The Real Lessons of Law and The Long War

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.

I fear, however, that the substantial descriptive and analytic virtues comprising 90 or so percent of the volume will be easily overlooked because they are not nearly as provocative as the remaining ten percent of the book, consisting of dramatic headlines that are undoubtedly a publisher’s dream — the conspicuous condemnations of virtually all the relevant actors (not only the Bush Administration, but also the other two branches, and the himan rights community, for good measure), and Ben’s eye-opening prescriptions for fundamental changes in the law. Unfortunately, this 10% of the book is not only more provocative, it is also much more problematic. More to the point, perhaps, I don’t think those bold headlines follow from Ben’s own sober analysis of the dysfunctions in our “war on terror.” When I read the granular details that Ben so comprehensively canvasses, I come away with the general impression that our legal framework for dealing with the al Qaeda threat is substantially adequate to the task — a rich mixture of tools from the criminal law, armed conflict, intelligence gathering, and more — and that two of the three federal branches have been appropriately responsible in their efforts to balance those tools (even though I don’t especially like some of Congress’s work-product) . . . but that we went grotesquely astray because of the vast overreaching and arrogance of the third branch (guess which).

Ben, of course, views his own narrative quite otherwise. The primary themes of the book — of those headlines, anyway — are (i) a Pox on All Your Houses; and (ii) We Desperately Need a New Statutory Framework. But I am not so certain his own account doesn’t point in quite different directions.

As for the prescriptive headlines: Ben is surely correct that some statutory amendments would be worthwhile. Who could (or would) deny that? For instance, he emphasizes quite rightly that one big unanswered question is how to deal with the fact that military detentions in this armed conflict are indefinite and extended in ways that did not characterize detentions in more traditional conflicts. As Justice O’Connor warned, this is indeed the primary pressure point on which the current statutory framework, informed by the traditional laws of war, may begin to “unravel.” Therefore Ben is absolutely right to insist that this is one question the legislature will have to consider eventually (even if only after the courts have begun to identify constitutional limits). Moreover, surely each of us, whatever our various perspectives might be, has our own, personal Top 10 List of provisions in extant laws (whether it’s the MCA, FISA, the War Crimes Act, etc.) that we hope Congress will eventually change.

But a fundamental restructuring? I just don’t see the case for it — certainly not in Law and the Long War. In particular, and as we will discuss later in the week, it strikes me that the current laws on interrogation and detention are (roughly) adequate to the task, if only we had an Executive that would faithfully and reasonably apply them, rather than disregard them or construe them into meaninglessness. (As for military trials, I am no more satisfied with the MCA than Ben is, and I hope it’s largely amended, but I don’t think there will be very many such trials, and so I think this is a relatively minor aspect of the legal regime. And as for electronic surveillance, well, now there has been a major statutory change, and we’ll have to wait and see (or not — we may never know what the NSA can now lawfully do) whether Congress has struck a proper balance. For those few of you who might care, my views on this topic can be found, e.g., here, here, here and here.)

Now, as for Ben’s notion that all three branches share culpability, in roughly equal measure, for our present plight . . . well, I would begin by urging OJ readers to read Chapters Two through Four of Ben’s book, which quite effectively and swiftly demonstrate the sins and errors of the Bush Administration just about as convincingly as any source short of Jane Mayer’s new book. (Yes, Ben, even Chapter Three: To be sure, in that chapter you persuasively show that some GTMO detainees were properly detained; but the real value of the chapter is that you effectively confirm that, even assuming arguendo a very broad and dubious conception of the scope of the Executive’s detention power, hundreds of the detainees at GTMO (and who knows how many others at Bagram and elsewhere) are not properly detained — a number that will only increase after more decisions such as Parhat and al-Marri insist upon a far narrower notion of the military’s detention authorization. We can quibble about exactly what the “error” rate has been (scare quotes because the detentions were not “errors” from the Administration’s perspective); but however that question is resolved, your analysis of the GTMO detainees is proof positive that the error rate is much, much too high.)

With respect to Ben’s odd critique of the judiciary, I see that Deborah is doing most of the important work, and so perhaps not much more is necessary. For now, then, two brief points: First, it’s nothing new for the judiciary to apply fairly open-ended legal standards, including most importantly the (common) laws of war, to adjudicate how armed conflicts are to be conducted. Just take a look at the huge body of cases in the early years of the Republic dealing with the most contested issues of early wars — prize and neutrality. Or the Court construing contested and non-specific statutory standards in such long-forgotten cases as Little v. Barreme, Milligan, Youngstown, etc. . . . right down to Hamdi, Rasul and Hamdan.

Second, a question for Ben: Where would we be now if the Court had not ruled against the Executive in Rasul and Boumediene, the cases that come in for the most criticism in your book? That’s easy: We would be much, much further away from the sort of legal regime that Ben promotes. Finally, after almost seven years, we are beginning to enforce statutory and treaty-based limits on the Executive’s regime of cruelty. Finally, after almost seven years, we are beginning to see some thoughtful articulation of the limits on the Executive’s detention authority (see, e.g., the opinions in al-Marri, which I discuss here), and some insistence that the government actually produce evidence showing that the detentions are lawful, years after the prisoners were apprehended (see my discussion of Parhat here). If either Rasul or Boumediene had come out the other way, there would now effectively be virtually no limits on who the Executive could detain indefinitely, none of the transparency that Ben insists upon, and free reign for the exploitation of the sort of inhumane despair that results from incommunicado detention . . . as well as a good measure of sheer cruelty and torture. Ben argues that these Court decisions did not actually accomplish as much as many have claimed. But they (along with the Court’s unequivocal rejection, in Hamdi, of the Administration’s argument that incommunicado detention is authorized for purposes of interrogation) have had an enormous impact in at least one, absolutely critical respect: Once the Administration — and the detainees — understood that the courts would be overseeing detention practices (however modestly and deferentially), and that the executive would have to produce justifications for its detention decisions, it fundamentally altered the detention regime: no more black holes; no more threats to the detainees that all legal hope is lost and that no one knows of their existence; in short, the end of what Justice Stevens in Padilla quite rightly called a Star Chamber. That’s a pretty big deal — indeed, an absolutely necessary predicate, without which Ben’s entire prescriptive agenda would be an absurd and naive wish-list.

OK, finally, the real villain of Ben’s story — as he sees it, anyway — is Congress.   Like almost all war powers commentators over the past 40 years, Ben condemns the legislature for allegedly being too passive — for being so frightened of political accountability that it sits on the sidelines and lets the executive run rampant.  Because of the legislature’s criminal inaction, on this view, we are now confronted by a legal void — as Ben puts it on page 11, it is “an important fact [that] we do not have a lot of law here.”

This could be the mantra for Law and the Long War, I suppose — that there’s “not a lot of law here,” and so we need to fill the void immediately (or after November, at least).  This is the strangest notion of all — and the one most at odds with the story Ben tells in his descriptive mode.  But this post is already too long, so I’ll stop here and turn to the legislature in a follow-up post.