Complexity in the Afghan-Pakistan theater and the Role of the War Model in the War on Terrorism

by Bobby Chesney

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…

Some Additional Thoughts

by Benjamin Wittes

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…

Responding to Steve and Deborah

by Benjamin Wittes

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…

Should Judges or Congress Elaborate the Procedural Details of Habeas Review?

by Bobby Chesney

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…

Push a Square Peg into a Round Hole, or Build Another Hole?

by Geoffrey Corn

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…

Not Enough Law? Compared to What?

by Marty Lederman

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…

The Purpose of Habeas Corpus

by Steve Vladeck

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…

Back to Ben on the Courts

by Deborah Pearlstein

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.

The Role of the Courts

by Benjamin Wittes

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…

More on the Role of the Courts in the “Long War”

by Steve Vladeck

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…

A Point of Clarification

by Benjamin Wittes

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.

Not All Hearsay Rules Are Created Equal

by Kevin Jon Heller

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…