Well, Ben, much as I look forward to dining with you to discuss these issues further, I won’t take that bet, because I tend to agree with you that al-Marwalah could be detained under the laws of war themselves, if the evidence could fairly be read, as you suggest, to indicate that he was engaged in combat against coalition forces under the direction of the Taliban. Such detention would, as in Hamdi, be for the purpose of incapacitating him from returning to the field of battle under our enemy’s command in Afghanistan. If and when the Taliban gives up the fight, such detention would end.

If that’s all you meant to say about al-Marwalah, then I apologize for overreading that portion of your book. I had assumed, however, that al-Marwalah was your lead example of the need to authorize detention on “premises [that] differ fundamentally from those of wartime detentions,” namely, incarcerations “designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts.” Why did I think this? Because you write that “the reason to detain men like Al-Marwalah . . . [is] that trained ‘Arab fighers’ who ‘don’t know’ if they’re Al Qaeda members pose a prospective menace to American lives.” (my itals)…

A quick note on the two latest case examples on the table in our ongoing detention debate. First, Mr. Al-Marwallah’s case is a prime example of why we shouldn’t make broad new detention policy based on the problems of Gitmo alone. Mr. Al-Marwallah may not be prosecutable for taking terrorist training pre-2001 since the criminal material support statute in effect at that time may not (emphasize may) have had the requisite extraterritorial scope. Any such lacuna in the substantive scope of the criminal law has since been corrected. Mr. Al-Marwallah, were he arrested today and gave uncoerced statements about his receipt of terrorist training, would be precisely prosecutable under at least two federal criminal laws I can think of, with few problems beyond. I believe we can handle the Mr. Al-Marwallah’s of the world today. No further legislation necessary. (As for Mr. Al-Marwallah himself, I’ll leave to Marty to detail the theory under AUMF, etc. as to what should happen now.)…

Let me start by saying that I don’t think I’ve substantially narrowed my detention criteria between the book and this discussion–though I am potentially amenable to doing so. The book is written for a general-interest audience and, consequently, at a higher-level of altitude than this discussion is taking place. Precisely to preserve the ability to have this discussion sort of more granular discussion, I wrote that the contours of the detainable class “will require careful legislative definition” (p. 163) and contented myself in the book with the most general principles for defining the class. I have, to be sure, been more specific in my discussion here as to some of the legislative criteria I might apply (emphasis on the word “might”), but I think they are well within the ambit of the principles I describe in the book.

Marty does not quote the sentence I actually intended as the centerpiece: “The core of the authority should more or less track the domestic power to lock up the insane: A person should be subject to administrative detention if he is both a member or associate of opposing forces and dangerous for that reason.” In this discussion, I have added a third prong to this two-pronged test–the impracticability of criminal trial–and I have tried to give more texture (informed by Judge Wilkinson’s opinion, Matt Waxman’s paper, and numerous conversations with Marty) to the two pre-existing prongs. But I see this more in the realm of refinement and addition of greater detail than as a broad change. That said, if it makes Marty more comfortable, I’m delighted…

Deborah poses what I think is really the pivotal question in the whole detention debate: If you design the detention regime reasonable and fairly–as I propose to do–isn’t your detainable class limited to people who are actually criminals and, if so, why not just try them as criminals? I believe, largley based on Bobby’s excellent work on this subject, that the substantive answer to her question is yes. Anyone (or almost anyone) detainable under the scheme as I envision it would, in an ideal world, be prosecutable as a criminal, for he has committed a crime. But we don’t live in an ideal world. In our actual world, there are likely to be prohibitive practical barriers to that prosecution in some cases; these are the problems that a reasonable detention scheme can constitutionally help alleviate. The debate turns heavily on how large and dangerous one believes that set of cases to be.

On the substantive side, there are likely people at Guantanamo (taking all government allegations as true for the purposes of argument) who committed no crime as the law stood in 2001. Since then, however, the laws have changed and almost any meaningful affiliation with, material support of, or training with Al Qaeda would now generate criminal liability. Bobby has argued powerfully that the problem is not in the scope of the detention authority the criminal law currently contemplates…

I’m tentatively encouraged by Ben’s new articulated test for detainability, which is not everything I’d hope for (especially if the “impracticability of criminal trial” prong is read broadly), but begins to bridge the gap.

Ben’s proposal in his book, however, is much more troubling.

My premise, and that of the judges in al-Marri, is that the detention authority Congress conferred in the AUMF — the maximum authority that the Constitution allows, per Judge Wilkinson — must be viewed as analogous to the traditional wartime detention authority, as translated to the new context of this noninternational conflict against a terrorist organization, and informed by the laws of war.

The detention authority Ben would have Congress authorize, by contrast, is one whose “premises differ fundamentally from those of wartime detentions” (p.162). In what way? Well, a “responsible” Congress “would treat these detentions openly and candidly for what they are: preventive incarcerations designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts.” According to Ben, this acknowledgement is “a psychological Rubicon we simply need to cross.”

Sorry, but I’m staying on this (constitutional) side of that line…

I’d like to explore a bit further the question of what stands in the way of reliance upon domestic criminal prosecution as the primary detention mechanism. First, however, I want to be clear that I do not think that we should entirely forgo military detention with respect to persons captured in connection with the two, relatively conventional armed conflicts currently underway in Afghanistan and Iraq, at least not when US forces are the ones involved in the capture.  I’m not sure if anyone involved in this week’s debate thinks otherwise–Ben, Deborah, and others have all referred to their being an appropriate place for the traditional approach to military detention, and I assume that this is what they have in mind.

