Getting Things Started

by Benjamin Wittes

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. This has a polarizing effect on our already-polarized politics. But more importantly, the focus on current law, rather than on designing new law, has the perverse effect of kicking the basic design questions of the architecture of America’s response to Al Qaeda to the courts. The book is an effort both to analyze how America came to its current impasse over law and terrorism and to imagine how we might break that impasse–and to propose legislative strategies toward that end across the range of issues now in contest. 

In my judgment–a judgment I’m sure will be tested over the next two days–there’s enough blame to go around for the impasse. The Bush Administration, of course, made critical errors, relying far too much on claims of its own inherent authority in situations in which it should have gone to Congress for legislative backing. But I don’t think the problem ends there. Just as the administration defined the scope of its lawful authority according to its needs (anything we need to do is lawful as a consequence of our need) many critics of the administration came to confuse their opposition to the executive power claims of the administration with opposition to the substance of the steps the administration wanted to take (anything they want to do is unlawful as a consequence of their wanting to do it). I also think that other branches of government deserve accountability for their roles. The courts, whom many commentators seem to lionize, have in my view been playing a very dangerous game–one that has actually contributed relatively little clarity to the discussion yet has threatened an enormous and unwarranted expansion of judicial power in foreign and military affairs. And Congress has not exactly been pushing for a greater role in defining the rules of the road. It has largely contented itself with carping from the sidelines.

My argument rests on three basic premises: First, that the war on terror is genuinely different from anything we’ve faced before; second, that it consequently requires new law, the development of new regimes tailored for the conflict at hand; and third, that the proper forum for this development is the Congress, the branch designed for the creation of new systems to respond to new problems.

What precisely do we need in the way of new laws? I don’t want to gum up this post with three chapters’ worth of legislative recommendations. But suffice it to say that I argue for a new detention statute (which we’ll be discussing on Wednesday and Thursday), for a new interrogation statute (which we’ll be discussing on Thursday and Friday), for a hybrid approach to criminal trials, and for wholly rethinking our approach to surveillance, which I believe is hopelessly outmoded by modern technology and communications.

So since today and tomorrow are to be devoted to discussion of the premises and to the question of whether my critiques of Congress and the courts are correct, let me kick things off by posing a question: Is anyone actually satisfied with the state of the law today? 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? Or having 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? And is anyone really content to resolve the contours of, say, our detention regime in a common law dialogue between the executive and the judiciary rather than in a deliberative and open legislative process? 

I look forward to the exchange.

6 Responses

  1. There are three “wars”, and it is not helpful to combine them into the slogan of “War on Terror”. On 9/11 the US was attacked by a special operations unit of army of the government of Afghanistan. Al Qaeda was a component of that army and government although it was mostly composed of foreigners and integrated in a way that only makes sense in Afghan tribal tradition and Shari’a. The “planes operation” was approved by Mullah Omar and the Taliban. Congress then authorized military force against the “countries, organizations, and persons” responsible for the attack.

    One war is with the government in control of Afghanistan at the time of the attack. That government now operates from across the Pakistani border, but it still has forces in the field and some control of rural territory. A second war is with the “organization” al Qaeda that directly planned and executed the attack, which is also in Pakistan and is closely connected to the Taliban government in exile, but has a more distinct identity once it was expelled from Afghanistan.

    What is then left is the “War on Terror” when considered like the “War on Drugs”. It involves some military, some intelligence, and some law enforcement activity against a generic threat. One problem is that Terrorism is not a particularly useful label since some of the enemy activity is not terrorist at all. The attack on the USS Cole was clearly a legitimate military attack, but was mislabeled as terrorism by the US. “Terrorist” has become simply a bad name we use for our enemy instead of the “Nips” of WWII. Sometimes the enemy uses terror and sometimes they don’t. They remain the enemy when the use military tactics, while other groups that use terror elsewhere in the world are not part of the war.

