Closing Thoughts on the Road Ahead

by Bobby Chesney

I want to close by thanking Ben for writing this terrific book, and our hosts here at OJ for sponsoring this discussion.  Before sigining off, however, I want to offer a few predictions and related observations about the road ahead.

It appears quite possible that in the near future we will substantially reduce our reliance on military detention for terrorism suspects at least insofar as they are captured outside of Iraq and Afghanistan (I predict that no matter who wins the next election, we are not going to abandon or even substantially alter our detention practices in either of those theaters). 

Assuming that this change is not accompanied by adoption of a hybrid detention framework along the lines Ben has proposed, this will result in increased pressure on DOJ to identify grounds for prosecution (I predict that no matter who wins the next election, there will still be substantial interest in preventive incapacitation rather than just surveillance of terrorism suspects (though you should listen to this story by Ari Shapiro on NPR Morning Edition for the view that FBI may be leaning in the latter direction these days as it grows into its intelligence-gathering responsibilities)). 

We may then go a substantial period without any further attacks in the US.  In that case, I predict that we will see a growing trend of criticism attacking the substantive scope of federal criminal law relating to terrorism, particularly as it relates to conspiracy and material support prosecutions, and in general a greater backlash against the prevention-oriented framework of current counterterrorism law. 

Sooner or later, however, we will again suffer a strategically-significant terrorist attack in the US (or a series of smaller attacks, akin to the Beltway Sniper, that collectively have a strategic impact).  At that point, we will experience tremendous pressure either to revert to our post-9/11 practices or perhaps even undertake more draconian measures.  When that moment comes, I hope that we heed Steve’s warning not lose sight of our past problems and abuses.  If we can do that, though, I believe the result will be to draw us toward just the sort of proposals that Ben has set forth in Law and the Long War.  I am predicting, in short, that the conversation we’ve had this week will be relevant for a very long time to come.

One Response

  1. One way that has not been tried before but that would go a long way to reminding people who make decisions about the consequence of abuses is to criminally prosecute the high-level civilians and military generals who organized the torture. 

    Next time around, persons at OLC and other places would have that marker of someone who went to or risked a federal penitentiary to bring home the fact that cavalier improvisation out of panic can be detrimental to the personal liberty of the victims of the hurbis, but also the perpetrators of that hubris.

    Apparently, there is a need for that lesson to be learned by many people who have no excuse except panic for what they improvised and put in place and let happen.  That critique is across the political branches and quite bipartisan.


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