Before answering yes, first give a thought for our troops — our fellow citizens doing hard service in the field.  Neither the WikiLeaks operators nor journalists nor we can conclude that the disclosures do not imperil our troops.  This is field information:  a conversation reported here, a foreign official’s presence noted there, a weapon or tactic discussed.  Its use to the enemy depends on what the enemy already knows or doesn’t; seemingly innocuous disclosures can advance the enemy’s situational knowledge or tactical abilities.  Military officials charged with protecting lives on the battlefield have, though, determined that disclosure of these ground-level reports can be particularly harmful, and we dismiss those concerns at our peril or – more accurately — the peril of those who at this moment risk their lives to defend us.

Nor can we take much comfort in the value of “transparency.”  The blunt truth is that our military often succeeds and our diplomacy works because our government isn’t transparent: we purposely keep our foes and others uninformed and even misled.  Transparency is just a fancy word for disclosing our secrets and confidences, not a proxy for the public interest.

If “transparency” is instead shorthand for the value of public debate, the answer hardly changes.  All three news organizations reporting on the leaked information have struggled to perceive any news, any contradiction of official assessments and justifications for the conflict.  These disclosures are hardly the Pentagon Papers – that history of high-level policy formulation that seemed at odds with the Johnson Administration’s claims of years before.  And for those who reach reflexively for the First Amendment, recall that the Pentagon Papers case addressed only whether publication could be enjoined – the Supreme Court pointedly did not suggest that the First Amendment shielded the leakers or the press from prosecution or otherwise justified the publication.

Nor is this really about journalism at all.  The newspapers were just annotating a broader disclosure available to all, as they might report a train wreck.  And just as the train wreck is hardly of public value simply because it’s reported, neither is the WikiLeaks release.  Instead, a group opposed to our military’s conduct and policies seems intent on procuring and disseminating our military’s secrets on a wholesale and largely indiscriminate basis, available to our foes and foreign governments alike.  We would be horrified if a foreign agent accomplished the same result, and expect our government to seek to stop or punish the disclosure.  It’s hard to see why the same reaction shouldn’t apply here.

Sen. Graham’s focus and conclusion in this line of questioning are clearly right.  While the Miranda issue isn’t as clear as he suggests, the choice of a law-of-war model or a law enforcement model is the key issue, and there he’s right.  We live in a post-9/11 world and should act accordingly.

Khalid Sheikh Mohammed is not some Bond villain, an errant super-criminal finally put behind bars. He led an organized network of foreigners abroad who were at war with us long before KSM’s actions pushed us into war with them.  For those foreign terrorists, as opposed to their home-grown financiers or fellow travelers, our criminal justice system is ill-fitted.  It is both too much, in the scope of rights and platform for mischief it provides, and too little, in its incapacity to address the overseas intelligence and military issues that arise.  The trials of the World Trade Center bombers and of Zacarias Moussaoui, the so-called twentieth hijacker, proved how incapable our justice system is at efficiently prosecuting terrorists while safeguarding information necessary to our own war efforts.  And, the Obama administration’s rationale for providing a jury trial for the worst war criminals, while reserving to the military commissions lesser al-Qaeda members, is impossible to discern or defend.

The administration’s choice also undermines our criminal justice system.  Already, the President has publicly stated that KSM is guilty and should be put to death; Department of Justice officials have indicated that he would be held as an enemy combatant if acquitted or prematurely released; and the AG and others have said that the choice between the systems depends on the strength of the evidence at hand.  This is the language of show trial, and demeans and politicizes our criminal justice system.  As Sen. Webb observed, KSM doesn’t belong in our country, our courts, or our prisons.

The debate over indefinite detention often wrongly focuses on Guantanamo Bay. No matter how Guantanamo detainees are handled, the Obama Administration will continue, directly or indirectly, to detain hundreds if not thousands of enemy combatants indefinitely in many places for many years to come.

The extent of the current Administration’s continued use of war powers against terrorist organizations is hard to overstate. The Obama Administration has pursued in nearly every aspect the prior Administration’s conduct of the war in Iraq and Afghanistan and against terrorist networks globally. As a formal matter, this Administration has embraced nearly all the components of wartime and related Executive powers asserted by its predecessor and then subject to controversy.

The principal purpose of detention is to keep those who would harm U.S. citizens and troops from returning to the fight. In this sense, wartime detention of combatants is always “indefinite” or “prolonged” until conflict ceases. A nation at war does not know when the conflict will end or, at times, whether it will even prevail.

If standards for detention are increased, or if detention were abandoned or restricted, at least three consequences would follow:

First, detention would be outsourced. U.S. officials would rely on foreign allies to capture, interrogate and detain enemy combatants, and recent reporting shows that this is already occurring. Detainees are less likely to be captured, more likely to be released prematurely, and less likely to be treated well.

Second, mistaken release of detainees would occur more frequently. Even under the current standard, many detainees released by the U.S. have gone on to becomeal Qaeda and Taliban leaders, a suicide bomber, and combatants against our troops. This Administration’s Defense Department recently detailed the significant breadth of this problem. Even so, none of the detainees released from Guantanamo has attacked citizens in the United States — yet.

