Ben’s responsive post last night on the kind of detention review he favors (other than habeas) sets up perfectly what I take it is to be our topic for the day: whether a new detention statute is needed to resolve the situation at Guantanamo Bay. And between prior posts, recent Attorney General speeches, and the reality more or less of the situation, I think it’s fair to say we’ve got two broad topics for such legislation on the table: (1) new procedural guidance, and (2) guidance on who may be detained. I’ll take up a response to Ben’s latest on the procedural point here and I hope come back to “who” in a later post.

Ben writes: “What procedural rights do detainees have? I would answer these questions differently than the CSRT-DTA system did, but right now, we have no answers to them at all.” I guess I just don’t see it that way. Let’s start with the basic habeas corpus statutes, 28 U.S.C. §§ 2243–2248. What happens after a petition is filed? Well, for example, the government has to file a return “certifying the true cause of the detention,” (§2243, ¶3); the petitioner then gets a chance to “deny any of the facts set forth in the return or allege any other material facts,” (§2243, ¶6); the court can allow either party to amend these pleadings if it wants, (§2243, ¶7); and then on to the taking of discovery if it makes any sense in the case (§2246). All this so that the court can “hear and determine the facts, and dispose of the matter as law and justice require,” (§2243, ¶8). Then there’s some useful case law on all of this. And the Supreme Court has already helpfully said (in Hamdi) that these rules are the place to go…

Before we move on to the specific questions of detention and interrogation, I’m curious about Ben’s, and others’, reactions to one other fundamental question. Orin Kerr, over at the Volokh Conspiracy, mentioned to me offline that perhaps some of our differences in this symposium are premised on our “very different assessments of the terrorist threat.” I responded that I was skeptical of this — that I assumed there was not much distance between most of us, Ben included, on the nature of the threats (plural explained below), but only on how we think Congress, the courts, the Constitution and international law should respond to such threats.

For what it’s worth, my starting assumption has been that it is important to identify and distinguish two distinct sorts of threats. First, although there is a very interesting and important debate/discussion now underway as to whether and how al Qaeda is gaining or losing strength, I assume that al Qaeda is and will for the foreseeable future remain a chronic but intermittent threat with respect to what I will reluctantly call “familiar” terrorist acts — terrible acts of violence, but roughly within the range of what the West has been confronting for the past two or three decades: incidents such as the African embassy bombings and the London and Madrid bombings, as well as intermittent suicide bombs in subways, malls, etc. Some of those terrorist acts will occur in the U.S., more overseas. Perhaps, on occasion, something more dramatic, akin to the 9/11 attacks…

Thanks to Chris for inviting me to participate in this great “roundtable.” It has been wonderful to read the myriad perspective already.  Ben’s book is thoughtful and pushes the country in the direction it needs to go: policy makers need to begin to study, debate and perhaps embrace new ways to approach the War on al Qaeda. His book is a catalyst for such debate…as evidenced within this blog.

The discussion over whether this is a war or not seems to have been answered by Ben earlier today. But I think I would go a bit further…it is an armed conflict although one, as Ben notes, we are not accustomed to fighting. Thus, the problem with labeling the conflict as one or the other paradigm (war or law enforcement) triggers completely separate legal regimes. That is where we have been for the past seven years. The fact is the fight against international terrorism is an “armed conflict” — we have respnded to the attacks of 9/11 with armed force; and clearly the battles raging in Afghanistan (and now in Iraq against AQI) are indicium of war. But we also now use the FBI, the CIA and other law enforcement entities more than we ever have before - even in “combat”…There is a real mix of law and war in this conflict. As I see it, the key point of wisdsom in Ben’s book is that neither legal regime will work if strictly applied. There is a real need to embrace a third way, or a hybrid model. In my view, as many of you know, that is something worthwhile to at the minimum, have a commission chartered to review and seriously study….

We’ve not said as much as we might about the role of the “war” model in the war on terrorism.  And so, before we move on to more specific topics tomorrow, I’d like to share a few final thoughts inspired by an article by Bruce Hoffman and Seth Jones that appears in the most recent issue of the National Interest.

