Peter’s Two Points

by Benjamin Wittes

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.

Peter’s more fundamental critique is that my premise is wrong: Al Qaeda is not really that much of a threat and it’s certainly not worth tearing up our law books over it. This goes to one of the central paradoxes of the war on terror: The more successful we are in stopping attacks, the less people believe in the threat and the less willing they become to take the steps necessary to stop attacks. Had even a small number of the plots the government claims to have disrupted since 9/11 come to fruition, we wouldn’t be sitting here scratching our heads about whether Al Qaeda is for real or whether the threat of terrorism is overstated. As it is, however, we debate how “imminent” a give foiled attack really was, and we tend to conclude that it wasn’t all that close. The result is a growing gap between public sentiment, which tends towards complacency, and the abject terror still felt by those who read the threat reporting every day.

For whatever it’s worth, I don’t believe the threat is overstated; if anything, I suspect the opposite. I disbelieve as well that we could release all but a handful of leadership cadre folks at Gitmo without assuming significant risk. Rather, I think there’s a significant crop of people down there who mean America great harm and will act on whatever opportunities we give them to inflict that harm. And I think that the capacity of Al Qaeda or similar successor groups to generate highly-lethal personnel in large numbers will prove significant. In other words, I do think we’re facing something long-term and different in kind from previous conflicts–one that requires the generation of new legal regimes distinct from both the criminal law and the laws of war.

http://opiniojuris.org/2008/07/28/peters-two-points/

3 Responses

  1. “The more successful we are in stopping attacks, the less people believe in the threat and the less willing they become to take the steps necessary to stop attacks.”

    This is a pure figment.
    I understand that terrorism is a threat perfectly well, and my estimate of the threat is that it’s greater now than it was in 2001.

    What’s your evidence that the Bush administration’s counter-terrorism policies have been successful?

    What the evidence shows is that the Bush administration is a worse threat to public safety than Al Qaeda is: they’ve not only murdered more people than Al Qaeda has over the last seven years, they control of the world’s largest nuclear arsenal. They aren’t fighting terrorism, they’re practicing it.

    And they are doing it in violation of our own criminal laws.

  2. “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.”

    I understand that perspective but it is precisely one that is open to significant critique.  One of the key rules of international law is that a state cannot extract itself from its international obligations through internal law.  A perspective that talks about statutory adjustments to better fight in a conflict that is occurring across borders against foreigners who at a minimum are entitled to diplomatic protection by their governments, IHL and IHRL seems to stand only on one leg.  We can not just wish away things like international law because we do not control them.  What about integrative strategies that do not just sit at Justice or State but try to pull from both domestic and international law.  As we all know, international law is part of American law.  That’s what Defense does in training our soldiers.

    Also, the minimalism of process that appears to be the aim for the foreigners we seek to charge for war crimes besmirches human dignity. The push for separate and unequal third class process for these foreigners is only a thin veil to cover the fact that we intend to violate IHL and IHRL in our treatment of them.

    Best,
    Ben

  3. Professor Wittes,

    I have a theory I wanted to run by you regarding why so many people — esp. those in the international legal community — focus on the lax lata of the war on terror rather than the lex ferenda.  It seems to me that many int’l lawyers, especially European lawyers, are deeply and well-trained in determing what the law is, but not so well-trained at designing a legal system.  Rational or public choice theories, which is one example of a skill a lawyer would want to have if she were designing a legal system, is simply not part of many countries’ legal educations.  At the same time, European lawyers get a fair deal more instruction on, for example, statutory construction.

    Based on this “bias” in their education, the international legal community is more willing to use their tools of statutory construction to strech a legal norm to include behavior rather than concede that the behavior is not covered.  To concede that the behavior is not covered would drag the international lawyer into an area of less comfort — i.e., an area of proposing a legal regime. 

    In contrast, American lawyers, who have been more supportive of the Bush administration, have more training in dealing with lex ferenda.  It seems American lawyers are more accepting of legal ambiguity because there is more focus in the American academy as to what to do with such ambiguity and how to craft it to serve public goals.

    For example, applying rational choice, it just seems laughable to me that the Bush administration would purposely go out and detain people on the battlefield who are “innocent.”  There is simply no incentive for this behavior — yet many on this board think it happens on a daily basis and would stretch any norm to keep it from happening.  Meanwhile, I do deeply worry that the occasional innocent capture will be covered up by the administration, because it has every incentive to do so.

    Please note, I am not saying that what the Bush administration does is either lex lata or lex ferenda, I am just saying that there are deep systemic bias in groups for finding lex lata where none exits.

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