That said, the question becomes whether to revert to a traditional prosecute-or-surveil approach or develop a hybrid framework, when dealing with persons captured outside the conventional combat setting (e.g., Boumediene and other GTMO detainees who were arrested in Bosnia).  It seems to be common ground that it is good policy, at least, to use the domestic criminal justice system if at all possible, and that the heart of the debate concerns whether there truly is, as Ben contends, a set of cases where that system won’t result in detention despite a manifest need to incapacitate a dangerous person.

That question has precipitated a recent outpouring of discussion regarding the substantive and procedural scope of the domestic prosecution system…

There seems to be something like consensus among us that the toughest remaining unanswered question relates not so much to procedure, but to the substance of who may be detained. And we have two very instructive approaches to this question – either asking who may be detained under current law (below, Marty calls our attention to Judge Wilkinson’s take, Roger to the Israelis’, and Bobby to Gabor Rona’s), or who should we be able to be able to detain in the interest of effective counterterrorism (Ben offers a concrete suggestion in his last post, and I’ve written elsewhere on this as well).

There are a few areas in which (I think we may all agree) the current law of “who” seems to match up more or less with current needs. If someone’s actually committed or attempted to commit an act of terrorism that can be demonstrated in court, the criminal law gives us plenty of authority to hold this guy (and try him). Likewise, if someone shoots at American soldiers on behalf of a foreign state (and this action is part of a more general conflict between their soldiers and ours), the Geneva Convention regime fits him fairly well, and detention is understandably authorized either under an act of Congress (like the AUMF) and/or the President’s Article II powers as informed/limited by the international laws of war…

There has been excellent dialogue and debate on this difficult issue over the past day or so. One thing is clear, whoever wins the next Presidential election will be forced to confront the issue of “preventative detention” almost immediately upon taking office on January 20, 2009.

Unlike my erudite colleagues, my simple mind sees the answer this way: try the detainees, all of them. Because this is a unique armed conflict, traditional methods of war detention are really not available - particularly as a matter of policy. We simply can not close Gitmo, and bring all of the associated problems and issues of detention into the United States. To me, preventative detention has been the real problem in Gitmo. We can not hold people indefinitely without trying them in this war. Certainly, the military commission process, in the past, has never been used for this purpose. Instead, the political branches should be working long and hard at constructing, as Ben suggests, a new court system that might better capture the nature of the threat - a mix of the law enforcement model and warfare tribuals. In legislatively creating the new court, there is the opportunity to have a new court system capture all sides of the debate. It could be the answer to achieving a real balance between the desire to promote the rule of law while still ensuring national security is paramount. The key to me, however, is that such a system must be adjudicatory in nature and function.

I believe we will be discussing the possibility of a new court over the next day or so, but it seems if properly constructed, such an Article III, civilian run, new system might be the answer to issues of habeas stemming from the Boumediene case, preventative detention, coercive interrogation, trials etc.

I have been away from DC, isolated in an office at the Hoover Institution with the internet mostly turned off, completing a short book on US-UN relations.  So I have not been participating in - from the posts I have managed to read - the quite marvelous Wittes Long War discussion.  But I surfaced long enough to find out that Elisa Massimino, long time head of the DC office of Human Rights First, and a good friend to me and to many Opinio Juris bloggers and our readers, has been named the new chief executive of Human Rights First.  This is great news for Human Rights First, and for the whole human rights community, and certainly I want to join so many other people in congratulating Elisa.  Well deserved! Press release is here.

I have no idea what you people are talking about.  Congress has no intention of standing on the sidelines while the Supreme Court micromanages Guantanamo Bay, as Rep. Lewis Gohmert (R-Tex)’s new H.R. 6615 proves beyond even the smallest shadow of a doubt.  Here is the title:

To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court will be able to more effectively micromanage the detainees by holding them on the Supreme Court grounds, and for other purposes.

And here are the operative provisions, Section 3…

There have been a bunch of challenging and thoughtful posts on detention since yesterday evening, and there are a lot of issues to address. So once again, I beg everyone’s indulgence to bunch posts and arguments together. If I’m skipping over important points in doing so, just call me on it and I’ll try to circle back.

Let me start with the broad question of what a new detention regime would look like and how, specifically, it would differ from the current system of anemic CSRT review followed by habeas litigation. In my view, the basic problem with the current regime is two-fold: first, as we’ve been discussing, the standards, protections, and procedures, are all underdeveloped and could develop badly in any of a number of ways; second and less discussed, because the CSRTs themselves are such a weak instrument, the record they generate and that the government then has to defend before a habeas court–or the DTA-review court–is a total mess. My essential argument is that both the detainees’ rights and the government’s interests would be served better by a system in which a serious process up front authorized the detention that followed. The innocent detainee would get an earlier opportunity to clear up the misunderstandings that led to his arrest. And the government, when it prevailed, would prevail with a record worthy of respect and deference from the reviewing courts. Habeas would then look more like habeas review of state convictions than like the Gitmo cases–in which the habeas courts properly understand themselves as the front-line of real review. Such a system would also require the government to think hard at the outset of each detention about how it would justify that detention in court. And it would force the courts to say early on that a detention is justified so that the executive is not out on a limb on its own for years…

Procedural safeguards and substantive detention criteria exist in a dynamic relationship. One can ramp up procedural safeguards, for example, but this may have little effect on the government’s capacity to detain if the substantive detention grounds are defined sufficiently broadly. And by the same token, an unduly strict definition of who may be detained will limit the utility of a detention system no matter how flexible its procedural features may be. Accordingly, I think that Marty is quite right when he argues here and here that this is a crucial issue.