Discussion of the war in Afghanistan all too often assumes a relatively simplistic model in which the Afghan government, the U.S., and their allies are engaged in conflict with a single enemy force: the resurgent Taliban, with perhaps some degree of support from al Qaeda remnants in Pakistan.  Hoffman and Jones’ article–Cellphones in the Hindu Kush [subscriber access only, alas]–provides a useful corrective to that view, emphasizing the true complexity of the situation.  They report as follows…

Justice Scalia, deriding strict constructionism and distinguishing it from his own brand of textualism, once wrote that “I am not a strict constructionist, and no one ought to be. . . . A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

I was reminded of this quotation in reading Marty’s voluminous catalogue of laws, which he posted in response to my comment that “we do not have a lot of law here.” Allow me to play the textualist to Marty’s strict constructionism. I wasn’t talking about the number of laws or even the scope of their coverage. As Marty notes, I spend a number of pages in my book describing the many laws Congress has passed–and I spend a fair bit of time at the outset of the book as well laying out the state of the law on September 10, 2001. The comment was, rather, a reference to the collective failure of the our statutory and constitutional law to answer the questions we face with the specificity we need. I hope this is clear in context. In case it isn’t, let me hearby clarify: I do not now and have never doubted that Congress has passed many laws that arguably bear on the confrontation with Al Qaeda…

Let me first address Steve’s point about incrementalism, then Deborah’s and Steve’s tag-team argument that my distinction between statutory review mechanisms and open-ended habeas review is a false one. (I’ll address Marty’s, Geoffrey’s and Bobby’s posts in separate posts this evening.)

On incrementalism, I largely agree with Steve’s characterization of the court’s approach as incremental, and I don’t disagree either that it is a speculative claim on my part that the court’s intervention may carry significant costs. I acknowledge this point, I hope candidly, in the book (see pp. 122-123). That said, incrementalism is only a partial defense if you believe the court’s direction is wrong–ie, heading in the wrong direction slowly is, to be sure, better than heading in the wrong direction quickly, but it’s still the wrong direction. That, of course, raises the question of whether I’m right that the court’s actions are likely to have serious costs…

I want to explore Ben’s point about the desirability of having Congress craft the remaining details of how habeas review will function (now that Boumediene requires such review) rather than having judges craft those rules in the first instance.

There are indeed a raft of difficult procedural questions to be resolved in connection with the habeas review required by Boumediene.  As I discuss here, the government and the detainees recently filed briefs addressing a preliminary set of five such issues, including discovery, hearsay, confrontation, burdens of proof, and triggers for evidentiary hearings.

Judicial resolution of such questions may well result in a reasonable and well-designed detention review framework.  Or it might not.  Experience with the resulting system will tell us for sure, but that brings us to a reason one might prefer to have the legislature craft these rules in the first instance, rather than judges: it may be that we will wish to revisit these issues in light of experience, and that will be far easier to do if they are statutory rather than the result of a judicial opinion that purports to derive them from the Due Process Clause or from the constitutionally-protected aspect of habeas itself–especially if the statutory approach includes a sunset that compels Congress to revisit the issue after a certain period…

First, sincere thanks to the OpinioJuris team for inviting me to share my thoughts on Ben Wittes exceptional book; and thanks to Ben for such a well researched, well written, and provocative work.

My initial reaction to the book was that Ben has hit the proverbial nail on the head in terms of defining the policy challenge surrounding how the United States should or must frame the response to the threat of transnational terrorism.  More specifically, Ben clearly exposes how efforts to squeeze the response to this threat into existing legal frameworks has stressed the legitimacy of this response in legal, policy, and public perception terms.  My take is that Ben concludes, as the previous posts highlight, that the combined impact of this effort exposes the necessity of crafting a “hybrid” legal framework to deal with the “hybrid” threat we do and will undoubtedly continue to face.

This proposition raises so many potential points of controversy, ranging from separation of powers to the question of whether the threat is genuinely characterized as “hybrid” or “different” from what the U.S. and other states have faced in past decades.  Others have already begun discussion on these issues.  What I would like to focus on is the basic premise that an effective response to the threat of transnational terrorist threat requires a new - or hybrid legal framework.

I have my doubts. While I agree that if we try to fit the nature of this threat neatly into either a traditional law enforcement framework or an armed conflict framework, the result certainly does seem like trying to fit a square peg into a round hole.  As an interesting coincidence, I experienced this first hand on the day this online symposium began.  Yesterday I testified (out of order) as the first defense witness in the Hamdan military commission trial…

As I was saying, it is a central theme of Law and the Long War that “we do not have a lot of law here” (p.11).

Boy, that sure would be news to David Addington! If we don’t have a lot of law here, then why is it that the Bush Administration has spent the past seven years writing memo after memo arguing that it may disregard, or disingenuously construe, a whole slew of laws that constrain the President in his campaign against al Qaeda? And why has Addington crafted countless signing statements indicating that the President will circumvent Congress’s more recent handiwork?

