains unnoticed.  The peerless but thinly stretched U.S. military, it turns out, has an Achilles’ heel:  it cannot combat lawfare waged against the private partners on whom it is ever more dependent.

That fact has escaped the attention of most Americans, who revere their military but give scant thought to the civilian partners on whom it relies .  Our straits, though, are dead-center in the cross-hairs of a fifth column bent on securing American defeat in the ongoing war against radical Islam.

Everyone acknowledges that the war will be a long slog.  Are we ready for it?  Our resources and legal culture scream the answer:  No.

In the Korean and Vietnam wars, force size hovered around 3.5 million.  At the close of the Reagan administration, after a significant build-up from the Carter malaise, it stood at about 2.1 million.  But in the ensuing decade, according to a Congressional Research Service study, it was slashed by a third, to 1.4 million.  Army divisions were nearly halved (from 18 to 10).  In essence, the Clinton administration “reinvented government” by using military cuts to obscure its expansion of the federal bureaucracy.

The 9/11 attacks triggered a military response to global jihadism.  Yet, force size has not been materially increased.  In fact, the status quo endures even as our defense structure patently defies our defense strategy.  A lean, mean fighting machine reliant on smart-technology to do more with fewer warriors may be the wave of the future.  But we are not in the future.  Here and now, the policy is counter-insurgency and nation-building.  Whatever its wisdom, such a policy indisputably calls for higher numbers of well-trained people to apply to each part of the war’s problems.

But we don’t have them.  As a result, it has become necessary to turn with greater regularity and urgency to private actors:  noncombatants assuming critical support operations and thus freeing up military personnel who would otherwise bear those burdens.

Unfortunately, while terrorists are no match for the U.S. armed forces, private industry is overmatched by the U.S. courts.  In light of lawfare’s emergence as the weapon of choice for today’s most determined dissenters, the legal attacks on the military’s (and intelligence community’s) partners has reached a crisis.

The collection of foreign intelligence is our most precious asset in a global war against the transcontinental tentacles of secretive jihadist networks.  We can’t vanquish this enemy by conquering a territory or starve it by seizing a treasure.  Terrorists, moreover, insinuate themselves in civilian populations, making strikes against them prohibitive no matter the gravity of the provocation — we were no more going to bomb Hamburg or Madrid after 9/11 than San Diego, Sarasota, or the dozens of other American cities and towns where the attack was planned, prepared and perpetrated.

At best, victory will be slow in coming.  There simply is no easily foreseeable war-ending scenario.  “Victory” means substantially degrading radical Islam’s capacity to project power.  That can be accomplished only by identifying who the terrorists are, where their strongholds can be found, and what targets they plan to hit.  To do that, we must have intelligence—no amount of sheer military might will compensate for a dearth of information.

The intelligence we most need comes from two sources:  surveillance and interrogations.  Today, we can’t get it without assistance from American industry.

Near-total reliance on private actors is unavoidable when it comes to electronic surveillance.  And it should be.  Signals intelligence, the real-time information derived from enemy communications, involves penetrating an unprecedented variety of communications that transmit at warp speed and confound yesterday’s decryption technology.  To access and decipher them, and to maintain the technological edge that enables us to continue doing so, the cooperation of telecommunications companies is essential.

Our telecommunications systems are preeminent because they are developed and run by extremely competitive private enterprises.  We wouldn’t want them nationalized, even in a time of true crisis.  Government would never be able to duplicate their efficiency.  Even if that were not the case, precedents such as the Supreme Court’s invalidation of President Truman’s seizure of the steel mills during the Korean War would not allow it.

But here’s the hitch:  The sovereign is presumptively immune from legal claims.  When an agency of government executes its regular duties, it is not subject to suit unless it has consented to be sued.  That includes the errors government operatives inevitably make.  Were that not the case, police would be afraid to make arrests, prosecutors to bring charges, and “first-responders” to react to emergencies.

The same is not true of private actors.  Our law does not automatically protect them from ruinous litigation, even if they are performing services without which government could not function and American lives could not be protected.

That, indeed, is the core of the ongoing controversy over the House Democrats’ stunning failure to renew legal authority the intelligence community needs to monitor terrorist and other foreign threats overseas.  There is broad consensus that this authority is essential, that any gap in our surveillance coverage while our enemies are actively plotting reprisals of 9/11 is unacceptable.  Yet the hard Left has dissuaded Speaker Nancy Pelosi from permitting a vote on a bipartisan compromise bill that passed overwhelmingly in the Democrat-controlled Senate.  Why?  Because the compromise would immunize the telecoms from lawsuits.

There are dozens of such suits, filed by antiwar groups and civil liberties activists.  Their specific target is the NSA’s warrantless surveillance program, ordered by President Bush in the crisis conditions that obtained after the 9/11 attacks.  The more general target is the war effort itself, the ability of the United States to defend itself from attack.

