The "Cry Wolf" Doctrine
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Don't be surprised that the Bush administration had to backtrack late last week after solemnly declaring that intelligence officials were losing valuable information about the war on terror due to Congress' refusal to endorse the Protect America Act. Federal officials have been crying wolf in court on terror matters - and then later eating their own words - for a half-decade.
In addition to extending statutory approval for the government's controversial spy powers, the pending legislation would grant telecommunications companies immunity for aiding the government in its domestic surveillance efforts. On Friday, Attorney General Michael B. Mukasey and Director of National Intelligence J. Michael McConnell wrote to Congress to say that the nation "is now more vulnerable to terrorist attack and other foreign threats" because House Democrats have stalled, for the moment, passage of the surveillance act.
Turns out, not so much. Turns out the telecom companies, ever eager to pay back their immunity-granting patrons, are providing the government with the same intelligence information as before even though it seems murky that they have any legal requirements to do so.
The White House conceded the point just hours later and probably won't be able (with a straight face) to try to imply any more through its spinners - including the President - that Congressional Democrats are traitors to the defense of the nation because they want to mull over this surveillance and immunity thing a while longer.
The finely-pitched and relentlessly-howled wolf-cry has long been a staple of good politics and bad governance. It usually works for a while and then - just like in the classic fable - serves the opposite effect.
In real life, the Administration perfected for a while the tactical use of wolf-crying in its legal war on terrorism. In the first few years after the Twin Towers fell, federal lawyers would stand up and declare that judges should accept at face value the factual assertions offered by intelligence officials, lest the war on terror (and our nation's defenses) grind to a halt.
This tactic worked grandly for a bit - and people like me whined about the demands for deference the executive branch has made upon the judiciary. For a while the courts bowed greatly, asked no questions, and allowed the other two branches to manage even the legal side of the battle.
But then allegation after allegation, tall tale upon tall tale, exaggeration after exaggeration, crumbled executive-branch credibility in terror-law cases. People didn't stop believing there was a "wolf" because they never saw one; people stopped believing there was a "wolf" because evidence began to surface which proved there never was one.
Cry Zacarias! - as in Moussaoui, the loon who was the so-called "20th hijacker" until he wasn't, and then a dangerous "terror conspirator," until it was established by a real dangerous terror conspirator that Moussaoui was such a bad terrorist wanna-be that he was fired from the 9-11 mission long before its operational phase.
Cry Jose! - as in Padilla, the street punk who was the "dirty bomber" until he wasn't even a terror conspirator but more a recruit.
Cry Yasir! - as in Esam Hamdi, the first "enemy combatant" who was so dangerous that he could not even get legal rights, until he wasn't one any more, and the feds released him into freedom back to the Middle East.
Cry Hamdan! - as in Salim Ahmed, the Guantanamo Bay detainee who case has tied the courts up in knots for years. The government long cried that if terror detainees were to get certain basic legal rights (like actually seeing the evidence against them), the whole military commissions structure - not to mention our security - would go the way of Bautista. That is, until the White House and Pentagon announced earlier this month that it would prosecute six terror suspects using rules similar to those offered to U.S. military defendants.
Cry Competence! - as in, "Trust us, judge, because if you give us the power to domestically spy, only a handful of Americans will have their privacy intruded upon." Never mind! The Federal Bureau of Investigation got unauthorized access to perhaps hundreds of e-mail accounts due to a breakdown in communication between the feds, their computers, and those pesky telecommunications companies - you know, the ones who now want to be protected from negligence under the Protect America Act.
Cry Material Relevant Evidence! - as in, "Trust us, judge, when we tell you that there are no videotapes of any interrogation sessions between intelligence officials and terror suspects that would be relevant at this particular capital trial." Never mind! Turns out there were some tapes after all but they were destroyed them (in the name of national security, which was the same reason we didn't tell you about them when it would have mattered in that trial). Oops.
This time, like the last time several times, there was no wolf - America's intelligence-gathering capabilities have not been compromised by the political stalemate. But the next time? Who knows?
I'm no expert, but it seems to me that the terror threat has been very real enough over the past half-dozen years so as to preclude the need for the government's shady pattern of "exaggerations." That's scary enough!
What's even scarier is that, having made masterminds out of too many terror small-fries, the White House now is going to ask us again, in the near future, to abide by its alarms when it identifies the next suspect. What are we supposed to believe then?