In both posts, Marty draws attention to Judge Wilkinson’s opinion (concurring in part and dissenting in part) in al-Marri, which offers a set of detention criteria that “conform to the evolving principles of the law of war” and that “should avoid . . . constituitonal concerns” even as applied to “detention of an enemy combatant apprehended on American soil.” (slip op. at 175-76). Marty predicts that these criteria, or something like them, may become “the standard that courts will employ in the habeas cases and elsewhere.” What are these criteria?….

I suspect that, thanks to Roger’s framing and Marty’s and Deborah’s thoughtful opening salvos, we’re not too far from getting to the two big questions with regard to Ben’s proposed detention statute. I have some thoughts as well, especially as to whether we need a new hybrid judicial system to handle these cases, but wanted to wait for Ben to go first.

In the interim, I wanted to just flag a pair of curious historical footnotes, both of which tend to get overlooked in these conversations (perhaps for good reasons). We actually have two pretty interesting exemplars of preventive detention legislation, and I wonder if both provide useful lenses through which to view Ben’s proposal…

A brief attempt to frame the questions for Ben and others on the issue of preventive detention:

I think Deborah is absolutely right to insist upon distinguishing the GTMO problem from everything else. Most of the GTMO detainees have been incarcerated for more than six years. Finally, they are receiving a serious opportunity to contest their detentions in the D.C. habeas proceedings, and we should allow those proceedings to run their course before offering any statutory fixes. The GTMO regime was designed primarily for interrogation purposes, rather than for the sort of incapacitation that is the focus of Ben’s book. That explains the fairly indiscriminate collection of prisoners, based on sketchy evidence, and the manner in which the detainees have been treated there. (Imagine how different GTMO, or an equivalent U.S.-based facility, would look if incapacitation were the principal aim — it’d probably resemble the U.S.’s historical POW facilities, housing (primarily) detainees about whom we have more certainty of dangerousness, and in humane conditions.) If Ben’s book and the Parhat example are any indication, in many of the GTMO cases the government probably will not be able to demonstrate that the detainees are among those whose detention Congress has authorized — particularly if the habeas courts begin to use a detention standard similar to that articulated by Judge Wilkonson last week in al-Marri. And, as I argued a few days after Boumediene was decided, the habeas proceedings will provide almost all of the procedural fixes that Ben proposes.

Accordingly, any statute to be considered in 2009 (and Ben agrees that Congress and the new President should wait until then) should be focused not so much on the GTMO detainees, but instead on (i) the thousands of detainees we are holding elsewhere, such as at Bagram; and (ii) future detainees….

Today’s discussion of Ben’s book focuses on what kind of detention law we should have going forward. Given that I am in Israel now I thought it might be useful to offer a comparative example. Such a comparison is particularly useful when proposed legislation is under consideration and another country has similar terrorist threats.

The Israeli Supreme Court has just ruled on the lawfulness of the Israeli Internment of Unlawful Combatants Law in the case of Anonymous v. State of Israel. Here are the ten principles of detention as articulated by the Israeli Supreme Court that I think are relevant for consideration of any future U.S. detention law….

Ben’s responsive post last night on the kind of detention review he favors (other than habeas) sets up perfectly what I take it is to be our topic for the day: whether a new detention statute is needed to resolve the situation at Guantanamo Bay. And between prior posts, recent Attorney General speeches, and the reality more or less of the situation, I think it’s fair to say we’ve got two broad topics for such legislation on the table: (1) new procedural guidance, and (2) guidance on who may be detained. I’ll take up a response to Ben’s latest on the procedural point here and I hope come back to “who” in a later post.

Ben writes: “What procedural rights do detainees have? I would answer these questions differently than the CSRT-DTA system did, but right now, we have no answers to them at all.” I guess I just don’t see it that way. Let’s start with the basic habeas corpus statutes, 28 U.S.C. §§ 2243–2248. What happens after a petition is filed? Well, for example, the government has to file a return “certifying the true cause of the detention,” (§2243, ¶3); the petitioner then gets a chance to “deny any of the facts set forth in the return or allege any other material facts,” (§2243, ¶6); the court can allow either party to amend these pleadings if it wants, (§2243, ¶7); and then on to the taking of discovery if it makes any sense in the case (§2246). All this so that the court can “hear and determine the facts, and dispose of the matter as law and justice require,” (§2243, ¶8). Then there’s some useful case law on all of this. And the Supreme Court has already helpfully said (in Hamdi) that these rules are the place to go…

Before we move on to the specific questions of detention and interrogation, I’m curious about Ben’s, and others’, reactions to one other fundamental question. Orin Kerr, over at the Volokh Conspiracy, mentioned to me offline that perhaps some of our differences in this symposium are premised on our “very different assessments of the terrorist threat.” I responded that I was skeptical of this — that I assumed there was not much distance between most of us, Ben included, on the nature of the threats (plural explained below), but only on how we think Congress, the courts, the Constitution and international law should respond to such threats.

