A Few Final Thoughts and the Problem of Un-Ringing Bells…

I must confess that I’ve been a bit cowed into silence by the heavyweight detention discussion between Deborah, Marty, and Ben. At the risk of wading in, though, I think Ben’s point in his most recent post — that detention should be based upon “dangerousness in the context of a showing of some significant relationship with groups against which Congress has authorized the use of force” seems reasonable on the surface, but assumes away the problem that cases like Parhat illustrate, i.e., the demonstration of “some significant relationship.” Is it true that anyone with such a relationship is presumptively dangerous, and thereby detainable under Ben’s framework? Or is there a second showing — first that there is a relationship, and second that within the contours of that relationship, the particular detainee is particularly dangerous? If Ben means the second, then I’m far less troubled (although not completely satisfied, for some of the reasons articulated by Deborah and Marty). But if Ben means the first, then we’re right back where we started, no?

We’re supposed to start winding down this conversation, so rather than dwell on this point, I want to briefly segue to a larger question that has plagued me from the beginning of this debate: are we to judge proposals like those in Ben’s book in a vacuum? Or, in contrast, should we see these proposals through the lens of the many egregious missteps the Bush Administration has taken in its conduct of the fight against terrorism over the past seven years?

I ask this question because right after finishing Ben’s book, I read Jane Mayer’s new book, which (as I alluded to earlier) is a powerful and even-handed reconstruction of the narrative leading from September 10 to the myriad abuses of the government’s interrogation and rendition programs. As much as Ben’s book is a story about where we go from here, Jane’s book explains how we got here from there, and it’s not a pretty picture. In particular, one walks away from Jane’s book with (at least in my case) a newfound appreciation for meaningful external oversight, particularly from Congress, and particularly of the legal bases for the government’s conduct. [In that mode, I agree with Marty’s high praise for yesterday’s decision by Judge Bates rejecting the Miers/Bolten absolute immunity claims.] I don’t even think we could begin debating Ben’s framework with regard to interrogration without carefully reconstructing how things got so out of hand so quickly, or, as importantly, without seriously debating one of Jane’s central points — i.e., that the FBI had far more success in obtaining useful information through its less coercive interrogation methods than the CIA had with its more coercive measures.

And that’s perhaps where I end up. I think we all would be much better off for having had Ben in important policymaking positions in the fall of 2001. But we weren’t so fortunate. And so as easy as it might have been to endorse the prescriptions contained in “Law and the Long War” wholeheartedly back then, we have every reason to be far more skeptical and un-trusting today. I agree with Ben, ultimately, that we need a more specific and detailed framework detention statute. I agree that we need to update our surveillance laws, although not at the barrel of a gun, as has been the modus operandi of the last three years. And I agree that a more active role by Congress could lead to a less active role by the courts, and that that might not be a Very Bad Thing. But I end up largely where I started — we would be infinitely worse off than we are but for the active role the courts have played thus far, and we are already that much the worse off for how much of the important issues covered in Ben’s book have been decided behind closed doors, and closed off from any public, legislative, or judicial scrutiny. In that regard, Ben’s book moves the conversation forward simply by engendering the conversation we’re having here. But I can’t help but wonder if there are some bells that just can’t be un-rung…