    Three different “wars” may require three different legislative and legal responses. Some enemy may be entitled to POW status, some may be “unlawful enemy combatants”, some may be simple criminals. The administration made the mistake of creating one set of rules and one category for everyone, but the solution is not to create one different category or process for everyone, but rather to do more detailed analysis. This is, of course, more mental work than a lot of congressmen would like to invest in the problem, but you will certainly not get a decent answer if you give them an out by suggesting that the problem is simpler than it really is.

  2. Howard – I think that you’re spot on with the need to identify whether we’re in international or non-international armed conflicts.  Unfortunately, our courts and everyone else seems to think that one-size does fit all, but at a different point than the Bush Administration.  I think that the analysis needs to go further in order to be workable, however, and address a lot of previous unconsidered questions.  For example, a combatant is someone who directly participates in hostilities.  To the best of my knowledge, no one has ever attempted to define “hostilities.”  Until we come up with a workable definition, there’s no practical way to determine whether folks like al-Marri are common criminals or unprivileged belligerents.  Likewise, we need a clearer matrix for determining whether a terrorist attack has a sufficient nexus to an on-going armed conflict or whether it is an isolated occurence.  While I agree that we need to start picking apart the “War on Terror” into its components, we have to address the underlying conceptual problems in order to have the structure remain useful.

  3. Hi Ben,

    Well I disagree with your premises and your conclusions, and I think your questions are misleading. You ask:

    “Is anyone actually satisfied with the state of the law today?”

    I don’t see any reason to suppose anyone is more or less satisfied today with the law in any area than at any other point in time, but this much is certain — the law is what it is. In this context, the laws are in fact quite clear, and it’s equally clear the Bush administration has been violating the applicable laws from the start.

    “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?”

    No — I think the administration needs to obey the laws, in particular, the IMT Charter, Hague, and Geneva.

    “Or having 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?”

    What is or isn’t down to earth is beside the point: it is a crime to torture or assault prisoners.

    “And is anyone really content to resolve the contours of, say, our detention regime in a common law dialogue between the executive and the judiciary rather than in a deliberative and open legislative process?”

    Again: the process is what it is, and it consists of all three branches. The issue here isn’t whether or not the legislature should be involved, it’s whether the executive may commit crimes in violation of the laws enacted by the legislature. The Bush gang are WAR CRIMINALS in exactly the same sense that Charles I of England and Adolf Hitler were war criminals.

    I don’t buy the need for special courts at all. Both the military justice system and the article III courts are perfectly adequate to prosecute crimes, including war crimes pursuant to 18 USC 2441.

  4. The essential question is whether the proposal of a new series of legislative solutions is a means of addressing something or is merely another improvisation in national security law.

    ” 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? Or having 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? And is anyone really content to resolve the contours of, say, our detention regime in a common law dialogue between the executive and the judiciary rather than in a deliberative and open legislative process? ”

    I believe that these questions are really straw men. 

    On the first question, there has been treaty, legislative and regulatory guidance regarding whom to detain and under what rules for at least 60 years.  It is the reasons for departing from that experience that is the issue not the lack of legislative guidance.

    On the second question, the tactic of saying a law is not clear in order to do something that breaches that law is an old game.  Then one can write a new law that retroactively reins in the illegal prior act.  Again the point is that the will was to ignore domestic and international precedents on what is improper treatment of detainees.  No legislative fix will get one around that reality as the next President will seek to do that too if they want to around the new legislative fix.

    On the third question, I am content for that process to be worked out with the courts simply because the Executive and the Legislature have shown a particularly perverse obliviousness to the treaty obligations of the United States.  At least the courts have a sense of a need to think about these obligations.

    The essence of the question is whether we wish to have a policy of cruelty (Alberto Mora’s term).  If we wish a policy of cruelty than legislative tracks can be developed as a matter of national security law to place the persons we want to be subject to that policy of cruelty in a hermetically sealed environment in which we can do what we want with them, then hold them indefinitely, or kill them under that legal process.  In doing this, we will be ignoring all of our international legal obligations, but that may be what people want to do in a policy of cruelty.

    And as we think about that, we need to keep in mind that all those who worked so hard to put in place a policy of cruelty in violation of law are still around and will be around for years to come.  They do not want us to see what they have done because it is awful and on so many levels.   