For what it’s worth, my starting assumption has been that it is important to identify and distinguish two distinct sorts of threats. First, although there is a very interesting and important debate/discussion now underway as to whether and how al Qaeda is gaining or losing strength, I assume that al Qaeda is and will for the foreseeable future remain a chronic but intermittent threat with respect to what I will reluctantly call “familiar” terrorist acts — terrible acts of violence, but roughly within the range of what the West has been confronting for the past two or three decades: incidents such as the African embassy bombings and the London and Madrid bombings, as well as intermittent suicide bombs in subways, malls, etc. Some of those terrorist acts will occur in the U.S., more overseas. Perhaps, on occasion, something more dramatic, akin to the 9/11 attacks…

Thanks to Chris for inviting me to participate in this great “roundtable.” It has been wonderful to read the myriad perspective already.  Ben’s book is thoughtful and pushes the country in the direction it needs to go: policy makers need to begin to study, debate and perhaps embrace new ways to approach the War on al Qaeda. His book is a catalyst for such debate…as evidenced within this blog.

The discussion over whether this is a war or not seems to have been answered by Ben earlier today. But I think I would go a bit further…it is an armed conflict although one, as Ben notes, we are not accustomed to fighting. Thus, the problem with labeling the conflict as one or the other paradigm (war or law enforcement) triggers completely separate legal regimes. That is where we have been for the past seven years. The fact is the fight against international terrorism is an “armed conflict” — we have respnded to the attacks of 9/11 with armed force; and clearly the battles raging in Afghanistan (and now in Iraq against AQI) are indicium of war. But we also now use the FBI, the CIA and other law enforcement entities more than we ever have before - even in “combat”…There is a real mix of law and war in this conflict. As I see it, the key point of wisdsom in Ben’s book is that neither legal regime will work if strictly applied. There is a real need to embrace a third way, or a hybrid model. In my view, as many of you know, that is something worthwhile to at the minimum, have a commission chartered to review and seriously study….

We’ve not said as much as we might about the role of the “war” model in the war on terrorism.  And so, before we move on to more specific topics tomorrow, I’d like to share a few final thoughts inspired by an article by Bruce Hoffman and Seth Jones that appears in the most recent issue of the National Interest.

Discussion of the war in Afghanistan all too often assumes a relatively simplistic model in which the Afghan government, the U.S., and their allies are engaged in conflict with a single enemy force: the resurgent Taliban, with perhaps some degree of support from al Qaeda remnants in Pakistan.  Hoffman and Jones’ article–Cellphones in the Hindu Kush [subscriber access only, alas]–provides a useful corrective to that view, emphasizing the true complexity of the situation.  They report as follows…

Like our readers, I am enjoying the terrific and sophisticated discussion on Ben Wittes’ important and highly persuasive book (My short reaction: He’s pretty much right about most things). I hate to interrupt this flow with non-Wittes stuff, but I couldn’t resist a brief note on the growing non-U.S.-related  backlash against the ICC.

Justice Scalia, deriding strict constructionism and distinguishing it from his own brand of textualism, once wrote that “I am not a strict constructionist, and no one ought to be. . . . A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

I was reminded of this quotation in reading Marty’s voluminous catalogue of laws, which he posted in response to my comment that “we do not have a lot of law here.” Allow me to play the textualist to Marty’s strict constructionism. I wasn’t talking about the number of laws or even the scope of their coverage. As Marty notes, I spend a number of pages in my book describing the many laws Congress has passed–and I spend a fair bit of time at the outset of the book as well laying out the state of the law on September 10, 2001. The comment was, rather, a reference to the collective failure of the our statutory and constitutional law to answer the questions we face with the specificity we need. I hope this is clear in context. In case it isn’t, let me hearby clarify: I do not now and have never doubted that Congress has passed many laws that arguably bear on the confrontation with Al Qaeda…

Let me first address Steve’s point about incrementalism, then Deborah’s and Steve’s tag-team argument that my distinction between statutory review mechanisms and open-ended habeas review is a false one. (I’ll address Marty’s, Geoffrey’s and Bobby’s posts in separate posts this evening.)

On incrementalism, I largely agree with Steve’s characterization of the court’s approach as incremental, and I don’t disagree either that it is a speculative claim on my part that the court’s intervention may carry significant costs. I acknowledge this point, I hope candidly, in the book (see pp. 122-123). That said, incrementalism is only a partial defense if you believe the court’s direction is wrong–ie, heading in the wrong direction slowly is, to be sure, better than heading in the wrong direction quickly, but it’s still the wrong direction. That, of course, raises the question of whether I’m right that the court’s actions are likely to have serious costs…

I want to explore Ben’s point about the desirability of having Congress craft the remaining details of how habeas review will function (now that Boumediene requires such review) rather than having judges craft those rules in the first instance.

There are indeed a raft of difficult procedural questions to be resolved in connection with the habeas review required by Boumediene.  As I discuss here, the government and the detainees recently filed briefs addressing a preliminary set of five such issues, including discovery, hearsay, confrontation, burdens of proof, and triggers for evidentiary hearings.

