UNIVERSITY OF SOUTHERN CALIFORNIA Law School Professor Erwin Chemerinsky has been my colleague in the commentary business for a decade, and for the past three years a weekly guest, along with Chapman Law School Professor John Eastman, on my radio program. Together we try to make the issues of constitutional law entertaining and accessible. Erwin is hard left but brilliant, one of the intellectual architects of the Estrada filibuster, for example, and one of the self-appointed guardians of the rights of al Qaeda prisoners in Guantanamo Bay.
He crossed a line yesterday, and I called him on it on the air. He's not alone in crossing this line, but his column is recent and available on the web, so it is a perfect example. In yesterday's ] Los Angeles Times he wrote:
"On Sunday, Secretary of Defense Donald Rumsfeld quickly invoked international law in condemning Iraq's treatment of American prisoners of war . . . Rumsfeld's hypocrisy here is enormous. For two years, the Bush administration has ignored and violated international law and thus has undermined the very legitimacy of the treaties and principles that constitute the law of nations. Though we all hope, of course, for the quick and safe return of the American prisoners of war, the fact is that--unfortunately--Iraq and other nations may feel much freer today to violate international law in the way they treat war captives and the way they wage war. . . . The United States cannot expect other nations to treat our prisoners in accord with international law if we ignore it. If the United States wants other nations to live by the rule of law, it too must do so."
Not only is the argument wrong, but Erwin does not include even a routine denunciation of the idea that the Iraqis "may feel much freer today to violate international law." They ought not to so feel, and Erwin should have included that message. In fact, as Erwin put it, the article might well encourage the Iraqis to think such criminal thoughts, and to base their behavior towards our POWs on his twisted logic. If there is any restraint at all within this sadistic regime, it cannot be deep and we ought not to be encouraging its corrosion.
I pressed Erwin if he had considered that his writing could be read in Iraq and that it might have consequences. He avoided the question, and objected that I was questioning his loyalty. He avoided opining even on the morality of Jane Fonda's visit to North Vietnam so many years ago or of this sign carried in "peace" demonstrations over the weekend: "We Support Our Troops When They Shoot Their Officers." In short, Erwin had no firm opinion except that the U.S. government is violating international law.
Though he did not intend it, Erwin's piece is an invitation to the Iraqi brutes to continue in their mistreatment of our prisoners and in their underhanded tactics on the battlefield. I asked Erwin how he would feel if our post-war investigations turned up his article in "The Ministry of Justice." He scoffed at the idea. This is willful blindness about the reach of modern media, and it is not Erwin's problem alone. The antiwar/anti-Bush crowd abandoned all self-restraint months ago, but they ought not to be allowed to pretend that their actions won't have consequences abroad.
The Iraqi propaganda machine is vast and effective, as are the propaganda networks of our enemies in the rest of the world. Erwin's piece and every other bit of commentary is available anywhere there's a computer and a modem line. I watched in disbelief as POW's family was interviewed on TV a night ago, and prayed that Iraqi captors did not see it and glean from it details with which to torment the prisoner. I watch embedded journalists broadcast details of troop conditions and am shocked at the casual way the desires of the audience have overwhelmed ordinary caution.
And I read screed after screed in major newspapers about the motives of the Bush administration or the collapse of public support. With each one, I shook my head at the left's inability to exercise self-discipline even for this relatively brief period of actual combat. It is at best soft racism to assume that the enemy lacks the skill to exploit American media for its own purposes. In most of these instances, however, it is merely self-interested posing.
Erwin already raised the threat of McCarthyism in response to my criticism--the first refuge of the irresponsible in search of cover--so let me also add the ritual incantation that it is the absolute right of the left to be irresponsible, dangerous, and unethical. But the public should be heard on this matter, and the Michael Moore caucus cannot expect to endanger the lives of troops and still enjoy the acclaim--or even the patience--of Americans who know better.
Hugh Hewitt is the host of The Hugh Hewitt Show, a nationally syndicated radio talkshow, and a contributing writer to The Daily Standard.