Fight hard, but according to the rules
Niall Ferguson has an excellent review of Phillip Bobbitt’s new book, Terror and Consent in the New York Times. Readers will find Bobbitt’s arguments on the need for a constitution-circumscribed but aggressive counter-terrorism strategy similar to The Acorn’s:
Bush’s instinct was not wrong. In this war, we do need pre-emptive detention of suspected terrorists; we do need a significant increase of surveillance, particularly of electronic communications; we do need, in some circumstances, to use coercive techniques (short of torture) to elicit information from terrorists. The administration’s fatal mistake was its failure to understand that these things could be achieved by appropriate modifications of the law. By doing what indeed was needed, but doing it outside the law, the administration undermined the legitimacy of American policy at home as well as abroad. Bobbitt is emphatic: all branches of government must act in conformity with the Constitution and the law.
To summarize: Bobbitt believes that there is a real war against terror; that civil liberties as previously understood may need to be curtailed to win it; that we must nevertheless fight it without violating our commitment to the rule of law; and that the United States cannot win it alone. This is certainly not a combination of positions calculated to endear Bobbitt either to the left or the right in the United States today. [NYT]
Bobbitt’s context is US foreign policy. But these arguments are largely applicable to constitutional democracies faced with having to fight wars against “networks” of terrorists and insurgents. The state cannot allow its legitimacy to erode even as it takes its fight to the “terrorists”.