Judicial resolution of such questions may well result in a reasonable and well-designed detention review framework.  Or it might not.  Experience with the resulting system will tell us for sure, but that brings us to a reason one might prefer to have the legislature craft these rules in the first instance, rather than judges: it may be that we will wish to revisit these issues in light of experience, and that will be far easier to do if they are statutory rather than the result of a judicial opinion that purports to derive them from the Due Process Clause or from the constitutionally-protected aspect of habeas itself–especially if the statutory approach includes a sunset that compels Congress to revisit the issue after a certain period…

First, sincere thanks to the OpinioJuris team for inviting me to share my thoughts on Ben Wittes exceptional book; and thanks to Ben for such a well researched, well written, and provocative work.

My initial reaction to the book was that Ben has hit the proverbial nail on the head in terms of defining the policy challenge surrounding how the United States should or must frame the response to the threat of transnational terrorism.  More specifically, Ben clearly exposes how efforts to squeeze the response to this threat into existing legal frameworks has stressed the legitimacy of this response in legal, policy, and public perception terms.  My take is that Ben concludes, as the previous posts highlight, that the combined impact of this effort exposes the necessity of crafting a “hybrid” legal framework to deal with the “hybrid” threat we do and will undoubtedly continue to face.

This proposition raises so many potential points of controversy, ranging from separation of powers to the question of whether the threat is genuinely characterized as “hybrid” or “different” from what the U.S. and other states have faced in past decades.  Others have already begun discussion on these issues.  What I would like to focus on is the basic premise that an effective response to the threat of transnational terrorist threat requires a new - or hybrid legal framework.

I have my doubts. While I agree that if we try to fit the nature of this threat neatly into either a traditional law enforcement framework or an armed conflict framework, the result certainly does seem like trying to fit a square peg into a round hole.  As an interesting coincidence, I experienced this first hand on the day this online symposium began.  Yesterday I testified (out of order) as the first defense witness in the Hamdan military commission trial…

As I was saying, it is a central theme of Law and the Long War that “we do not have a lot of law here” (p.11).

Boy, that sure would be news to David Addington! If we don’t have a lot of law here, then why is it that the Bush Administration has spent the past seven years writing memo after memo arguing that it may disregard, or disingenuously construe, a whole slew of laws that constrain the President in his campaign against al Qaeda? And why has Addington crafted countless signing statements indicating that the President will circumvent Congress’s more recent handiwork?

Perhaps the more pertinent question is: “not a lot of law” compared to . . . what, exactly? Is there any previous war or armed conflict in which the Commander in Chief has been met with remotely as much law governing a military campaign? (David Barron and I argue, for what it’s worth (see pages 712-715), that a major reason why this conflict involves so much more law regulating the Commander in Chief than past conflicts is that this military “campaign” centrally involves detention and intelligence-gathering — subjects that Congress has commonly regulated — and that these activities are occurring not only on traditional battlefields overseas, but in civilian settings here at home, and affecting U.S. persons, such that the legislature has a greater interest in putting brakes on the executive.)

Let’s see…

Piggybacking (again) on Deborah’s response to Ben’s response to… (you get the idea): It strikes me that we’re having a debate over the proper role of the courts at a level of abstraction that is largely unhelpful. Ben says that he is okay with the role played by the D.C. Circuit in Parhat, for example, but that he is “uncomfortable with the open-ended role for the courts that will follow Boumediene. My acid test is whether we’re designing the system through litigation or whether we’re implementing a system with that litigation.”

I guess I just don’t see what is so open-ended, and perhaps clarification from Ben would help. The central inquiry in a habeas petition is whether the petitioner’s detention is unlawful. That’s it. Congress will of course have a lot to say in specifying whether or not the petitioner’s detention is authorized by statute, but it is then up to the courts, as it always has been, to decide (1) whether this particular petitioner falls within the substantive scope of the detention authority Congress has authorized, and (2) whether there are any constitutional problems either with the substantive scope of that authority, or with the process employed by the government in deciding that the petitioner falls within that scope. The answer in the vast majority of cases may well be “no,” especially if Congress does more than it has previously done to define the substantive detention criteria with any modicum of precision. But whether Congress so acts or not, I still don’t see how such review “threaten[s] an enormous and unwarranted expansion of judicial power in foreign and military affairs.” Indeed, there is an inverse relationship here between how active the courts will need to be and how specific Congress is. That doesn’t just strike me as the hand we’ve been dealt; that strikes me as the right way to run this railroad…

You write that you are “deeply disquieted by any substantial role for judges in the design of the systems in which they will play that key adjudicatory role.”  So judges deciding cases based on the review scheme set forth in the brand new DTA (and MCA) statute is good.  Judges deciding cases based on the review scheme set forth in the age-old habeas statute and as elaborated over centuries of common law practice is deeply disquieting? I think I need to understand in more detail here why you think there’s an important structural difference as between these options.

