Opinio Juris Book Discussion: Benjamin Wittes’ Law and the Long War

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 how September 11th did–and did not–change National Security Law, the disparate group of legal mechanisms related to counter-terrorism. It is also about what the role of law in counter-terrorism should be. It is a book that is sure to ignite debate from all around. As Ben writes:

[T]his is a critique of the Bush administration, whose consistent — sometimes mindless — aggressiveness and fixation on executive authority blinded it to the need to solicit the backing of Congress and the courts for actions that were bound to be controversial  It is also a defense of the Bush administration, many of whose tactics were better grounded in precedent and more defensible than its legion of critiques allowed.

I’ll leave it to Ben to expand on those contentions in our discussion here. The scope of the book is broad, including among other topics, the legal issues concerning indefinite detention and Guantanamo, torture and the domestic and international laws of interrogation, critiques of the roles of each of the branches in counter-terrorism, and a discussion of the continuities and discontinuities of Bush administration policies with those of previous administrations.

Besides Ben and the regular Opinio Juris bloggers (including new member Deborah Pearlstein), we have gathered an impressive group of guest commentators to help us sort through these many topics, including Bobby Chesney (Wake Forest), Geoff Corn (South Texas), Marty Lederman (Georgetown), Glenn Sulmasy (U.S. Coast Guard Academy), and Steve Vladeck (American University).

In order to provide a bit of structure to our discussion, we have agreed on a rough order of when we will focus on different issues.  Today and tomorrow our posts will primarily be about two issues: the underlying premise that we are in a war on terror and Ben’s critique of the role of Congress and of the courts.

On Wednesday and the first part of Thursday we will shift our emphasis to whether a new statute concerning detention and habeas corpus is needed.

Thursday afternoon and Friday we will turn to whether new interrogation laws are called-for and, if so, what they should look like.

We will finish-off our discussion on Friday afternoon.

This  is just a timetable for what will be the main threads of discussion. Anyone and everyone is welcome to discuss other relevant issues over the course of the week. We just wanted to provide a framework for what is sure to be some of the main topics so that our discussions of these issues don’t become dissipated over the course of the whole week.

As always, we encourage everyone in the Opinio Juris community to contribute to the discussion with your own comments, questions, analyses, and arguments. (And, as always, please be civil.)

We will start things off today with an opening post from Benjamin Wittes.

We look forward to what we expect will be a lively discussion/ debate!