2. The incentives for future lawyers and agents will be bad. Jack Goldsmith and others have argued that agents have become highly risk-averse, refusing to take actions that promote security because of the fear that the actions, even if lawful, will give rise to legal risk.
Want to know what you get when you put the lawyers and legal second-guessers in charge of anti-terrorism?
You get Indian cops who are afraid to fire on terrorists who are busily gunning down dozens of unarmed victims right in front of them. They’re not afraid of the terrorists - they’re afraid of their CYA bosses.
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Warriors fear paper bullets more than the genuine article. Wounds and death are an expected and acceptable risk; being dismissed from the service by bureaucratic fiat is not.
These same policemen had just seen their fellow officers hammered for shooting a mentally retarded man a month or so earlier for not putting down his gun when ordered.
They were probably more concerned with being “Murtha’d” for doing exactly what they were supposed to do. Much safer (career wise) to wait for orders.