Several years ago, my daughter lay in a coma after a serious fall. Two nurses came into her hospital room to prepare for a transfusion. One clutched a pouch of blood and the other held my daughter’s medical dossier. The first read aloud from the bag, “Type A blood, and the other read aloud from the file, “Alexa Holmes, Type A blood. They then proceeded, following a script, to switch props and roles, the first nurse reading from the file, “Alexa Holmes, Type A blood, and the second reading from the bag, “Type A blood.
Why do well-trained professionals, when struggling with a rapidly unfolding emergency, adhere to rules laid down in advance? The principal reason is that in times of crisis people fall into predictable but avoidable errors, largely because of panic. Over time, detailed protocols have evolved for such confusing situations to encourage cool-headedness and minimize the risk of avoidable error.
The value of improvisation in the face of novel threats does not imply that existing rules should be peremptorily discarded. This point is almost trite, but it remains virtually unnoticed by last-ditch defenders of the Bush administration’s foreign policy. Even today, the leading Republican presidential candidates suggest that the rule of law is an unaffordable luxury in the battle with al-Qaeda. They claim that constitutionalism and due process, if meticulously followed, reduce the government’s “flexibility in devising ways to prevent terrorist attacks.
It is easy to imagine situations in which flexibility can be increased by curtailing individual rights and abandoning pre-established decision-making rules. But generalizing from these exceptions is unwise. An administration that has consistently boasted of its willingness to bend (and sometimes break) the law to meet an unprecedented threat has become notorious not for its flexibility, but for its rigidity.
Might there be a causal relation between the Bush administration’s cavalier, if not hostile, attitude toward law and its dazzling inability to acknowledge mistakes and manage midstream readjustments? Could it be that a willingness to flout the law and circumvent the Constitution tends to produce not nimbleness, but obduracy and intransigence?
Just as adherence to rules can improve the performance of emergency-room personnel, so due process and constitutionalism can improve the performance, especially in a crisis, of law-enforcement officers and national-security policymakers. Requiring the government to test the factual basis of its decision to use force is not a shackle to be thrown off, but an incentive for forethought and a psychologically stabilizing support.
A government that routinely makes fundamental national-security decisions based on undisclosed information, which no one outside a tiny circle of partisan loyalists ever has a chance to assess, is unlikely to make wise choices. The idea that executive officials will fight terrorism more effectively when they know that no one is watching is farfetched.
A presidency that, having dismantled traditional checks and balances, is never compelled to provide coherent reasons for its policies, is soon likely to have few coherent reasons for its policies. The self-defeating proclivities of such laxly monitored executive power are now visible for all to see.
Consider the decision radically to loosen evidentiary standards when deciding to incarcerate terrorist suspects in Guantánamo Bay or elsewhere. The result has been to encourage liars to clog the system with disinformation and false leads while discouraging honest people from reporting what they observe, lest an innocent neighbor be incarcerated on the basis of misperceptions.
Secrecy is, of course, necessary in national-security affairs. But excessive secrecy leads to scarce resources being diverted into wild-goose chases. And, to hide from scrutiny, the executive branch inevitably ends up hiding from itself – for example, by preventing well-informed experts in the State Department from independently appraising decisions made in the Pentagon. Obligatory consultation with independent and informed people may be annoying, but it can avert misunderstandings and accelerate the painful process of correcting blunders.
Having invaded an oil-rich Arab country that played no role in the terrorist attack of September 11, 2001, the United States has imprudently allowed itself to be sucked into its attackers’ primitive logic of collective punishment and group revenge. It thereby abandoned the most essential pillar of the rule of law, namely the individualization of culpability.
Restricting criminal liability to actual perpetrators, carefully excluding clansmen and kin, is a fragile historical innovation aimed at interrupting spirals of bloody inter-communal violence. The administration arguably devoted most of its counterterrorism efforts not to law enforcement operations, but into “war in Muslim lands because it failed to keep a cool head in the immediate aftermath of the attacks on New York and Washington.
It thereby inadvertently confirmed the jihadists’ vilest propaganda, suggesting that Muslims worldwide can, for no apparent reason, become targets of America’s lethal fury. The surest way to rouse violent resistance is to communicate to people that there is nothing they can personally do to avoid being attacked. That is yet another reason why flouting inherited rules and protocols, in the name of national security, has made, and will continue to make, the terrorist threat catastrophically worse.
Stephen Holmesis Research Director of the Center on Law and Security at New York University School of Law and author, most recently, of The Matador’s Cape: America’s Reckless Response to Terror. This commentary is published in collaboration with Project Syndicate (www.project-syndicate.org)
