The Federalist Society’s ‘War on Terror’

I have been a proud member of the Federalist Society and have long appreciated the institution as a a valuable resource for libertarians and conservatives. It has none of the sinister shadowiness that the left sometimes tries to stick it with.

But an event invitation I received today suggests that the organization is a little bit stuck - in reactive, undisciplined thinking about counterterrorism.

The War on Terror: Litigation Update is an event happening tomorrow at the National Press Club. The title and introduction six times use the term “war” with reference to terrorism-related cases and legal issues, and it asks, “Will the new administration’s policies remain grounded in the laws of war, or will they switch to a pre-September 11 law enforcement paradigm?”

Stating the alternatives this way is too slanted to go without comment. It implies that the lone alternative to a war footing is hapless dawdling.

Dawdling is not the only alternative to “war,” of course, and the Federalist Society’s tradition of thoughtful intellectual discourse is demeaned by the suggestion that it is.

At our counterterrorism conference in January, we explored how excessive reactions to terrorism and terrorist acts can be self-defeating. Among other things, trying terrorists in military tribunals and specially designed national security courts will tend to exalt terrorists and tell the world that they are a force we struggle to reckon with. This wins them support and recruits.

The better approach is to treat terrorists as criminals, with transparent fairness, which will drain the romanticism from their deeds and stories. Terrorists hate to be treated like criminals. The first of the “five demands” in the 1981 IRA hunger strike was the right not to wear a prison uniform. Treating them as ordinary criminals saps their legitimacy and the strength of their challenge to incumbent power in the eyes of key audiences.

By using an unfair characterization of the alternatives and binding its inquiry so tightly to the “war” metaphor, the Federalist Society is being intellectually dishonest and unhelpful in the effort to defeat terrorism. Hopefully, it will correct this error in the future.