The “criminalization of war and intelligence contributed to the paralyzing risk aversion that pervaded the White House and the intelligence community” pre-9/11 and apparently still does. From Jack Goldsmith’s The Terror Presidency: Law and Judgment Inside the Bush Administration as excerpted by Glenn Reynolds:

In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls. These men and women did not believe they were breaking the law, and indeed they took extraordinary steps to ensure that they didn’t. But they worried nonetheless because they would be judged in an atmosphere different from when they acted, because the criminal investigative process is mysterious and scary, because lawyers’ fees can cause devastating financial losses, and because an investigation can produce reputation-ruining dishonor and possibly end one’s career, even if you emerge “innocent.”…

Why, then, do they even come close to the legal line? Why risk reputation, fortune, and perhaps liberty? Why not play it safe? Many counterterrorism officials did play it safe before 9/11, when the criminalization of war and intelligence contributed to the paralyzing risk aversion that pervaded the White House and the intelligence community. The 9/11 attacks, however, made playing it safe no longer feasible…

After 9/11, the Bush administration feared for the nation’s safety as much as Franklin Roosevelt had. But Roosevelt’s political conception of legal constraints had largely vanished, and by 2001 had been replaced by a fiercely legalistic conception of unprecedented wartime constraints on the presidency. When President Bush and his senior advisors began to order the aggressive actions that they believed the post-9/11 situation demanded — covert military action, surveillance, detention, interrogation, military trials, and the like — they encountered these constraints for the first time in a major conflict…

It is unimaginable that Francis Biddle or Robert Jackson would have written Franklin Roosevelt a memorandum about how to avoid prosecution for his wartime decisions designed to maintain flexibility against a new and deadly foe. . . . Many people think the Bush administration has been indifferent to wartime legal constraints. But the opposite is true: the administration has been strangled by law, and since September 11, 2001 this war has been lawyered to death.

The Defense Department has more than 10,000 lawyers, a ratio of one lawyer to fewer than 50 soldiers. That would appear to be a terrible ratio for fighting and winning wars. (Under certain circumstances, as some literature recounts, that could be a potentially unhealthy ratio for the lawyers themselves.)

This entry was posted on Monday, September 10th, 2007 at 6:56 am and is filed under General, idiots!, Law, War. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.