Deborah’s and Marty’s challenging posts throw down the gauntlet in a number of important areas. To keep this response at a reasonable length, I’m going to boil their points down to five broad arguments. I’m not trying, in doing so, to dodge or elide their other points; consider this as a first pass at a response. I’m happy to swing back and respond further or in more detail to more granular points if they–or others–want. Before I begin, however, I want to thank Marty and everyone else for the very generous words about the book, which I appreciate deeply:

First, Deborah complains that there’s less of a gulf than one would think between my criticisms of the role the courts have played and the role that I advocate their playing. I think this is wrong. To be clear, I advocate an extensive role for judges in the adjudication of contested detention issues, yet I am deeply disquieted by any substantial role for judges in the design of the systems in which they will play that key adjudicatory role…

As usual, I agree with much of what Marty says, especially Marty’s suggestion that he is almost inclined to say that this is the single volume to read to find out where we are and where we’ve been (query whether the same might also be said about Jane Mayer’s new book, but more on that later). Marty is also right, I think, to call Ben’s critique of the role of the judiciary “odd,” for reasons that he (and Deborah) articulate in some detail, and which I won’t repeat here. But I think both Marty’s and Deborah’s posts skip slightly over a point that I think bears emphasizing: the role of the courts has, in my view, been incremental — sort of an attempt at a public conversation with the political branches. So it’s not just that we’d be infinitely worse off without these decisions (as Marty suggests), or that the courts (and the Supreme Court in particular) have basically gotten it right (as Deborah suggests). Rather, it’s that the courts did exactly what we should want them to do during crisis times — speak very softly at first, but raise the volume and sharpen the tone (a) as time goes on; and (b) as the earlier decisions are ignored / side-stepped / mis-appreciated…

I will address later this morning the raft of issues raised by Deborah’s and Marty’s posts. I want, however, to briefly clarify a point that has become a little bit muddy as to my view of whether America is really at war. Several posts seem to take it as a given that I am arguing for a war model in the current conflict. Yet notwithstanding the book’s title and its reference to the “long war,” I actually argue against overreliance on the war model–and specifically against reliance on the war model as a long-term basis for strong counterterrorism actions. The final paragraph of the book describes the conflict as “a long war, a war that isn’t quite a war but isn’t quite anything else either, a war we have still not compellingly defined and may never fully define and yet will need to regulate and prosecute anyway.” Elsewhere, I describe it as “something that goes beyond war altogether” and describe in some detail the costs of relying on the war model–which was, in my judgment, inevitable as a short-term response to the immediate crisis of 9/11.

In brief, I believe the war on terror is, in some sense, a war and certainly draws on the legal traditions surrounding warfare. But a core argument in the book is that we should treat terrorism as a sui generis area of its own–different from war, different from law enforcement, yet drawing pervasively on both of those traditions. And I specifically reject the notion that the primary body of law governing it should be the laws of war.

My apologies for implying that Ben is a neoconservative, but I think that the title of my last post — “Damning International Tribunals With Faint Praise” — is accurate. Stray or not, Ben’s comment praises the international tribunals for (ostensibly) not offering defendants the same kinds of protections that defendants enjoy in U.S. civilian courts.The belief that the Rome Statute underprotects defendants is at the heart of the neoconservative critique of the ICC; Ben’s comment thus partakes of that critique, which applies just as strongly to the ICTY and ICTR’s similar procedural regimes.  The only difference is that neoconservatives oppose the (allegedly underprotective) ICC because they fear that it mayone day prosecute an American, while Ben supports the (allegedly underprotective) international tribunals because he hopes that they may one day prosecute alleged terrorists…

Thanks so much to the Opinio Juris folks for the opportunity to participate in this wonderful symposium. Ben’s book truly is indispensable — a must-read for all those interested in these important topics. In particular, Ben’s descriptions of the difficult questions, and his narrative of how we got to this unfortunate point with respect to many of them, are thorough, precise, and (most importantly) lucid — which is saying quite a lot when it comes to these debates. I am almost inclined to say that if I had to recommend a single volume to someone to inform them of where we’ve been and where we’re going in the conflict with al Qaeda, it would be this one.

Almost…

In a similar vein as Peter and Peggy before me, I want to mine two of Ben’s premises: that we are in a new kind of war and that this needs a new kind of law. I do agree in part with Ben on each of these– I think we are facing conflict of a different sort than we have before and I also think that we need legal tools that address the issues spawned by such a conflict.  But I also think that the conflict we are facing is closer to a complex intelligence and law enforcement operation than a war and that we can address these issues by adjusting and updating existing laws rather than turning this into a founding moment for a new corpus of law, a new balancing of fundamential rights, and a new set of institutions.  Our existing Constitutional tradition may be messy, but it is up to the task…

Peggy and Peter, with slightly different emphases, both criticize me for focusing too narrowly on domestic legal policy. As Peggy puts it, by doing so, I “implicitly endorse the notion that the U.S. is unique in its experience of terrorism and the challenge of crafting laws to address it.” It’s a point worth addressing explicitly.

The United States is not the first country to have to reconcile strong antiterrorism steps with the rule of law. Far from it. Yet it is important not to understate or overlook the genuinely unique features of the emerging American confrontation with terrorism–features that make a multilateral approach both necessary and, at times, profoundly difficult, features that also necessitate to some degree the hybridization of law enforcement and military powers that we otherwise try to keep distinct…

First, thanks to all for the great opening posts, and more broadly to Chris, Peggy, and the whole Opinio Juris crew for welcoming me into the fold. I’m delighted to join such a dynamic forum, and very much look forward to our exchanges ahead.

