Reflections on Power
Constitutional judo: our freedoms used against us
Our enemies, domestic and foreign, have learned that the most effective weapons they may use against us often are the foundational freedoms that by law and tradition we grant those who would use them to destroy us.
In 2025, former Attorney General William P. Barr delivered the first Laurence H. Silberman lecture on law and national security at the American Enterprise Institute (AEI). Therein, Barr said:
Today our jurisprudence sometimes feels like the fussy scholasticism of the late Middle Ages: too cute by half, and unfit to grapple with practical reality, especially in the realm of national security.
Barr continued, as to presidential authority under Article II of the Constitution:
Unfortunately, in the past 50 years there has clearly been a vast over-judicialization in the national security sphere .... We have a military that can’t detain prisoners of war, because of the massive burden of having to litigate waves of habeas petitions throughout the federal courts. And we present to the world the shameful spectacle of a country that has had in its custody for over 22 years the individuals responsible for the 9/11 attacks, the most heinous and bloody attack on our country that we’ve ever experienced, and yet a country that has tied itself in such legal knots that it is unable to bring these people to justice. If the national security jurisprudence we have today existed in 1940, I’m afraid I’d be giving this lecture in German.
Referring to a watershed 2008 Supreme Court case conferring due process rights on foreign combatants, Barr said:
For the first time, the court ruled that foreign persons who had no connection with the United States other than being confronted by our military in the theater of battle enjoyed a Constitutional privilege of habeas corpus to obtain judicial review of whether the military had a sufficient evidentiary basis to hold them. This effectively conferred on enemy prisoners of war due process rights akin to those a criminal suspect has under our domestic justice system. This was a radical departure from both the purpose and the history of the writ.
In a similar vein, in August 2026 Eric Florack posted an article at PJ Media, asking “Why is KSM Still Alive?” He notes that a federal military judge set a June 5, 2028, trial date for the mastermind (KSM) behind the September 11, 2001, jihad-inspired terror attacks that instantly killed nearly 3,000 people. The trial date will mark nearly 27 years since 9/11, 25 years after KSM was captured and 20 years since KSM’s 2008 arraignment. The primary reason for this astonishing delay is arguments regarding how much evidence was obtained, allegedly unlawfully, by enhanced interrogation — specifically, by 183 sessions of “waterboarding” in which a person is brought onto the brink of drowning, and hence deprived the defendant of due process of law.
While conceding that even the worst offenders are entitled to due process, Florack writes:
But due process and endless process are two vastly different things, whatever some in Washington want to pretend. There’s a real difference between carefully administering justice and letting a case calcify into a permanent monument to governmental indecision.
Finally, he quoted Thomas Jefferson:
A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.
October 2026 brought us another prime example: President Trump ordered the execution by firing squad of Nidal Malik Hassan, who was convicted for committing the 2009 Fort Hood massacre, killing 13 and wounding 32; as he did so, he shouted: “Allahu Akbar!” (“Allah is greatest!”) The last time an execution was ordered by a president (JFK) under the Uniform Code of Military Justice (UCMJ) was in 1961; death was by hanging.
The roots of our confusion: a seminal court case
In a 1949 case, Terminiello v. Chicago, the Supreme Court reversed the conviction of a vituperative hate merchant whose speech incited a crowd to commit multiple acts of violence. The 5-4 majority examined the indictment and found one of the nine charges unconstitutionally overbroad because it could punish lawful acts.
The offending law was a breach-of-the-peace statute that criminalized conduct that “stirs the public to anger, invites dispute or creates unrest.” The majority linked this to a legal rule that a general jury verdict is legally presumed to be based on all counts in an indictment. (A special verdict is one in which jurors are asked specific questions, i.e., in a libel case, asking (a) if a defamatory statement is false; and (b) was the statement made with “actual malice” or “reckless disregard” for the truth?)
Several dissenters rebutted this application, arguing that in the instant case there was no doubt the speaker’s remarks incited a riot, so applying a rule that presumes otherwise made no sense. Dissenters also noted that neither side raised this point at trial or in the appeals court, and that no party filing amicus curiae (“friend of the court”) briefs did so.
Justice Robert H. Jackson, also dissenting, penned the most devastating critique of the Supreme Court’s failure to protect our liberties from mobs incited to violence by a speech:
This court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
Doctrinaire logic untempered by practical wisdom perfectly describes the decisions that former attorney-general Barr cited in his AEI address.
The rising costs of our having enabled asymmetrical lawfare
A recent report revealed a 17-fold increase in rare cancers among 9/11 survivors. One cancer patient is former N.Y. Gov. George Pataki, who was governor during 9/11 and for five years after. A report prepared by the FDNY World Trade Center Health Program found that more than 9,000 people have died of illness due to the attacks and illnesses that developed since; this includes 600 firemen, nearly twice the 343 firemen who perished that day. This makes the total running tally of 9/11 fatalities over 12,000, with more certain to come, including possible multi-generational ailments.
Bottom line
Lawyers and judges may lose a war; but cannot win one. The conduct of wars and associated diplomacy lies at the heart of the Article II powers of the president discharging his responsibilities as commander-in-chief. Lawyers and judges may help preserve our fundamental freedoms by denying them to those who would destroy us.
