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.

Related Posts

• November 4, 2008 -- Where Have I Seen the NYT’s Detainee Data Project Before …? And Is the Times Implying that It’s Okay to Hold Some Detainees Without Trial?
• August 2, 2008 -- Law and the Long War: Closing Post
• August 1, 2008 -- Rounding Things Up
• August 1, 2008 -- A Few Final Thoughts and the Problem of Un-Ringing Bells…
• August 1, 2008 -- Al-Marwallah’s Ears Must Be Burning
• July 31, 2008 -- Quick al-Marwalah Follow-Ups
• July 31, 2008 -- More Detention Cases
• July 31, 2008 -- Al-Marwallah and Standards for Detention
• July 31, 2008 -- So Are They All Just Criminals?
• July 31, 2008 -- The al-Marwalah Detention
• July 31, 2008 -- War Zones, Substance, and Procedure in Terrorism Prosecutions
• July 31, 2008 -- Prevention
• July 31, 2008 -- Try the Detainees
• July 30, 2008 -- The Forgotten H.R. 6615
• July 30, 2008 -- Thoughts on Detention
• July 30, 2008 -- Judge Wilkinson and the Ambiguity of the “Conduct that . . . Aims to Harm” Criterion
• July 30, 2008 -- A Brief Aside on Detention: Alien Enemies and the EDA
• July 30, 2008 -- What Should a 2009 Detention Statute Look Like?
• July 30, 2008 -- The Ten Principles of Detention
• July 30, 2008 -- Speaking of Detention
• July 30, 2008 -- Assessing the Threat: One More Meta-Question for Ben and the Group
• July 29, 2008 -- Congress in the War on al Qaeda
• July 29, 2008 -- Complexity in the Afghan-Pakistan theater and the Role of the War Model in the War on Terrorism
• July 29, 2008 -- Some Additional Thoughts
• July 29, 2008 -- Responding to Steve and Deborah
• July 29, 2008 -- Should Judges or Congress Elaborate the Procedural Details of Habeas Review?
• July 29, 2008 -- Push a Square Peg into a Round Hole, or Build Another Hole?
• July 29, 2008 -- Not Enough Law? Compared to What?
• July 29, 2008 -- The Purpose of Habeas Corpus
• July 29, 2008 -- Back to Ben on the Courts
• July 29, 2008 -- The Role of the Courts
• July 29, 2008 -- More on the Role of the Courts in the “Long War”
• July 29, 2008 -- A Point of Clarification
• July 29, 2008 -- Not All Hearsay Rules Are Created Equal
• July 29, 2008 -- The Real Lessons of Law and The Long War
• July 29, 2008 -- Is Messy Constitutionalism the Enemy of Effective Strategy?
• July 28, 2008 -- A Few Thoughts
• July 28, 2008 -- Reading Ben’s Book
• July 28, 2008 -- To Ignore International Law Is To Dismiss It
• July 28, 2008 -- Damning International Tribunals with Faint Praise
• July 28, 2008 -- The “War” Model, Iraq’s Role, and the Need for Strategic Focus
• July 28, 2008 -- Peter’s Two Points
• July 28, 2008 -- Don’t Let the Legal Policy Tail Wag the Foreign Policy Dog
• July 28, 2008 -- Wittes’ Law and the Long War: International Law Goes Missing
• July 28, 2008 -- Getting Things Started
• July 28, 2008 -- Opinio Juris Book Discussion: Benjamin Wittes’ Law and the Long War
• July 25, 2008 -- Discussion of Wittes’ Law and the Long War Starts This Monday
• June 27, 2008 -- Wittes’ Law and the Long War: Wise Counsel for the Age of Terror (If That’s What We’re In)
• June 18, 2008 -- Curtis Bradley on Benjamin Wittes’ Law and the Long War
• May 21, 2008 -- Previewing Benjamin Wittes’ New Book on Law and Terror and Guantanamo