Wittes’ Law and the Long War: Wise Counsel for the Age of Terror (If That’s What We’re In)

by Peter Spiro

Here’s my review in the New York Obsever of Benjamin Wittes’ new book, Law and the Long War: The Future of Justice in the Age of Terror. The book is a must read for foreign relations law specialists, in many ways a companion volume to Jack Goldsmith’s The Terror Presidency. Where Jack gives us the inside acount, Ben’s represents the think-tank perspective, longer on prescription (in highly accessible form). Both are strong proponents of congressional participation in anti-terror policy. If there’s a weakness, it’s that neither pays much heed to international law as a part of the answer; and both assume that we are in fact in a “long war”, which I think is at least debatable.

I’ll have more to say during our online roundtable on the book in July. In the meantime, I highly recommend it.


One Response

  1. What Ben and Jack seem not to be able to address is what do you do when Congress lies to the American citizen to preserve their elected spot? Sorry to speak to the venal part of the Congressional soul, but I know of situations where in the heat of the political moment, Congresspersons were all gungho on torture. When asked about what they knew and when they knew it, the Congresspersons blithely denied knowledge. And then a few years later, we find out that in fact they were up to their elbows in that. What is a citizen to do about that situation? Move to the district and vote against that Congressperson?

    Why is the American Congress to be considered so particularly special and deliberative that it will not throw out the baby with the bath water in any of these efforts – as have Parliaments in periods of panic in various countries. If recognizing the humanity in your enemy is perceived as being “soft on terrorism” or recognizing international law obligations is perceived as being a traitor, what holds back the barbarians in Congress who can exploit our fears?

    I fear Benjamin Wittes and Jack Goldsmith and others who gain credence in the current atmosphere are really not centrists or reasonable persons. Rather, they are centrists only if one is in a certain echo chamber within the United States discussion class. Step outside of the space and what you might hear is that we are in a period of repression (like we use to talk about in South American dictatorshps) and that this is a discussion of options as to the type of repression to be done – not a debate including the questioning of the premise for the repression.

    Indicators of a period of repression might be that both the Democratic and Republican candidates are in favor of an expansion of the death penalty – no disagreement between them. Or the Heller decision. Or the reaction to Boumediene. Or all the euphemism and obfuscation that is permitted on torture. I think a period of repression is a more apt description of our time than a period of War on Terror.

    So I hope we look to the irrepressible ones. The ones who call us out on the insanity – not the ones who are trying to make the seats more comfortable.



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