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A Word to a Newfound Ally

As a longtime (and long-exasperated) reader of Lawfare, I’ve been heartened to see the site’s recent editorial turn, in response to current events, toward newly appreciating the dangers inherent in a too-powerful executive branch. In particular, the site’s chief, Benjamin Wittes, has been remarkably eloquent in calling out the coming risks of the Trump Administration. My protracted feud (in my own head) with Wittes has cooled of late, with columns like this one offering common ground for the hard years ahead. I may hold my grudges against a man who once blamed the rising tide of terrorism not on the “barbarities of any groups” but on the “indulgence of the self-appointed guardians of IHL, human rights law, and international law more generally,” a “soft-law world” that is “just not quite as horrified by Hamas as that group’s behavior and the relevant IHL conventions would lead one to expect.” But here’s to new friends in new foxholes.

Yesterday, Wittes was at his refreshing best again, aping Brendan Nyhan and defending “libertarian panic” (and its more robust cousin, “Trump Panic”) as a rational response to Trump’s election. Hear, hear. It’s frankly exciting to have a writer like Wittes marshaling these kinds of arguments, and it bodes well for the heightened state of vigilance that our common work will soon require. But in explaining his intense distrust of the erratic personality about to inherit the awesome power of the presidency, Wittes shows that his old animosities still run deep. To wit, this unwarranted low blow:  

Indeed, I think there are good reasons why someone, even now, might have a guarded reaction to cries of libertarian anxiety from the Left, and I am keenly aware that until very recently, I would have been among the first to note sharp civil libertarian reactions to government action that I regarded as premature, hyperbolic, or overwrought. Indeed, in my view, the Left has serially cried wolf in the past on national security matters. It has often confused legitimate policy disagreements with the march of tyranny. It has often confused the normal push-and-pull of the policy process on very hard issues with authoritarianism staring us in the face. And it has frequently treated recognizably democratic actors—like George W. Bush, for example—as though they were would-be Vladimir Putins. As a person who has often mocked such hyperventilations, I will be happy if circumstances were to make me look similarly foolish in my own eyes.

Rhetorical throat-clearing though it may be—as well as a marker to readers that while Wittes has found a new language, his old allegiances remain strong—this is hogwash.

Unsaid is that Wittes’s capital-L “Left”—not quite the same thing as small-c civil libertarians, but more fun to otherize—includes not just the American Civil Liberties Union, Human Rights First, and his nemesis Glenn Greenwald, but former Navy G.C. Alberto Mora, retired Army Maj. Gen. Antonio Taguba, and former FBI interrogator Ali Soufan as well. Back in the antediluvian days of yore, when advocating impunity for the architects of the torture conspiracy, Wittes was at his most “centrist” and “reasonable,” infamously taking aim at HRF when the group issued a failing grade to President Obama for “looking forward, not back”:

This is standard fare on the left now, and I don’t mean to pick on HRF in particular for it. But for whatever it’s worth, let me say this as clearly as I can: What HRF calls “accountability for torture” is, in my book, the criminalization of policy differences—nothing more or less.

So when Wittes yesterday writes about his past “criticism of other people’s libertarian knees jerking” as “premature, hyperbolic, or overwrought,” he’s not just referring to random protestors who called Bush a Nazi but to military officers who thought criminals should pay for their crimes—crimes, by the way, set into American law as a result of noted Leftist Ronald Reagan’s championing of the Convention Against Torture. And one has to wonder why Wittes’s plea for amnesty for David Addington and John Yoo—“They believed in what they wrote and in their legal interpretations, and they should be left alone”—would be unavailable to those whose intentions now quite rightly give him the shakes.

Of course certain members of the “Left” have engaged in heated rhetoric from time to time, but to reduce our collective arguments over the past 15 years to “crying wolf” is not a nice way to treat your new friends. And for the next good while here, we will surely be friends. As such, it is important that Wittes understand that while our aim has always been trained on those actually in power, our larger point was about those yet to come.

For the record, since it appears to be in need of saying: When the “Left” clamored for the criminal investigation of known torturers to ensure that their horrific practices would definitively end; when the “Left” argued that executive-branch warrantless wiretapping undermined democracy; when the “Left” warned that an unaccountable drone program threatened the rule of law; when the “Left” howled about due-process–free watch lists; when the “Left” drudged up the Church Committee Report as relevant to checks and balances on the NSA; when the “Left” marched to stop an illegal war based on lies; when the “Left” challenged unilateral executive detention on a Caribbean island; when the “Left” attacked the wisdom of alienating Muslim communities with round-the-clock surveillance; when the “Left” fought for the right to encrypt communications; when the “Left” denounced excessive secrecy and selective disclosure and legal fictions as dangerous to the foundations of the polity—

When the “Left” did all of this, we were not, as Wittes claims, “serially” crying about a big, bad wolf—we were anticipating him. The acts the Left called out as wrong were wrong, and our outrage was justly focused on those perpetrating and excusing them. But inherent in those critiques was the warning that those acts could presage others that might one day be far, far worse.

“Normalization” is very much in the air these days, but it is hardly a new phenomenon: normalization is cheering on a war that was a Strangelovian farce from the start; normalization is turning a forgiving eye to torturers; normalization is accepting military trials instead of civilian ones; normalization is using state secrets to head off accountability; normalization is passively endorsing secrecy over our government’s extrajudicial killings, even of an American child.

As we cross URLs to join hands in panic about whether President Trump might fire off the executive branch’s most dangerous guns—and we must—it is worth being clear about just how our past presidents managed to so effectively load them.

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About the Author

is a staff attorney in the ACLU's Center for Democracy, where he works primarily on national security issues. Follow him on Twitter (@brettmaxkaufman).