I’ll See Your Cyberwar and Raise You One Subpoena

by Andrew C. McCarthy

Referring to the feckless cease-and-desist letter the State Department’s Harold Koh sent to Wikileaker Julian Assange, Jonah aptly says in his column today, “When lawyers run your foreign policy, this is what passes for a blistering counterattack.” We have seen this again and again over the years, and it is probably the central theme of my Willful Blindness. I contended there that putting attorneys in charge of national security perfectly suits a government that is too paralyzed to do anything meaningful but knows, politically, that it must appear to do something

In national-security matters, litigation (or the threat of it) creates the illusion of robust government action. Even domestically, where U.S. law applies everywhere and U.S. executive agencies enforce the legal maneuvers of government lawyers, it is highly overrated. Between the filing of a complaint, the follow up of an indictment, the press releases and press conference that attend each, the pretrial filings and hearings, the discovery disclosures, etc., the process makes it look like real progress is being made and that lots of offenders are being brought to heel — when in reality, you may be a year or two down the line without doing anything more than getting a defendant or two to the start of a long trial.

But legal jousts are close to pointless in the international arena, where U.S. law does not apply and foreign agencies yawn and snicker at the exertions of U.S. prosecutors and State Department lawyers. As I’ve pointed out before, bin Laden has been under indictment since June 1998; Zawahiri since 1999. When he was apprehended in Pakistan in 2003, KSM had been under indictment for about seven years — and his capture owed to wartime operations, not the criminal justice process. The Brits have been holding a couple of the embassy bombers for over a decade — they’re among our best friends in world, but we can’t get them to extradite terrorists to us, even after we transfer Gitmo detainee terrorists to them.

The bad guys know all this, of course. For that reason, the problem is not just that legal responses to foreign threats to our security are ineffective; they encourage more threats (and worse) because the bad guys know we are not serious about defending ourselves — they know they can provoke with impunity.

Foreign affairs are the business of politics, not law. Harold Koh can send his letters and Attorney General Holder can seek indictments. If we’re lucky, we might see Assange in an American courtroom in a decade or two — during which we’ll be about as effective in halting his cyberwar as we have been in stopping bin Laden and Zawahiri for the past dozen years. If you want to stop him, you’ve got to take real action — diplomatic pressure and military/intelligence operations. Illusory legal action is not going to cut it.

I should probably add a concession that Dean Koh’s letter, though ineffective, is a sign of progress. As Bret Stephens explained in the WSJ yesterday,

better late than never. Last week, State Department legal adviser Harold Koh sent a stern letter to Mr. Assange’s lawyer warning of the “grave consequences” that would flow from publication. Alas, none of the consequences had anything to do with Mr. Assange, which might explain why the letter had no effect. But given that this is the same Mr. Koh who, as dean of Yale Law School, pompously lectured the Senate Judiciary Committee in 2008 about the evils of “excessive government secrecy,” his letter still represents a significant change of heart.

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