LAW AND THE LONG WAR: THE FUTURE OF JUSTICE IN THE AGE OF TERROR
By Benjamin Wittes
The Penguin Press, 305 pages, $25.95
This book’s importance rides on the accuracy of its titular assumptions. Are we now fighting "the long war"? If not, then Benjamin Wittes merely charts a sensible course for mopping up messes of George Bush’s making.
If, on the other hand, we really are living through "the age of terror," the book delivers a blueprint for salvaging both our security and the Constitution’s integrity in the face of towering legal dilemmas.
A Brookings Institution fellow and former Washington Post editorial writer, Mr. Wittes is one of a new crowd of thinking centrists trying to plow the ground between unitary executive fanatics on the one hand and doctrinaire civil libertarians on the other. In the great but recently decimated tradition of moderate foreign-policy Republicanism (doesn’t even Richard Nixon look just a little bit better now?), with the neocon self-immolation and the continuing inability of the True Left to step up to the task of actual governance, this group should have openings in McCain or Obama administrations alike.
Their ascendance couldn’t come too soon. Mr. Wittes works from the premise that bringing Congress on board would strengthen the president’s anti-terror hand, to the end of molding a "stable long-term architecture" to govern the key issues of detention, interrogation and surveillance. Each, in his view, should be the subject of robust legislative oversight.
Even in its currently degraded state (which Mr. Wittes carefully acknowledges), Congress has the tools to make the choices, or at least to establish parameters in which to make them. Congress, for example, could craft accountability mechanisms for data mining and "enhanced" interrogation techniques, both of which Mr. Wittes deems necessary components of any "honest" anti-terror regime.
Among other virtues, the approach takes anti-terror policymaking out of the courts. The Bush administration’s constitutional overreaching has played to the judicial hand. In a series of recent rulings that Mr. Wittes deftly digests for an intelligent lay audience, the current Supreme Court has laid the groundwork for an unprecedented role in national security policymaking.
Mr. Wittes persuasively sketches the risks of a "big judicial footprint" in this context. Judges hardly have the expertise and the flexibility required to manage military conflict. War simply doesn’t compute in the judicial process. The courts end up either giving the president too free a hand or unduly restricting his discretion in a way that undermines imperative interests of state.
That is, assuming it’s war. If it’s a lesser challenge, something more like law enforcement, the courts are well equipped as partners in anti-terror efforts, with some allowances for the charged context. Spring bin Laden on a technicality? Not going to happen!
IT’S NOT MR. WITTES’ purpose here to establish that terrorism presents a continuing threat of unprecedented proportions. Leave aside the now familiar factoid that more Americans drown in their own bathtubs than are killed by terrorists. Aside from a single, spectacularly successful attack on downtown Manhattan, terrorists haven’t been very effective of late, or at least no more effective than they had been pre-9/11.
The threat-level premise trips Mr. Wittes up in some of the details. To back up his proposal for the continued detention of captured Taliban and Al Qaeda (wisely, somewhere other than Guantánamo, and with better procedures to protect against sitting on the innocent, on the model of civil commitment procedures for confining the mentally ill), Mr. Wittes repeatedly characterizes current detainees as a "menace," who if released will act on "their deeply held murderous beliefs and instincts."
At the same time he concedes that most are just the "cannon fodder of international jihad." Their release is unlikely to pose much of a threat, even if they do end up back on the battlefield in Afghanistan. They do a lot more damage to the U.S. in terms of lost international prestige just by remaining in Guantánamo than they could ever do as soldiers.
Mr. Wittes goes wrong in assuming that these policy choices are ours alone to make. Domestic opposition to the scope of anti-terror practices has been tepid and late in coming. The real driver in discrediting the Bush approach has been international opinion: Guantánamo early on became a global byword for anti-terror excesses. It’s been America’s allies who have pounded the table loudest on behalf of individual rights, and any substitute framework for fighting terrorism will require the world’s imprimatur as well as Congress’. That means international-law answers on top of domestic ones.
There’s a touch of hubris in Mr. Wittes putting the task of establishing the new framework on a par with the writing of the Constitution—"In this project," he writes, "we are the Founders." If that’s the scale of the challenge, I’m glad Benjamin Wittes is on the case. But let’s hope it’s not quite that serious, and that his proposals, instead of coming just in time, have come along a tad too late.
Peter J. Spiro, who teaches law at Temple University, is the author of Beyond Citizenship: American Identity After Globalization (Oxford). He can be reached at firstname.lastname@example.org.