Oceans of ink have been spilled (some by me) cataloguing the stupidities, abuses, and horrors committed or allowed by the executive-power-obsessed Bush administration in the name of warring against terrorism: The no-due-process detentions of many innocent (as well as guilty) men at Guantanamo. The use of torture or near-torture in interrogating Qaeda leaders and foot soldiers. The sputtering efforts to try some of them before Bush-created "military commissions." Not to mention the low-level sadism and torturing-to-death of prisoners at Abu Ghraib and in Afghanistan.
But until now, much less attention has been paid to what the next administration and Congress should do with the hundreds of suspected terrorists and "enemy combatants" captured abroad and others who may be captured in the future.
The presidential candidates largely content themselves with saying "close Guantanamo," as if that would solve the problem of what to do with the 265 men held there, many of them extremely dangerous, and with the many hundreds more held in Afghanistan.
And what debate there has been on how we should go about detaining, interrogating, and prosecuting suspected terrorists from now on tends to be polarized between conservatives who share Bush's reflexive opposition to judicial oversight and liberals who want the judiciary running the show and making up the rules.
Many of the conservatives would bar courts from ordering the release of anyone labeled an "enemy combatant"--no matter how implausibly--by the military. They would also allow routine use of highly coercive interrogation methods. Many of the liberals and some conservative libertarians demand immediate release of many detainees--no matter how dangerous--who cannot be convicted in ordinary federal courts. They would also ban all coercive interrogation methods.
Now comes Benjamin Wittes of the Brookings Institution (who is a friend of mine) with a recently published book that exposes the flaws in the liberal approach as well as in Bush's. Wittes details why the next administration and Congress should devise laws to deal with suspected international terrorists that would lack "all the purity either of the administration's infatuation with presidential power or the civil libertarian love affair with judicial power."
Wittes's book, Law and the Long War: The Future of Justice in the Age of Terror, should be read by every serious analyst of the tensions between national security and human rights--including electronic eavesdropping, detentions, trials, and interrogations--in the context of potentially catastrophic terrorism.
The book is the subject of a high-powered, expert discussion and well-argued critiques of Wittes's proposals this week on Opinio Juris, a blog run by law professors. Some of them challenge the implication of the book's title that we are in a "war" at all. "Al Qaeda looks a lot less scary seven years out from 9/11," wrote professor Peter Spiro of Temple Law School. "We could safely let all but the top leaders [at Guantanamo] go without having much to fear."
Wittes's book provides an eloquent rebuttal to such rosy scenarios: Even as the Guantanamo detainees have "somehow morphed from terrorists into victims" in the minds of many in the press and the academy, and even though many of the original detainees did pose little or no danger, a number of the 265 men who remain appear to be or even admit to being eager to murder as many Americans as they can. He documents this view by providing the most complete analysis to date of the available evidence about the Guantanamo detainees.
More generally, while conceding that the terrorist threat "isn't quite a war" in the traditional sense, Wittes shows how the capacity of modern terrorists to inflict "horrors on an altogether different scale" from ordinary murderers calls for departing from the criminal-justice-only approach favored by human-rights groups and most of Europe.
His central premise is that "any proper legal architecture for this war will at once restrain the executive branch far more than the Bush administration has wanted to be restrained yet at the same time enable it far more than civil libertarians and human-rights groups find congenial."
Another premise is that we must stop seeking to divine rules for today's conflict from old precedents--with the courts exploring such arcana as what rights a prisoner on the Isle of Jersey had under English law centuries ago--and focus instead on crafting "new legal frameworks" suited to the unprecedented nature of the current terrorist threat.
Wittes offers trenchant criticisms not only of the "sometimes mindless" and even "profoundly stupid" Bush-Cheney "aggressiveness and fixation on executive authority" but also of the assertive stance of the Supreme Court, the passivity of Congress, and the ideological absolutism of the human-rights groups.
The Court, he says, has begun to engineer what could become "a tremendous shift in the balance of power among the branches of government during wartime." If taken too far, this could "end up either paralyzing our response to terrorism or corrupting the judiciary." For example, Wittes explains, if the justices end up claiming the power to oversee military interrogations, we will either have to "prohibit highly coercive interrogation in all circumstances or ... put judges in charge of it."
The failure of Congress to write comprehensive rules for this new conflict presented the justices with a difficult choice: "The alternative to some assertion of judicial power may have been an unchecked executive." But although the Court's checking of Bush's excesses may have had a salutary impact so far, Wittes says, in the long run "one needs law--law made by Congress--if judicial review is to be anything more refined than simple judicial power" unconstrained by clear rules.
The book went to press before the most recent Supreme Court rebuff to Bush, the June 12 decision requiring broad judicial review of Guantanamo prisoners' petitions for release. But Wittes correctly predicted both the outcome and "the mess the decision will leave": After more than six years of controversy and three Supreme Court decisions, we have "no agreed-upon legal standards of review or substantive law guiding the key questions: Whom can the military hold? For how long? With what kind of showing? Under what evidentiary rules?"
In dealing with such detentions, Wittes contends, the next president and Congress should scrap Bush's grossly inadequate "combatant status review tribunals," which allow neither judges nor defense lawyers. But they should also reject the demands that the government "either charge the detainees with recognizable criminal offenses and bring them to trial in the ordinary civilian courts, or ... release them," as Amnesty International has put it.
The difficulty of determining who is and is not a terrorist, Wittes explains, calls for something close to trial-type procedures for detainees who claim to be innocent. But there will be a continuing need for "some noncriminal form of detention and some trial mechanisms that stop short of the norms prevailing in American federal courts" to keep dangerous detainees "from acting on their deeply held murderous beliefs and instincts."
The most legitimate and confidence-inspiring form of judicial oversight, Wittes suggests (as have some other experts), might be full individual hearings before a special national security court made up of rotating groups of sitting federal judges, based on the model of the 30-year-old Foreign Intelligence Surveillance Court.
To enable the government to put as many Qaeda leaders on trial for war crimes as possible, the current regime of "military commissions," created by Congress in 2006, deserves more respect than it has received, the book argues. The system is much improved from the one that Bush established by executive fiat in 2001. It could be further improved by putting regular federal judges in charge.
In a chapter on interrogation, Wittes joins the consensus view that torture should remain illegal but rejects the increasingly fashionable position that all coercive interrogation should be banned. "The real question," he explains, "is not whether coercion is ever appropriate but how much coercion, how rarely, and with what, if any, degree of legal sanction." The best solution is for Congress to ban all highly coercive interrogation with "a stopgap for the true emergency." To fix accountability in the president, he could personally authorize coercive methods short of torture in individual cases by written findings filed with the Intelligence committees.
More broadly, the Wittes book couples measured criticisms of the Bush approach with warnings about the perverse effects that the civil-libertarian approach could have.
If the only way to put suspected terrorists on trial were the ordinary criminal process, the military would simply detain many of them indefinitely without trials. If it becomes too difficult to detain them, "that creates the worst incentive of all: not to take prisoners in the first place." Most fundamentally, any approach that creates an undue risk of "releasing fighters bent on killing civilians"--as some released from Guantanamo by the military have already done--"is a dubious triumph for human liberty."
This article appears in the August 2, 2008, edition of National Journal Magazine Contents.