Rounding Things Up
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.