Perhaps the more pertinent question is: “not a lot of law” compared to . . . what, exactly? Is there any previous war or armed conflict in which the Commander in Chief has been met with remotely as much law governing a military campaign? (David Barron and I argue, for what it’s worth (see pages 712-715), that a major reason why this conflict involves so much more law regulating the Commander in Chief than past conflicts is that this military “campaign” centrally involves detention and intelligence-gathering — subjects that Congress has commonly regulated — and that these activities are occurring not only on traditional battlefields overseas, but in civilian settings here at home, and affecting U.S. persons, such that the legislature has a greater interest in putting brakes on the executive.)

Let’s see…

Piggybacking (again) on Deborah’s response to Ben’s response to… (you get the idea): It strikes me that we’re having a debate over the proper role of the courts at a level of abstraction that is largely unhelpful. Ben says that he is okay with the role played by the D.C. Circuit in Parhat, for example, but that he is “uncomfortable with the open-ended role for the courts that will follow Boumediene. My acid test is whether we’re designing the system through litigation or whether we’re implementing a system with that litigation.”

I guess I just don’t see what is so open-ended, and perhaps clarification from Ben would help. The central inquiry in a habeas petition is whether the petitioner’s detention is unlawful. That’s it. Congress will of course have a lot to say in specifying whether or not the petitioner’s detention is authorized by statute, but it is then up to the courts, as it always has been, to decide (1) whether this particular petitioner falls within the substantive scope of the detention authority Congress has authorized, and (2) whether there are any constitutional problems either with the substantive scope of that authority, or with the process employed by the government in deciding that the petitioner falls within that scope. The answer in the vast majority of cases may well be “no,” especially if Congress does more than it has previously done to define the substantive detention criteria with any modicum of precision. But whether Congress so acts or not, I still don’t see how such review “threaten[s] an enormous and unwarranted expansion of judicial power in foreign and military affairs.” Indeed, there is an inverse relationship here between how active the courts will need to be and how specific Congress is. That doesn’t just strike me as the hand we’ve been dealt; that strikes me as the right way to run this railroad…

You write that you are “deeply disquieted by any substantial role for judges in the design of the systems in which they will play that key adjudicatory role.”  So judges deciding cases based on the review scheme set forth in the brand new DTA (and MCA) statute is good.  Judges deciding cases based on the review scheme set forth in the age-old habeas statute and as elaborated over centuries of common law practice is deeply disquieting? I think I need to understand in more detail here why you think there’s an important structural difference as between these options.

Deborah’s and Marty’s challenging posts throw down the gauntlet in a number of important areas. To keep this response at a reasonable length, I’m going to boil their points down to five broad arguments. I’m not trying, in doing so, to dodge or elide their other points; consider this as a first pass at a response. I’m happy to swing back and respond further or in more detail to more granular points if they–or others–want. Before I begin, however, I want to thank Marty and everyone else for the very generous words about the book, which I appreciate deeply:

First, Deborah complains that there’s less of a gulf than one would think between my criticisms of the role the courts have played and the role that I advocate their playing. I think this is wrong. To be clear, I advocate an extensive role for judges in the adjudication of contested detention issues, yet I am deeply disquieted by any substantial role for judges in the design of the systems in which they will play that key adjudicatory role…

As usual, I agree with much of what Marty says, especially Marty’s suggestion that he is almost inclined to say that this is the single volume to read to find out where we are and where we’ve been (query whether the same might also be said about Jane Mayer’s new book, but more on that later). Marty is also right, I think, to call Ben’s critique of the role of the judiciary “odd,” for reasons that he (and Deborah) articulate in some detail, and which I won’t repeat here. But I think both Marty’s and Deborah’s posts skip slightly over a point that I think bears emphasizing: the role of the courts has, in my view, been incremental — sort of an attempt at a public conversation with the political branches. So it’s not just that we’d be infinitely worse off without these decisions (as Marty suggests), or that the courts (and the Supreme Court in particular) have basically gotten it right (as Deborah suggests). Rather, it’s that the courts did exactly what we should want them to do during crisis times — speak very softly at first, but raise the volume and sharpen the tone (a) as time goes on; and (b) as the earlier decisions are ignored / side-stepped / mis-appreciated…

I will address later this morning the raft of issues raised by Deborah’s and Marty’s posts. I want, however, to briefly clarify a point that has become a little bit muddy as to my view of whether America is really at war. Several posts seem to take it as a given that I am arguing for a war model in the current conflict. Yet notwithstanding the book’s title and its reference to the “long war,” I actually argue against overreliance on the war model–and specifically against reliance on the war model as a long-term basis for strong counterterrorism actions. The final paragraph of the book describes the conflict as “a long war, a war that isn’t quite a war but isn’t quite anything else either, a war we have still not compellingly defined and may never fully define and yet will need to regulate and prosecute anyway.” Elsewhere, I describe it as “something that goes beyond war altogether” and describe in some detail the costs of relying on the war model–which was, in my judgment, inevitable as a short-term response to the immediate crisis of 9/11.

