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

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.

This isn’t the stuff of suicide pacts.  I think it’s more a question of updating the law rather than starting from scratch.  In fact, the book draws many lines of continuity (from the law of civil commitment, for example).  I’m totally on board with the need for various legislative responses, but it’s misleading, perhaps even dangerous (given the appalling caliber of recent Congresses) to frame this as a Founding moment.  Many of the book’s proposals, which we’ll be discussing in detail through the week, are well taken.  I imagine many of them will be taken up as the keel of the presidency rights itself with a new Administration.  But let’s not conceive of these initiatives as a matter of constitutional reinvention.

If there’s one lesson out of post 9/11 developments that goes missing here, it’s that international law has to be part of the answer.  The book makes a few nods to international law (arguing for instance that detainees should have had article 5 tribunals to establish their non-POW status), but only as a static quantity that has to be navigated.  In other words, the book looks at international law as an obstacle rather than as a tool.  For Wittes, IL is something that can’t be ignored (this book, like others from the center and center right, has David Addington in its cross hairs).  But there’s not even a suggestion that an appropriate parallel vehicle for addressing the challenge is found in international law.

A likely response: well, we have to start at home, and domestic law still eclipses international law in importance.  Yes, domestic law is clearly the key element of a legal response.  But just as clearly, it can’t stand on its own, and if the domestic legal response is out of step with the international, it will go down in Gitmo-like flames again.  This is not simply a question, as the book puts it, of devising a system “of which we can stand proud before the world.”  It’s a matter of closer coordination, of real lawyering.  On some questions, we may be better off awaiting the reform of international law before undertaking domestic law change, to avoid getting stuck with something the rest of the world ends up rejecting.

So IL can no longer be bracketed.  Indeed, if there’s a Founding moment here, it will more likely be in international institutions than domestic ones.