    I fear that the clear interest of those who have put in place the torture regime for self-preservation will inevitably lead them to subvert all non-criminal structures for accountability. Inspector Generals and other reporting mechanims are made to only have consequences at the level that preserves the highest principals. Legislative drafts to counteract court decisions that are resistant to the torture regime will always have as their central characteristic the preservation of the autonomy of the principal proponents of the torture regime. Co-opting of resistance in Congress and the courts is the vital task of those who would put in place the regime.
    I fear that mechanisms that are ostensibly for finding the truth will be turned into tools for hiding the lies. As we watch the morphing of the adjudicative process from the Presidential Military Order, to the Military Commissions Act, and now to a bruited National Security Court we have a sense that tribunal d’exception are being elaborated at each step to create hermetically-sealed structures through which the truth about detainee treatment will never be allowed the light of day.
    One particularly perverse example of the subverting of mechanisms is in those who would seek the creation of a Truth and Reconciliation Commission for torture as a solution to the problem of access to the truth as to what has gone on. Immunity would be exchanged for truth. Yet, the Truth and Reconciliation Commission that might be created in the United States is not one between those who have been victims and those who have been perpetrators within the United States polity – the typical case in other settings in which such commissions have been put in place such as South Africa, Rwanda, Sierre Leone, Liberia, and Chile. Rather the reconciliation risks being done between Americans who acquiesced in the actions of the perpetrators of the torture with other Americans who resisted the actions of the torturers – but little or no reconciliation for the foreign victims of the American torture. From the point of view of the person who was tortured, the effect is that we as Americans come to some sense of reconciliation with our selves – without providing accountability about our perpetrators that is meaningful to that foreigner who is the victim of our policy. That is not Truth and Reconciliation in the sense of the traditional national tribunals. Such a Truth and Reconciliation Commission is merely a mechanism to manufacture American immunity in a domestic structure. It would be possible to make such a tribunal an international one as a treaty between states for example, but making it international only dilutes the American role at the center of the torture regime. Ironically, the internationalization may be a further means of immunizing the perpetrators.
    The singular problem – not really seen since Nuremberg – is that the perpetrators of the criminal act are persons of one nationality (garnering allies in the world) who are perpetrating their acts of torture on persons of other nationalities and citizenships in a very physically diverse space. The unity of torture, nation, perpetrator and victim that permit meaningful reconciliation in one geographic space is not available. For these reasons, a Truth and Reconciliation Commission appears to be a sham process whose true aim is neither Truth nor Reconciliation but aimed at creating immunity (either legislative as part of the creation of the structure or through Presidential pardons) in a domestic law setting. In a time of Orwellian use of language, this further improvisation merely becomes a further example of perversion of accountability – brilliant but still perverse. We should resist such improvisations.
    The second alternative being bruited is a committee similar to the Church Committee in the 70’s with broad investigatory powers. The central problems with this approach is that the issues of the access to the truth will remain and the solutions that come out of such a process will be the creation of legislation that will only address future situations. Those who have tortured will again not be held accountable. We should resist this kind of immunity also.
    The obvious concern with U.S. domestic criminal prosecution is that the lever for prosecution – the federal prosecutor – is a tool of the U.S. Department of Justice which has played a principal role in creating a series of dubious analyses that provide a legal regime for the torture. The consistent resistance of Attorney Generals to undertake investigations or prosecutions of persons presently or formerly within the Executive departments suggests that such criminal prosecution is not feasible. I am of the view that the Attorney General resistance is not a structural resistance but is a resistance based on political will. The Attorney General, just as all political persons, are responsive to power. Through the garnering of political will across all levels of the United States polity it is simply possible to cause the Attorney General to change his/her mind. We must also recognize that at some point the resistance of the Attorney General to any actions to investigate and prosecute torture raises the question of Attorney General complicity in the torture. Whomever has appointed the Attorney General of the United States the person is the Attorney General of the United States. I am of the view that with sufficient political will demonstrated, such criminal prosecution can be started by the Attorney General in several ways whether through US attorneys, special counsels, or independent counsels. The mechanisms are present, it is merely us having the resolve to require action from our prosecutorial corps.
    I recognize that in the end, the President of the United States may issue blanket pardons to all concerned and try through that mechanism to provide a surefire means for self-preservation for all those involved. The President’s constitutional power is significant. However, while venerated, the President’s pardon does not subtract the perpetrators of torture from the obligations of the United States under international law. Thus, even with a presidential pardon, it is foreseeable to have persons who were pardoned be charged by other countries for violations of the absolute ban on torture. Moreover, with sufficient political will, it is possible for the United States to abstain in a vote of the Security Council to refer the matter of U.S. torture to the International Criminal Court and – through that mechanism – provide an international tribunal adjudicative body who is not bound by U.S. Presidential pardons. As has been noted by Kevin Jon Heller over at Opiniojuris, there is also the possibility that states members of the International Criminal Court could refer Americans on their soil to the ICC for crimes perpetrated by those Americans in those states. As evidenced with the recent charges against the President of Sudan – a non-signatory state, the International Criminal Court is drawing the world’s attention to the point that no one (not even a sitting President) is above the law. As noted in the Chautauqua Declaration of August 2007, the issue at hand is merely one of political will on the international plane, similar to the issue of political will faced domestically for U.S. domestic criminal prosecutions. The trumping by pardon of accountability in the U.S. domestic setting does not end the discussion. Rather it evidences the failure of complementarity, calling us to seek international tribunals as a solution.
    I would prefer that the United States not find itself in a situation where it would have its leaders hailed before international criminal tribunals if possible. The United States court system has sufficient independence and neutrality to be able to address criminality at the highest level of the United States in a manner that is both fair and just. Moreover, given all the forces described above that push towards the denaturing of American institutions in the pursuit of self-protection by the principals of the policy of cruelty, the therapeutic process of U.S. criminal prosecution serves as a means to redress those institutions that have been pushed askew by the perversion. It is a way to send a message to the world and to our future generations that the United States can rectify its departures into barbarity by even its most highly exalted leaders.


