October 6, 2008 | Commentary on Department of Homeland Security

When whales trump security

It's a dangerous world out there. Iranian mullahs push forward their missile and nuke development programs while musing about a world without Israel ... or America. Russia rattles its saber, invades Georgia, plants its flag in the Arctic and dismisses the United States as a has-been superpower. Islamists wage a "holy war" against "the Great Satan" with firefights in Afghanistan, bombings in the Middle East and plots around the world.

Perilous times, indeed. And while America is at war, environmental extremists are on a mission, too. Just not necessarily on our side.

Increasingly, environmental organizations have opted to advance their agendas with a single-mindedness that borders on blindness. Zealous dedication to The Cause has led them to wage legal battles even when victory means compromising national security to achieve little more than symbolic advances in environmental protection. Alarmingly, they have found common cause with a judiciary that has lost a sense of proportionality.

Case in point: The Navy has a whale of a problem. It uses sonar to detect underwater dangers and to navigate its own submarines. But sonar may adversely affect the navigational ability of whales and other sea creatures. In five different cases, environmental groups have sued the Navy to restrict testing low- and medium-range sonar frequency arrays.

The Navy tried to address the issue long before any suits were filed. Working with the National Marine Fisheries Service, it developed 29 operational procedures to protect sonar-sensitive creatures. For example, when naval ships detect sea mammals within 200 yards during training exercises, they shut down the sonar immediately. Scientific experiments by the Navy determined that a 200-yard buffer minimizes the risk that whales will become disoriented by military sonar.

But instead of deferring to the service's scientifically-based buffer zone, a U.S. District judge decided the Navy must turned off its sonar at a range of 2,200 yards. The new buffer zone - more than a mile-and-a-quarter radius - appears based on nothing but the whim of the court. The Navy called the restrictions "crippling."

As a result of this decision, the commander of the USS Ronald Reagan Strike Group recently had to slash sonar training. Meanwhile, China continues to build its super-quiet diesel submarines that are harder and harder to find - even with sonar up and running.

The Navy is not the only service losing "lawfare" battles to the enviros. Earlier this year, a U.S. district judge ruled the Pentagon violated the National Historic Preservation Act (NHPA) by failing to evaluate how a new air base, the Futenma Replacement Facility, might affect the Japanese dugong.

Since NHPA is intended to apply to historical property, not animals, the court's decision is as strange as the unusual mammal it purports to protect.

More than odd, the ruling undermines security. A joint statement by U.S. and Japanese officials "reaffirmed that completion of the Futenma Replacement Facility ... by the target date of 2014, is the key to ... the overall realignment plan for Okinawa," including relocation of a Marine Expeditionary Unit to Guam. The actions of an activist judge have now all but ensured this vital process will not be complete by the deadline.

Worse, the dugong decision may create a new opening for environmental activists to target other U.S. bases around the world, re-labeling arcane animals as historic relics that must take precedence under the NHPA.

Judges gone wild is a symptom of a bigger problem. In the end, the greatest threat to American security may be constituent politics that puts narrow self-interest above the common good.

"Lawfare" advocates a constituent concern regardless of the cost. As long as stakeholders advance their agenda, nothing else matters. This problem can get out of control when judges cultivate a culture of litigation and creative interpretation of law.

The activists can rightly argue they are just doing their job, lobbying for their thing. Government, however, is supposed to be about more than just the sum of constituent politics.

Lawmakers have an obligation to give us laws that will keep us all free, safe and prosperous. Courts are obliged to protect us from those who would violate or abuse the law.

But when activists hijack the judiciary and advance one goal at the expense of another, justice is perverted. And when government's fundamental obligation to "provide for the common defense" falls victim to perverse court rulings, the nation's future is at risk.

James Jay Carafano, a senior research fellow for national security at The Heritage Foundation, is the author of the books "G.I. Ingenuity" and "Private Sector, Public Wars."

About the Author

James Jay Carafano, Ph.D. Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow

First appeared in Modesto Bee