Security and the Law: Where do they meet?

By Scott Cullinane, Center for Strategic Research

Judge's MallotEarlier this month the judge in the Ahmed Ghailani trial disqualified the prosecution’s star witness, Hussein Abebe, from testifying. Ghailani is being tried for his links to the 1998 East Africa Bombings and the witness, Abebe, is the man who sold him the explosives used in the attacks. The judge ruled that Ghailani was “coerced” into giving up Abebe’s identity and consequently his testimony against Ghailani could not be used because of how Ghailani was interrogated years before Abebe was captured.

 Regardless of the judge’s intent, his actions raise a vital but deceivingly simple question: What is American’s national interest in this trial? Should the trial aim to uphold the rule of law, or should the goal be to imprison Ghailani in order to prevent further terrorist activities? When the judge threw out Abebe’s testimony he came down on the side up holding the law, and by doing so, he committed an act of legalism.

 Legalism is operating with the aim of upholding the law as the national interest in and of itself; in this case law is the ends, not a means to reach a national goal. This is not a new concept in American history. The United States has long seen itself as an exceptional country, recognizing a natural law that guides policy and constrains excess. The idealism of Woodrow Wilson led to legalism dominating American inter war foreign policy. It was thought that law could bring security regardless of competing international actors. Henry Kissinger has described this period as when “national interest [was] defined in legal rather than geostrategic terms.” The Briand-Kellogg Pact of 1928, which outlawed offensive war, was the high water mark of the legalist approach. The Briand-Kellogg Pact lacked any enforcement mechanism and was oblivious to long standing national rivalries; but it was thought that the law itself would be enough to prevent war. This was a flawed outlook and history shortly proved that.

 Echoes of the legalist logic from this time are evident in our recent discussions on how to deal with captured terrorists. The developments in the Ghailani case, and other recent examples such as the Mirandizing of Umar Farouk Abdulmutallab, the Christmas bomber, indicate that in some cases national security is still being approached from a legalistic perspective. America tried before to act as if our national interest and the law were one and the same but this did not produce the desired results. The good intentions of those who pursued legalism could not overcome the strategic realities of their time, and there is little reason to expect otherwise today. America would do well to learn from its past. How could the lessons on the inter-war period be applied today?

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Filed under Featured News, National Security Reform, Regional Studies, Strategic Studies

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