Suing the government itself is largely an exercise in futility.  Suing the telecoms is not.  (Though I am a longtime critic of our surveillance laws, I note in the interest of full disclosure that my wife works for a telecommunications company.)

The suits portend billions in damages.  Even if they are ultimately unsuccessful, as is highly likely, they have already cost untold millions to defend against, with the prospect of staggering expenditures yet to come.  Most importantly, the burdensome fall-out creates a powerful incentive against future cooperation.  When government next knocks on the door to ask for help, the telecoms are quite likely to say no — no more rapid compliance with written assurances of lawfulness, no more strategic assistance to the intelligence community’s constant struggle to stay ahead of our technologically adept enemies.

From a security perspective, it’s a catastrophe.  And that’s just what the lawfare “plaintiffs” intend.

At the forefront of the fifth column is the Center for Constitutional Rights.  Risibly dubbed a serious civil rights organization by the mainstream press, it is in fact a hard Left redoubt begun by such radical lawyers as the late William Kunstler and Arthur Kinoy for whom the Sixties never ended.  Besides suing the telecoms, CCR’s other recent “accomplishments” include capitalizing on Europe’s muscular pacifism by suing former Defense Secretary Donald Rumsfeld in Germany for alleged “war crimes” in Iraq, and becoming al Qaeda’s house counsel at Guantanamo Bay.

CCR has filed numerous lawsuits on behalf of enemy combatants.  Apart from the general purpose to defeat the U.S. war effort, the specific goal is to frustrate our capacity to collect the other most valuable species of intelligence:  the fruits of interrogation, information from actual operatives about ongoing terror plots.  As CCR president Michael Ratner, triumphantly bragged in a 2005 Mother Jones interview:

The litigation is brutal [for the United States].  We have over one hundred lawyers now from big and small firms working to represent these detainees.  Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they’re doing.  You can’t run an interrogation … with attorneys.  What are they going to do now that we’re getting court orders to get more lawyers down there?

Of course, the government remains largely immune from suit.  CCR can complain about combatant detentions and military commissions, but it can’t get a court to compel the release of its clients held as alien terrorists — at least not yet.  Shutting down interrogations, though, is a plausible goal … and that’s largely because our overburdened troops need civilian assistance.

So strapped are our forces that they not only lack anything near an adequate number of translators; they also want for interrogators.  The Abu Ghraib prisoner abuse scandal thus presented a golden opportunity for advancing CCR’s agenda.  It duly pounced, joining forces with two self-styled human-rights lawyers, Susan Burke of Philadelphia and Shereef Akeem of Detroit.  (Akeem, who works closely with the notorious Council on American Islamic Relations (CAIR), has some interesting clients, including the Islamic American Relief Agency, recently indicted by a federal grand jury in Missouri on terrorism-financing allegations involving Iraq and Afghanistan.)

The trio targeted for suit the private translators and interrogators retained by the Defense Department.  While our troops are immune from tort claims arising out of combatant activities during wartime, the law is not so clear regarding the allegedly tortious acts of civilian contractors.  A federal judge in the District of Columbia reasoned that contractors were protected only to the extent necessary to insulate military decisions from state regulation, and thus that civilian immunity turned on the “degree of operational control” the military exercises over the contractor in question.  Applying that test, the court determined that the translators got the benefit of combatant immunity but, somehow, that the interrogators might not — meaning that the latter will have to face a trial.  (The ruling is being appealed.)

Alarmingly, a key factor cited by the court in finding that the interrogation contractors were independent actors (rather than under military control) was their corporate code of conduct.  It required them to report any misconduct not only to the military chain of command but to their own.  If that is to be the standard, few contractors will be protected:  the military generally requires its contractors to have a corporate code of conduct to get Defense Department business.  (Indeed, federal sentencing law actively encourages businesses to adopt such codes and compliance protocols.)

Is this a problem?  Only if you’re worried about the possibility of lawsuits grinding our armed forces to a halt during wartime.  To take just a few examples, the Defense Department employs private industry to service the satellite communications systems on which it relies for the management and dissemination of intelligence; to organize, translate and analyze the documents and other items seized in military operations (a crucial source of battlefield intelligence); to transport forces by air, land and sea; to transport medical supplies and technicians to combat zones; and countless other mission critical support tasks.

In a saner time, the Supreme Court observed in its 1950 Eisentrager decision that

It would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.

Yet that is exactly what is happening today, through targeted lawfare against private enterprise.  Business doesn’t just make the American economy, and thus the global economy, work.  Without it, today’s armed forces cannot keep Americans safe from a savage enemy dedicated to mass-murder attacks.  If we fail to protect the civilians who empower our fighting men and women, they will not be the only civilians to suffer the consequences. Mr. McCarthy, a former federal prosecutor, directs the Center for Law & Counterterrorism at the Foundation for the Defense of Democracies.