Third, detention would be sidestepped. Enemy combatants may be left in the field because criminal standards of proof have not been satisfied, placing our troops and citizens at risk. This was the principal flaw in ourpre-9/11 counterterrorism policy. Or, the military may choose instead to use the force of arms against the combatant when capture may prove pointless or risky.

Some suggest that we can avoid these tough choices by relying exclusively on criminal proceedings. But just because we can prosecute some terrorists in federal court does not mean that we can prosecute all who would attack our troops and citizens.

We should resist the return to pre-9/11 practice that exclusive reliance on criminal proceedings would reflect. We do not want to leave terrorists in the field, or send them there, simply because U.S. forces have not gathered evidence of past wrongdoing, admissible in court and provable “beyond a reasonable doubt.” We want them off the battlefield sooner, and to stay off longer. As the President says, we need “tools … to allow us to prevent attacks.”

The most important national security benefit of detaining enemy combatants is simple but essential: to ensure that those detained do not directly or indirectly attack our troops or citizens, here or abroad, or the troops and citizens of our allies. The continued availability of detention also ensures that our military and intelligence forces can and will continue to seek to detain additional combatants.

There is immense moral value in ensuring that enemy combatants, through continued detention, do not kill or injure our troops or citizens, or those of our allies. Perhaps our greatest moral obligation, apart from protecting the nation’s citizens, is to the troops we ask to defend us, and to their families. Ongoing detention in large measure seeks to, and succeeds in, satisfying that obligation.

Thus the risk in Souter’s resignation. It isn’t that the replacement will add a new, lock-step member to the Court’s liberal faction on national security matters. Been there, done that — thank you, Dick Thornburgh and John Sununu. The risk instead is that his replacement will be an intellectual innovator on security issues, a decent writer who imports the new and often quite radical thinking of the self-styled “human rights” advocates opposed to robust national security powers.   

Perhaps, for example, a Harold Koh – a citizen of the post-sovereign world where security threats are always overstated and American power is subject to limits found in the floating cross-border conversations of a thousand faculty lounges, foundation offices, and international bar associations. A more European world where, as our Attorney General and President are fond of promising, we must abandon the morally fraught acts that have always been integral to the nation’s defense and have our “higher values” determine the scope of lawful powers available to the Commander-in-Chief.

How have we gotten to a spot where a choice of Supreme Court justice can affect the nation’s security? Once upon a time, our federal courts left matters of foreign and military policy to the President and Congress. This was true for jurists of the left and the right. Democrats who ascended to the bench in the post-War period crafted many of the most important doctrines that kept the courts free from these disputes. But that consensus gave way to the great erosion of judicial humility in matters of policy, to the increasingly partisan disputes over the scope of newly imagined rights, and to the creeping internationalism that finds rights first among foreigners who would attack us rather than those here who would be attacked.      

This suggests a possible silver lining in the resignation. It’s possible, just possible, that Souter’s replacement will be a throwback in this respect – to a time where even the most robustly liberal justice on domestic issues paused before opining on national security matters, and paused further before overturning the considered view of the President. There are candidates for appointment with executive branch experience or a sense of history or peril who might fit this description. But they are a distinct minority, and we should prepare for a braver, newer world where judges rather than generals or diplomats increasingly determine what best protects the nation.

The excerpt posted April 14 edges up to an answer that current arrangements have hamstrung the Executive, putting the nation at risk. The second, posted the next day, takes some comfort in the Obama Administration’s continuation of certain counter-terrorism policies. It suggests that the right balance has emerged from “the surprising general consensus on how to meet this challenge among the late Bush Administration, the early Obama Administration, and Congress.” While the latter conclusion would be comforting, several reasons suggest that the consensus is illusory and Goldsmith’s earlier conclusion is closer to the truth – and in fact understates the limits on the Executive’s current power and the resulting risks to the nation’s security.     

Turn first to dealings between Congress and the President. Prior to the twilight of the Vietnam War, Congress influenced ongoing national security initiatives mostly through the budget process, specialized briefing and oversight processes, and general laws structuring our armed forces. The Terror Presidency outlined the web of relatively recent laws and treaties that governed counter-terrorism activities even in the early years of the Bush Administration, while faulting the Administration for not engaging Congress more actively in the years following September 11. Whatever the merits of that criticism (and the Patriot Act, authorizations for the use of military force separately in Iraq and against al Qaeda, the creation of the Department of Homeland Security, and the statutory reorganization of the intelligence community weigh against the point), Goldsmith does not extend it to the later Bush Administration. For good reason: two separate surveillance Acts, separate statutes addressing treatment of detainees, the reauthorization of the Patriot Act, high-profile hearings regarding various military and intelligence initiatives, and vigorously contested military spending bills marked those years.       