Ben suggests as a central topic to kick of this week’s discussion a broad structural question: “Does anyone think the optimal environment for executive prosecution of the war on terror (or whatever you want to call it) involves, for example, having no legislative guidance regarding whom to detain or under what rules?” Well, setting aside the whole “is it a ‘war’ on terror” question for a moment, no one I know thinks Congress has no role to play in U.S. counterterrorism law and policy. Or, with fewer negatives: Yes of course, Congress has an important role to play. I’d also wholeheartedly agree that Congress has acquitted itself rather poorly so far, remaining AWOL on critical questions of detention, interrogation, etc. long after it had become clear (for example) that this administration had some pretty radical views, both on the scope of its own power, and on what makes for effective national security policy. We’ll disagree, Ben, about what exactly Congress should do with its power, but if your book’s primary point is this structural one – no issues there. Indeed, I can’t think of anyone I’ve encountered (human rights advocate or no) who’d disagree. . .

I’m not surprised that Ben (as one of the new foreign policy pragmatists) says he’s amenable to international law as part of an anti-terror answer (assuming that that a legal fix of any description is necessary — I hope we’ll hear from Deborah Pearlstein with her argument that we don’t need to change international law, either). But it’s too bad that something along the lines of his post isn’t in the book.

Here’s why. . .

I had planned to lurk on the sidelines until the discussion of Ben’s fascinating book moved to the “need” for a new interrogation statute — I, for one, am more than happy to have “interrogation laws that operate only at the highest altitude (nothing cruel or inhumane, nothing that causes severe pain or suffering) but never come down to earth,” if by the tendentious expression “at the highest altitude” we mean “consistent with the Torture Convention.”  But I couldn’t let the following comment go, even if it is just an aside in Ben’s response to Peter:

And the more I think about it, the more I suspect that international criminal tribunals–which can get away with not offering defendants the range of procedural rights guaranteed by the Bill of Rights–may be part of the answer to the problem of terrorist trials.

This is the standard neoconservative canard concerning the ICC — though with the added twist that Ben seems to believe that, at least in terms of prosecuting terrorists, the alleged lack of due-process protections at the ICC would be its strength, not its weakness…

Thanks to Chris and his colleagues at OJ for giving me an opportunity to participate in this important discussion.

Today we’re focused on broad premises underlying the book, and in particular the utility of using the concept of war in connection with counterterrorism policy.  Peggy’s most recent post critiques the Bush Administration’s emphasis on the war model, concluding that “the framing of our current counterterrorism policy as a “war” — including the legal policies Ben effectively critiques in the book — has cost the U.S. more in terms of prestige, reputation, support from allies and cooperation from other foreign states than it has gained us.” Perhaps so, but I’d like to press on that claim a bit…

Peter makes two points, one with which I largely agree, the other with which I disagree. Agreement first:

I have no doubt that the structures we create to fight terrorism have to be reconcilable not only with the American constitutional tradition but with international law as well. While I am skeptical that a meeting of the minds between American and European sensibilities will be easy to come by, I don’t believe the United States has been well served by its international isolation on the key actions it has taken in the war on terror–any more than the executive branch has been well served by its go-it-alone posture domestically. The book focuses on domestic law not because I don’t think international law is important but because it’s something over which the United States has less short-term control. In other words, in the long run, I believe that the international community will need to significantly rethink and supplement the law of armed conflict as pertains to this kind of asymmetric warfare. And the more I think about it, the more I suspect that international criminal tribunals–which can get away with not offering defendants the range of procedural rights guaranteed by the Bill of Rights–may be part of the answer to the problem of terrorist trials. So I’m open to international law, as Peter puts it, as part of the solution. But that’s in the long run. My concern in this book was what America should have done over the last seven years and, more importantly, what it should do now. Given the problems of garnering international consensus, international law was an improbable instrument for that project. For such short and medium term questions, domestic law seems like the essential tool…

I will join the chorus of praise for this terrific book. But I want to add briefly to Peter’s critique of Ben’s premise that the current threat from transnational terrorism has us in a “long war,” by looking at what this means for broader foreign policy – one that encompasses, but it is not driven by, domestic legal policy. The book correctly, and refreshingly, recognizes two important points: (1) that addressing the threat of terrorism requires approaches that encompass domestic law enforcement and regulation as well as applications of armed force and multitude of other cooperative intelligence and military operations; and (2) that this hybrid policy approach has been – and continues to be – the hallmark of U.S. counterterrorism policy since at least the Regan administration. (I hope we can all finally retire the well-worn line of the Bush administration that “the problem with prior administrations was that they viewed terrorism purely as a law enforcement problem.”) Given those important admissions, what is the rationale to adopt the framing of counterterrorism policy as a “long war with a dangerous foe?” (p. 17)…

This is a great book and there’s a lot to chew on here.  By way of taking up Ben’s opening volley, I have two general thoughts:  1) things may need some fixing, but not necessarily at the foundational level framed in the book, and 2) to the extent things do need fixing, international law has to be in the picture.

The first point goes to the question of whether or not we’re actually in a “long war”.  As I argue here, that premise looks increasingly problematic.  Al Qaeda looks a lot less scary seven years out from 9/11.  I think that shows through in the book with Ben’s repeated use of “menace” to describe individuals who are basically foot soldiers.  We could safely let all but the top leaders go without having much to fear (as Ben notes, we certainly can keep former Gitmo detainees on the no-fly list!).  The terrorists haven’t been able to muster much of a fight lately.  Even the episode which lends itself most to arguments in favor of extreme preventive response — the liquid explosive plot to take down a dozen transatlantic jetliners — turns out not to have been much of a threat after all…

Let me start by thanking Chris for hosting this discussion, of which I’m delighted to be a part, and by thanking as well all of those who are participating. It really is a wonderful group, and I’m excited about the coming exchange.

