Getting Things Started

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. This has a polarizing effect on our already-polarized politics. But more importantly, the focus on current law, rather than on designing new law, has the perverse effect of kicking the basic design questions of the architecture of America’s response to Al Qaeda to the courts. The book is an effort both to analyze how America came to its current impasse over law and terrorism and to imagine how we might break that impasse–and to propose legislative strategies toward that end across the range of issues now in contest. 

In my judgment–a judgment I’m sure will be tested over the next two days–there’s enough blame to go around for the impasse. The Bush Administration, of course, made critical errors, relying far too much on claims of its own inherent authority in situations in which it should have gone to Congress for legislative backing. But I don’t think the problem ends there. Just as the administration defined the scope of its lawful authority according to its needs (anything we need to do is lawful as a consequence of our need) many critics of the administration came to confuse their opposition to the executive power claims of the administration with opposition to the substance of the steps the administration wanted to take (anything they want to do is unlawful as a consequence of their wanting to do it). I also think that other branches of government deserve accountability for their roles. The courts, whom many commentators seem to lionize, have in my view been playing a very dangerous game–one that has actually contributed relatively little clarity to the discussion yet has threatened an enormous and unwarranted expansion of judicial power in foreign and military affairs. And Congress has not exactly been pushing for a greater role in defining the rules of the road. It has largely contented itself with carping from the sidelines.

My argument rests on three basic premises: First, that the war on terror is genuinely different from anything we’ve faced before; second, that it consequently requires new law, the development of new regimes tailored for the conflict at hand; and third, that the proper forum for this development is the Congress, the branch designed for the creation of new systems to respond to new problems.

What precisely do we need in the way of new laws? I don’t want to gum up this post with three chapters’ worth of legislative recommendations. But suffice it to say that I argue for a new detention statute (which we’ll be discussing on Wednesday and Thursday), for a new interrogation statute (which we’ll be discussing on Thursday and Friday), for a hybrid approach to criminal trials, and for wholly rethinking our approach to surveillance, which I believe is hopelessly outmoded by modern technology and communications.

So since today and tomorrow are to be devoted to discussion of the premises and to the question of whether my critiques of Congress and the courts are correct, let me kick things off by posing a question: Is anyone actually satisfied with the state of the law today? 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? Or having 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? And is anyone really content to resolve the contours of, say, our detention regime in a common law dialogue between the executive and the judiciary rather than in a deliberative and open legislative process? 

I look forward to the exchange.