There’s much to be said for many of those statutes and for that engagement with Congress, but those events only begin to capture the emerging dynamic between the branches. Legislative actions increasingly reflect a deep resistance to maintaining ongoing military engagements and to leaving their management to the President.  Historians may debate whether Congress snatched defeat from the jaws of victory in declining to support the South Vietnamese in the mid-1970s, but there is little doubt that Congress nearly did so in 2007. Many in Congress sought to manage and constrict the conduct of the Iraq War and the broader war against terrorists, and the Democratic majority repeatedly backed measures designed to short-circuit the Surge and end combat long before the military advised. Those measures would have plunged the region into a chaos that would have benefited only our enemies. Early responses to the Obama Administration’s Afghanistan plans and requests for supplemental military appropriations suggest that the Vietnam impulse will be with us for many years to come.  

Congress also increasingly reflects the left’s traditional hostility to a range of intelligence activities. The longstanding reconciliation of Congress’ interests with the execution of effective intelligence measures was to have the House and Senate Intelligence Committees manage oversight of sensitive intelligence matters. Indeed, invigorating and formalizing that channel of oversight was the principal structural change produced by the debilitating Congressional investigations of the 1970s and 1980s. Recently, that compromise has broken down. The press and the left clamor for public disclosure of the most sensitive details of intelligence activities, and many Congressional committees – often without the intelligence committees’ commitment to confidentiality – structure their hearings and legislative activities accordingly.

And then there are the courts. Goldsmith rightly underscores how the federal courts have recently abandoned longstanding doctrines and precedents to reach out to limit the Executive’s counter-terrorism powers. If anything, he understates the nature of the departure and the risk it poses to the national security. Beginning in the 1940s, judges absorbed the lessons of World War II and the Cold War about existential threats to the nation and elaborated a range of doctrines that nearly always removed the judiciary from political and policy debates surrounding the conduct of foreign and military affairs. This remained true even as judges crafted new rules to permit an explosion of domestic legal claims against the government during the 1960s and 1970s: despite antiwar activists’ best efforts, the courts sidestepped the robust legal disputes over the authorization and conduct of the Vietnam War, and continued to avoid such issues through the conclusion of the Cold War and the military engagements of the 1990s. 

Many judges adhere to that tradition of deference in military and foreign affairs, but the culture wars that have split the judiciary have recently extended to those matters as well.  Many judges, including at times a majority of the Supreme Court, have acted on the basis that wars are too important to be left to the generals (or to Congress and the President) and that courts fulfill their mission by hearing and giving effect to claims of right. If you suspect that assessment is hyperbole, go read the majority opinion in Boumediene. There, the Supreme Court last year reversed its own precedent to set aside the considered national security judgment of Congress and the President for the benefit of foreign persons the military had concluded were waging war on the nation. That decision is only the most prominent in a series of cases that address disputes between the government and groups opposed to counter-terrorism and other military and intelligence activities – and that split judges along the same political lines as do the domestic disputes that have long traced the legal battle lines in the culture wars.                

This judicial activism and recent dynamic between Congress and the Executive reflect a broader change in legal culture — fostered not coincidentally by a generation that cut its teeth on protests against the Vietnam War and the CIA.  Both developments stem in large part from the extension to military matters of the rights and litigation cultures that have flourished over the past decades amidst disputes over the death penalty, criminal defendants’ rights, personal privacy, religious observance, and access to government information. In particular, the government’s counter-terrorism programs naturally threaten the standing of and provided opportunities for the self-styled international human rights community. Viewed from the perspective of an adversarial legal culture, the conflict between the U.S. government and foreign terrorists principally threatens the rights and interests of foreign persons targeted by the government, rather than the rights and interests of U.S. citizens targeted by the terrorists. Foundation grants, pro bono support from prestigious law firms, generous press coverage, and rulings from sympathetic judges promptly followed. 

The most pressing national security issue may well be whether this adversarial legal culture has captured the Executive itself, in addition to influencing Congress and the judiciary. Several of President Obama’s top appointees to the Department of Justice and elsewhere made their names litigating against the United States on behalf of now-convicted terrorists or otherwise opposing initiatives that the Obama Administration has tentatively continued. Disputes surrounding the binding effect of international legal norms will shape the force and scope of the Administration’s counter-terrorism efforts, and other appointees advocate the legal theories that would most constrain U.S. action in this respect. Still others within the Administration may be exquisitely sensitive to the legal and political claims of the domestic and international rights communities.

For this reason, the nation’s security and the robustness of its actions directed against our adversaries will largely turn over the next years on whether the Executive Branch disables and disarms itself, rather than upon the courts’ or Congress’ checks upon its powers. Jack Goldsmith has been one of the most cogent and thoughtful defenders of the traditional legal doctrines and theories that provide the framework for vigorous assertions of sovereignty and defenses of the national security. His view has until now been a majority one among lawyers in the Executive Branch, but a decidedly minority one among law professors, advocacy organizations, and much of the elite bar. Members of those groups have now gained the commanding heights of much of the Executive Branch itself, and we will have to watch to see whether they continue the national security “consensus” that Goldsmith finds in the later years of the Bush Administration or embark instead on a considerably different course.