I wrote Law and the Long War out of a sense of frustration with the debate that has developed over law and the war on terror. For several years, America has been convulsed in a very earnest discussion over what the law is, rather than over what the law should be. We are debating questions that mostly have no clear answers–what is the proper scope of detention authority? what are the limits of coercion in interrogation? what are the minimum legal requirements for terrorist trials?–as though the law as it stands today answers them fully. In doing so, many Americans–including many intellectuals–have managed to convince themselves that these questions are easy, rather than agonizingly difficult…

We are pleased to host this week a discussion of Benjamin Wittes’ book Law and the Long War. Ben’s book is a comprehensive analysis of the relationship of law and of our Consitutional structure to counter-terrorism policy. It is a book that is sure to ignite debate from all around.

Ben’s opening post is available here. The other posts will be listed in the “Recent Posts” window, below.

For some background on how this week’s discussion is organized and on the guest contributors, click the “Continue Reading” link at the bottom of this window.

Noted with awe how cool David Cameron is:

Mr Cameron gave Mr Obama a selection of CDs by the Smiths, Radiohead and Gorillaz.

Snarky comments about what music McCain would give a young, hip Liberal leader from the UK welcome.

John-Paul Flintoff writes in this Green Central column of the Sunday Times (London) of July 23, 2008, that compound interest should be banned in the interests of both global economic development and the global environment.  His word, not mine; he is unequivocal about it.  But could this possibly be a good idea?  In theory or practice?  Doubtful at best.  (Thanks Glenn for the Instalanche!)

Just in case there is some blogger fairness doctrine I don’t know about, I should mention that Obama seems to generally favor the ICC — though he obviously has reservations about U.S. membership.  Here is his clearest statement, made last October:

Now that it is operational, we are learning more and more about how the ICC functions. The Court has pursued charges only in cases of the most serious and systemic crimes and it is in America’s interests that these most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable. These actions are a credit to the cause of justice and deserve full American support and cooperation. Yet the Court is still young, many questions remain unanswered about the ultimate scope of its activities, and it is premature to commit the U.S. to any course of action at this time.

The United States has more troops deployed overseas than any other nation and those forces are bearing a disproportionate share of the burden in the protecting Americans and preserving international security. Maximum protection for our servicemen and women should come with that increased exposure. Therefore, I will consult thoroughly with our military commanders and also examine the track record of the Court before reaching a decision on whether the U.S. should become a State Party to the ICC.

Generally encouraging — until we consider a bizarre comment Samantha Power made when she was still one of Obama’s senior foreign-policy advisors…

No, that’s not a snarky question. He has consistently made comments that seem to indicate far more openness to the Court than the typical Republican.  In 2002, he voted against the appalling American Service-Members Protection Act (aka “The Hague Invasion Act”).  In 2005, he said “I want us in the ICC, but I’m not satisfied that there are enough safeguards.” In 2006, he publicly reminded the Sudanese government “that the International Criminal Court has jurisdiction to prosecute war crimes in Darfur and that Sudanese leaders will be held personally accountable for attacks on civilians.” And just yesterday he expressed a willingness to consider prosecuting Osama bin Laden in an international forum instead of in a U.S. court:

We have various options. The Nuremberg Trials are certainly an example of the kind of tribunal that we could move forward with. I don’t think we’d have any difficulty in devising an international — internationally supported mechanism that would mete out justice. There’s no problem there.

The ICC is obviously the legal heir to Nuremberg, an international mechanism that is supported by more than half of the world’s States (107, with Suriname’s recent acesssion).  And although 9/11 would not be within the Court’s temporal jurisdiction, all of al-Qaida’s attacks committed after 1 July 2002 would be. So would John McCain want the ICC to prosecute bin Laden, should he ever be captured? Inquiring minds want to know…

As I write, I am sitting on the balcony of the Castle in Karem Maharal, a few miles north of Caesarea and a few miles south of Haifa. I look out over my balcony at the vineyards drinking Tishbi wine, which has been grown here in Zichron Yaakov for decades. To my left the sun is setting over the Mediterranean Sea. The family cat is asleep on the patio and the neighborhood dog is asleep on the picnic table. A partridge slowly walks the lawn. Dogs are barking in the distance. Horse hoofs on pavement echo quietly below. One can hear a shepherd leading his flock home from pasture. Children are playing in the local playground. The stores in the village are quickly closing, as the Sabbath is fast approaching.

My accommodations could be highlighted in Architectural Digest. The rooms feature stones, high ceilings, exquisite tilework, and the art work of Udi Stuler, owner and operator of the castle. He has owned the place for almost three decades, and we talked about how the price of real estate in this region has gone through the roof in the past decade. In a word, it is peaceful here, as peaceful as one would expect from a weekend visit to the countryside in Italy or Switzerland.

From where I sit, I am looking north. Fifty kilometers (30 miles) to the north is the Israeli border with Lebanon. Hezbollah controls the southern part of Lebanon. During the Lebanese war in 2006, missiles landed a few kilometers from here. This is the other face of Israel, the face that you read in the papers….

. . . and I bet you are, too.  In a recent move ostensibly aimed at shoring up its national identity, Germany has instituted a citizenship