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Civilian Courts Are America’s ‘Most Effective Terror-fighting Weapon’?


So said Attorney General Eric Holder, in an address to the American Constitution Society.

The statement is so incredible, so “lunatic” (to quote Ralph Peters), that it’s hard to know where to start. Terrorists laugh (I know; I’ve heard them do it) at our much-vaunted civilian court system and our commitment to go above and beyond the requirements of the law of armed conflict in the treatment and handling of detainees. Our civilian court system deters no one and brings precious few terrorists to justice.

That’s not to say that lawyers (and civilian legal norms) haven’t been instrumental in the fight. They have, but not in the way Attorney General Holder believes.

First and foremost, the Left’s lawyers are adept a waging “lawfare,” a form of asymmetric warfare that abuses both domestic and international legal norms to accomplish tactical and strategic goals that can’t be won on the battlefield. The successful use of lawfare means that air strikes aren’t launched, guilty detainees are released rather than punished, and — ultimately — the use of force is so restricted that our war disappears into the morass of a grandiose and expensive law-enforcement operation.

A legal strategy requires a legal response, and one of my primary jobs while serving as a judge advocate with the 2d Squadron, 3d Armored Cavalry Regiment in Iraq was ensuring that my commander retained and exercised all the freedom given him by the law of armed conflict and by our rules of engagement. In other words, if I did my job well, I facilitated an actual war, not a police action. In fact, the better I performed, the less relevant I was to the fight, as our war-fighting professionals were free to meet the enemy on our terms, not theirs — and not the antiwar Left’s.

Make no mistake, I respect our civilian court system immensely, but it is ill-suited to address the challenge of a well-armed, utterly depraved enemy lurking in the hills of Afghanistan and Pakistan. Lawyers can be useful, but we’re not critical — unless we’re fighting against the Left’s lawfare.

Let’s put it another way: If you saw a dozen al-Qaeda terrorists approaching your location, who would you rather have by your side? A squad of lawyers like me (even with my sidearm and M4 that I carried downrange) or one of Fox Troop (2/3 ACR)’s Bradley Fighting Vehicles, chain gun at the ready?

— David French is a senior counsel at the American Center for Law and Justice.