Rounding Things Up

by Benjamin Wittes

Well, we never got as far as interrogation or surveillance, but that’s okay. This has been a truly exceptional exchange, a model of everything the debate over law and the war on terror too often is not: civil, serious, rigorous, and respectful of the profound difficulty of the issues at hand. Many thanks to all who participated in it and to the OJ team for hosting it.

One big-picture thought in closing: We’re actually approaching some kind of synthesis here, or at least veering in the general direction of one. On the book’s basic premises, the argument is between those (like me) who believe that that congressional design of the system is essential and that judicial design dangerous but who also believe that extensive judicial involvement in the system is critical to its success and those who believe that judicial involvement is essential and that judicial design is not all that scary, but who also welcome congressional design involvement. That’s not an insurmountable divide, frankly. On detention, the argument is between those (like me) who believe that the existing detention powers of the government should be supplemented by one tailored to the current problems and those who believe that law of war and the criminal law adequately provide for and regulate detentions in the current conflict. That’s also not an insurmountable barrier, since I agree that the laws of war are, in a pinch, serviceable and Marty, Deborah, and Steve do not seem per se against any supplmental authority. Had we gotten as far as interrogation, I suspect we might have said something similar there, and recent congressional evidence of an emerging consensus on surveillance is, well, pretty striking.

The oddity is that this sort of thing goes largely unnoticed–except, it seems, on OJ–amid the intense, partisan, and ideological rhetoric surrouding these issues. The rhetoric has a way of magnifying our differences even where they’re not that big: We’re either for a national security court or against it, without a lot of discussion of what that court is. In the common parlance, Marty, for example, would be said to be against it, I for it–though the substantive differences between us on detention are dramatically dwarfed by our commonalities.

In a few months, we’re going to have a new president. I generally don’t do predictions, but I feel comfortable predicting that whether that president is Barack Obama or John McCain, he will fall smack dab in the middle of the debate in the terms we’ve been having it. He will not embrace a prosecution-only model of detention, because he will not be able to do so; at most, he will embrace a model like Marty’s and Deborah’s. And he will also not embrace the current administration’s broad approach to detention. He will, rather, be somewhere in the muddy middle–the space defined by uncertainty, discomfort, pragmatism, and consciousness of the likelihood of error. My main concern right now is that the next president have some room to maneuver in that space. This debate gives me more confidence than I had that, if he plays his cards right, he still may have enough.

Thanks again to you all.

http://opiniojuris.org/2008/08/01/rounding-things-up/

7 Responses

  1. Well Ben, there are few problems with that rosy view:

    1) The laws of war are not merely “serviceable”, they are the laws of the United States and the United Nations and have full force.

    2) Your proposals appear to be specifically designed to commit acts in violation of those laws, including several US criminal statutes.

    3) It seems very apparent that much of what you describe as rhetoric is simply factual, and equally, that much of what you suppose to be fact is simply rhetoric.

    4) Though I have not read your book, something seems to be missing from your analysis, namely, any clear recognition that the Bush administration has in fact committed a great many crimes in all of the areas you’re looking at, including all three categories of crimes under the 1945 IMT Charter designed for the Nuremberg trials.

    5) I have a theory that if in fact these considerations of design are something to worry about, perhaps we should start by simply OBEYING the existing laws, since the law only matters to the extent that it actually has effect, and a willingness to simply ignore or discard it hardly suggests that an elaborate new scheme is even worth the effort. What it suggests is a smoke screen for the ad hoc exercise of unbounded executive power — a conclusion which seems fully evident at this point in the Bush administration.

    But it’s been an interesting discussion for sure. I do have one question though:

    How many concentration camps do you suppose we would have to build before you’ll feel safe?

    And wouldn’t it just be easier to exterminate all of them?

    That would actually work after all, and the children are potentially every bit as dangerous as their parents are, especially given the propensity for vengeance in most cultures, especially the Islamic and American versions.

    If you think I’m trying to throw stones here, think again. I’m simply trying to follow your reasoning to its logical conclusions, and that, on information and belief, is a fact.

    Regards,

    Charly

  2. Thanks to all of you too for an interesting discussion.  I would draw all of your attention to James Robertson’s memorandum order dated July 18, 2008 denying the preliminary injunction sought by Hamdan to block his military commission.

    In that order he analyzes the MCA and compares its permision of coercive evidence to an old 1940 case entitled Chambers v/ Florida (1940).  I would encourage you to go take a look at that old case of 4 negroes being coerced to plead guilt to murder in a southern town in the time of segregation and Jim Crom.

    That James Robertson puts that as his reference in the MCA analysis to me is a means to remind us of the barbarity of which we are capable in the urge for security.

    Just make sure in any improvisation you try to design as advisors for whoever is the new President of in Congress that you are not just building another separate and unequal third class process – this time for foreigners (like the MCA).

    If what you are doing is going that way, well there is a great deal of bad history in this country about special process, as there is in a number of countries with “tribunal d’exception”.

    I would take this occasion to also split the hierarchy by thanking the folks who took time to make comments in the comments space.  We are merely citizens of the world but it is our efforts together that can help also influence the debates among the select elites.  Just a question of power and who you know.

    Especially thanks to Charly who has been steadfast on this stuff for many years before being steadfast on this stuff became cool.

    Peace,
    Ben

  3. No answer to that Ben?

    Your silence damns your thesis.

    Every system of preventative detention ever devised amounts to this: a system designed to imprison people, not because they had committed some crime that would warrant incarceration, but merely because the state finds it useful for some reason.

    That was just as true of the British concentration camps in South Africa during the Boer War as it was of the Nazi concentration camps, the Soviet Gulag, or US Indian reservations — each of which was systems designed by lawyers and politicians just like you.

    And here you are, making the claim, in essence, that Adolf Hitler and Joe Stalin were just really smart  leaders who were ahead of their time when it came to national security. The only REAL difference is the categories of people on your enemy list.

    You might as well design a system to reintroduce chattel slavery, because this amounts to the same thing under all the elaborate rationalizations.

  4. Well thanks for the kind words Ben (Davis), you’ve been pretty steadfast yourself.

  5. Charles,

    Lol, yes, Ben Wittes doesn’t dare respond because he trembles before your all mighty pen.  When you take his arguments and say their logical end is a multitude of concentration camps and possible genocide, I can see why Wittes dare not respond. Such logical is impeccable.

  6. Well I got news for you humblelawstudent:

    I’m not doing anything but stating plains facts, and you aren’t doing anything but displaying your ignorance, your dishonesty, your willingness to condone the disgraceful crimes of murderous thugs like George Bush and Dick Cheney, your disloyalty to the United States, and your intellectual and moral unfitness to practice law.

    And here you thought you were just scoring some cheap debating points.

    It’s been six and half years: how many more do you need to find a faint clue?

  7. That said, I suppose I should add that I didn’t just mean Prof. Wittes’ silence irt comments on his various posts, since I do understand how much time it takes to write the posts let alone answer every comment,

    But the silence I meant was his silence throughout in regard to the fact that the Bush administration has committed a great many despicable crimes; and also in regard to the laws of war generally as they touch on his proposals, which in themselves are an attempt to aid and abet some of those crimes.

    Facts are facts.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.