  5. I agree with Howard Glibert that more detailed and objective analyses are in order. There are still gaps in forging the proper framework for these issues. Moreover, I would hate to see this devolve into the identity politics of intelligence analyses, as it has intermittently. I look forward to reading Benjamin Wittes book. And it’s great to see the potential for Opinio Juris forums because I learn a great deal from all of the current authors.



  6. Ben, 

    Great book.  I’m curious about your second and third points.  You state that the war on terror “requires new law, the development of new regimes tailored for the conflict at hand; and… the proper forum for this development is the Congress.”  

    I accept these points, but am curious about how you can overcome the status quo bias?   It seems that the Congress is content to prefer the status quo, even in the face of potentially beneficial reforms.  The status quo, is a no risk proposition for Congress, whereas implementing reforms in detention/interrogation/surveillance all have potential political costs.  Those costs can include upsetting their constituents or making the “wrong” reform choice. 

    So lets couple those potential political costs, with interest group advocacy.  Interest groups, at least on the detention issue seem to favor reliance solely on the criminal justice system, and when faced with a choice between the current regime and a system of administrative detention would likely favor the status quo.  While I haven’t seen the choices framed this way, I imagine that interest groups opposed to Guantanamo would prefer to continue their fight against it (they seem to be winning that fight), than to fight against a new system.  On the other side of that equation are those who decry recent Supreme Court decisions as judicial activism, with the courts overturning the original (and flawed MCs), portions of the DTA, and portions of the MCA.  Such critics will argue that even when Congress acts, the expressed “will of the people” is not sufficient for the courts.  

    The point I’m driving toward is representative of the last seven years of inaction.  There are strong social and institutional forces which favor the status quo.  No policy change occurs until the building pressures can overcome the weight of the status quo.  For the most part, the policy changes we’ve seen over the last seven years were in response to court cases, and as you point out in the book were not the comprehensive reform necessary for the long term.  

    Given this history of non-reform, I’d be interested in hearing how you see legislative action coming about?  Will it take a triggering event, or is a change of administration (with a reform minded President) enough?  

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