Curtis Bradley on Benjamin Wittes’ Law and the Long War
In an important new book, Law and the Long War, Benjamin Wittes, a fellow and the research director in public law at the Brookings Institution, critiques what he calls the “legal architecture” of the war on terror. He finds fault with many players: with the Bush administration, for its “consistent — sometimes mindless” fixation on executive power and its repeated unwillingness to seek support from Congress; with Congress, for not asserting itself; with the administration’s critics, for attempting to deny the White House the flexibility it legitimately needs to fight the war on terror; and with the Supreme Court, for using ongoing legal disputes “to carve itself a seat at the table in foreign and military policy matters over which it has [had], for good reasons, a historically limited role.” Wittes’ purpose, he explains, is to “shake somewhat the certainty” of both the executive-power enthusiasts and the administration’s critics alike. He also seeks to move the debate beyond formal arguments about what is and what is not allowed under existing law toward consideration of a new legal regime that would provide the government with needed flexibility while protecting individual liberties.
I am sure that this is an essay–and a book–that will interest many Opinio Juris readers. So check out the essay (if not the book) and start thinking-up some comments as Ben Wittes and others will be joining us next month for an Opinio Juris symposium on his book.