The Real Lessons of Law and The Long War

by Marty Lederman

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.


Is Messy Constitutionalism the Enemy of Effective Strategy?

by Chris Borgen

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…

A Few Thoughts

by Benjamin Wittes

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…

Reading Ben’s Book

by Deborah Pearlstein

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. . .

To Ignore International Law Is To Dismiss It

by Peter Spiro

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. . .

Damning International Tribunals with Faint Praise

by Kevin Jon Heller

I had planned to lurk on the sidelines until the discussion of Ben’s fascinating book moved to the “need” for a new interrogation statute — I, for one, am more than happy to have “interrogation laws that operate only at the highest altitude (nothing cruel or inhumane, nothing that causes severe pain or suffering) but never come down to earth,” if by the tendentious expression “at the highest altitude” we mean “consistent with the Torture Convention.”  But I couldn’t let the following comment go, even if it is just an aside in Ben’s response to Peter:

And the more I think about it, the more I suspect that international criminal tribunals–which can get away with not offering defendants the range of procedural rights guaranteed by the Bill of Rights–may be part of the answer to the problem of terrorist trials.

This is the standard neoconservative canard concerning the ICC — though with the added twist that Ben seems to believe that, at least in terms of prosecuting terrorists, the alleged lack of due-process protections at the ICC would be its strength, not its weakness

The “War” Model, Iraq’s Role, and the Need for Strategic Focus

by Bobby Chesney

Thanks to Chris and his colleagues at OJ for giving me an opportunity to participate in this important discussion.

Today we’re focused on broad premises underlying the book, and in particular the utility of using the concept of war in connection with counterterrorism policy.  Peggy’s most recent post critiques the Bush Administration’s emphasis on the war model, concluding that “the framing of our current counterterrorism policy as a “war” — including the legal policies Ben effectively critiques in the book — has cost the U.S. more in terms of prestige, reputation, support from allies and cooperation from other foreign states than it has gained us.” Perhaps so, but I’d like to press on that claim a bit…

Peter’s Two Points

by Benjamin Wittes

Peter makes two points, one with which I largely agree, the other with which I disagree. Agreement first:

I have no doubt that the structures we create to fight terrorism have to be reconcilable not only with the American constitutional tradition but with international law as well. While I am skeptical that a meeting of the minds between American and European sensibilities will be easy to come by, I don’t believe the United States has been well served by its international isolation on the key actions it has taken in the war on terror–any more than the executive branch has been well served by its go-it-alone posture domestically. The book focuses on domestic law not because I don’t think international law is important but because it’s something over which the United States has less short-term control. In other words, in the long run, I believe that the international community will need to significantly rethink and supplement the law of armed conflict as pertains to this kind of asymmetric warfare. And the more I think about it, the more I suspect that international criminal tribunals–which can get away with not offering defendants the range of procedural rights guaranteed by the Bill of Rights–may be part of the answer to the problem of terrorist trials. So I’m open to international law, as Peter puts it, as part of the solution. But that’s in the long run. My concern in this book was what America should have done over the last seven years and, more importantly, what it should do now. Given the problems of garnering international consensus, international law was an improbable instrument for that project. For such short and medium term questions, domestic law seems like the essential tool…

Don’t Let the Legal Policy Tail Wag the Foreign Policy Dog

by Peggy McGuinness

I will join the chorus of praise for this terrific book. But I want to add briefly to Peter’s critique of Ben’s premise that the current threat from transnational terrorism has us in a “long war,” by looking at what this means for broader foreign policy – one that encompasses, but it is not driven by, domestic legal policy. The book correctly, and refreshingly, recognizes two important points: (1) that addressing the threat of terrorism requires approaches that encompass domestic law enforcement and regulation as well as applications of armed force and multitude of other cooperative intelligence and military operations; and (2) that this hybrid policy approach has been – and continues to be – the hallmark of U.S. counterterrorism policy since at least the Regan administration. (I hope we can all finally retire the well-worn line of the Bush administration that “the problem with prior administrations was that they viewed terrorism purely as a law enforcement problem.”) Given those important admissions, what is the rationale to adopt the framing of counterterrorism policy as a “long war with a dangerous foe?” (p. 17)…

Wittes’ Law and the Long War: International Law Goes Missing

by Peter Spiro

This is a great book and there’s a lot to chew on here.  By way of taking up Ben’s opening volley, I have two general thoughts:  1) things may need some fixing, but not necessarily at the foundational level framed in the book, and 2) to the extent things do need fixing, international law has to be in the picture.

The first point goes to the question of whether or not we’re actually in a “long war”.  As I argue here, that premise looks increasingly problematic.  Al Qaeda looks a lot less scary seven years out from 9/11.  I think that shows through in the book with Ben’s repeated use of “menace” to describe individuals who are basically foot soldiers.  We could safely let all but the top leaders go without having much to fear (as Ben notes, we certainly can keep former Gitmo detainees on the no-fly list!).  The terrorists haven’t been able to muster much of a fight lately.  Even the episode which lends itself most to arguments in favor of extreme preventive response — the liquid explosive plot to take down a dozen transatlantic jetliners — turns out not to have been much of a threat after all

Getting Things Started

by Benjamin Wittes

Let me start by thanking Chris for hosting this discussion, of which I’m delighted to be a part, and by thanking as well all of those who are participating. It really is a wonderful group, and I’m excited about the coming exchange.

I wrote Law and the Long War out of a sense of frustration with the debate that has developed over law and the war on terror. For several years, America has been convulsed in a very earnest discussion over what the law is, rather than over what the law should be. We are debating questions that mostly have no clear answers–what is the proper scope of detention authority? what are the limits of coercion in interrogation? what are the minimum legal requirements for terrorist trials?–as though the law as it stands today answers them fully. In doing so, many Americans–including many intellectuals–have managed to convince themselves that these questions are easy, rather than agonizingly difficult…

Opinio Juris Book Discussion: Benjamin Wittes’ Law and the Long War

by Chris Borgen

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We are pleased to host this week a discussion of Benjamin Wittes’ book Law and the Long War. Ben’s book is a comprehensive analysis of the relationship of law and of our Consitutional structure to counter-terrorism policy. It is a book that is sure to ignite debate from all around.

Ben’s opening post is available here. The other posts will be listed in the “Recent Posts” window, below.

For some background on how this week’s discussion is organized and on the guest contributors, click the “Continue Reading” link at the bottom of this window.