In brief, I believe the war on terror is, in some sense, a war and certainly draws on the legal traditions surrounding warfare. But a core argument in the book is that we should treat terrorism as a sui generis area of its own–different from war, different from law enforcement, yet drawing pervasively on both of those traditions. And I specifically reject the notion that the primary body of law governing it should be the laws of war.

My apologies for implying that Ben is a neoconservative, but I think that the title of my last post — “Damning International Tribunals With Faint Praise” — is accurate. Stray or not, Ben’s comment praises the international tribunals for (ostensibly) not offering defendants the same kinds of protections that defendants enjoy in U.S. civilian courts.The belief that the Rome Statute underprotects defendants is at the heart of the neoconservative critique of the ICC; Ben’s comment thus partakes of that critique, which applies just as strongly to the ICTY and ICTR’s similar procedural regimes.  The only difference is that neoconservatives oppose the (allegedly underprotective) ICC because they fear that it mayone day prosecute an American, while Ben supports the (allegedly underprotective) international tribunals because he hopes that they may one day prosecute alleged terrorists…

Thanks so much to the Opinio Juris folks for the opportunity to participate in this wonderful symposium. Ben’s book truly is indispensable — a must-read for all those interested in these important topics. In particular, Ben’s descriptions of the difficult questions, and his narrative of how we got to this unfortunate point with respect to many of them, are thorough, precise, and (most importantly) lucid — which is saying quite a lot when it comes to these debates. I am almost inclined to say that if I had to recommend a single volume to someone to inform them of where we’ve been and where we’re going in the conflict with al Qaeda, it would be this one.

Almost…

In a similar vein as Peter and Peggy before me, I want to mine two of Ben’s premises: that we are in a new kind of war and that this needs a new kind of law. I do agree in part with Ben on each of these– I think we are facing conflict of a different sort than we have before and I also think that we need legal tools that address the issues spawned by such a conflict.  But I also think that the conflict we are facing is closer to a complex intelligence and law enforcement operation than a war and that we can address these issues by adjusting and updating existing laws rather than turning this into a founding moment for a new corpus of law, a new balancing of fundamential rights, and a new set of institutions.  Our existing Constitutional tradition may be messy, but it is up to the task…

Peggy and Peter, with slightly different emphases, both criticize me for focusing too narrowly on domestic legal policy. As Peggy puts it, by doing so, I “implicitly endorse the notion that the U.S. is unique in its experience of terrorism and the challenge of crafting laws to address it.” It’s a point worth addressing explicitly.

The United States is not the first country to have to reconcile strong antiterrorism steps with the rule of law. Far from it. Yet it is important not to understate or overlook the genuinely unique features of the emerging American confrontation with terrorism–features that make a multilateral approach both necessary and, at times, profoundly difficult, features that also necessitate to some degree the hybridization of law enforcement and military powers that we otherwise try to keep distinct…

First, thanks to all for the great opening posts, and more broadly to Chris, Peggy, and the whole Opinio Juris crew for welcoming me into the fold. I’m delighted to join such a dynamic forum, and very much look forward to our exchanges ahead.

Ben suggests as a central topic to kick of this week’s discussion a broad structural question: “Does anyone think the optimal environment for executive prosecution of the war on terror (or whatever you want to call it) involves, for example, having no legislative guidance regarding whom to detain or under what rules?” Well, setting aside the whole “is it a ‘war’ on terror” question for a moment, no one I know thinks Congress has no role to play in U.S. counterterrorism law and policy. Or, with fewer negatives: Yes of course, Congress has an important role to play. I’d also wholeheartedly agree that Congress has acquitted itself rather poorly so far, remaining AWOL on critical questions of detention, interrogation, etc. long after it had become clear (for example) that this administration had some pretty radical views, both on the scope of its own power, and on what makes for effective national security policy. We’ll disagree, Ben, about what exactly Congress should do with its power, but if your book’s primary point is this structural one – no issues there. Indeed, I can’t think of anyone I’ve encountered (human rights advocate or no) who’d disagree. . .

I’m not surprised that Ben (as one of the new foreign policy pragmatists) says he’s amenable to international law as part of an anti-terror answer (assuming that that a legal fix of any description is necessary — I hope we’ll hear from Deborah Pearlstein with her argument that we don’t need to change international law, either). But it’s too bad that something along the lines of his post isn’t in the book.

Here’s why. . .