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Law and the Long War: The Future of Justice in the Age of Terrorby Benjamin Wittes
Synopses & Reviews
Benjamin Wittes offers the first nonpartisan critique of a crucial front in Americ‛s war on terrorÂ—the legal battles fought by and among the Bush administration, the U.S. Congress, and the Supreme Court
Six years after the September 11 attacks, America is losing a crucial front in the ongoing war on terror. It is losing not to Al Qaeda but to its own failure to construct a set of laws that will protect the American peopleÂ—its military and executive branch, as well as its citizensÂ—in the midst of a conflict unlike any it has faced in the past. Now, in the twilight of President Bus‛s administration, Brookings Institution fellow Benjamin Wittes offers a vigorous analysis of the troubling legal legacy of the Bush administration as well as that of the U.S. Congress and the Supreme Court. Law and the Long War tells as no book has before the story of how America came to its current impasse in the debate over liberty, human rights, and counterterrorism and draws a road map for how the country and the next president might move forward.
Moving beyond the stale debate between those fixated on the executive branch as the key architect of counterterrorism policy and those who see the judiciary as the essential guarantor of liberty against governmental abuses, Wittes argues that the essential problem is that the Bush administration did not seekÂ—and Congress did not writeÂ—new laws to authorize and regulate the tough presidential actions this war would require. In a line of argument that is sure to spark controversy, Wittes reveals an administration whose most significant failure was not that it was too aggressive in the substance of its action, but rather that it tried to shoulder the burden of aggressiveness on its own without seeking the support of other branches of government. Using startling new empirical research on the detainee population at GuantĂˇnamo Bay, Wittes avers that many of the administratio‛s actions were far more defensible than its many critics believed and actually warranted congressional support. Yet by resisting both congressional and judicial involvement in its controversial decisions, the executive branch ironically prevented both of those branches from sharing in the political accountability for necessary actions that challenged traditional American notions of due process and humane treatment.
Boldly offering a new way forward, Wittes concludes that the path toward fairer, more accountable rules for a conflict without end lies in the development of new bodies of law covering detention, interrogation, trial, and surveillance. Sure to discomfort and ignite debate, Law and the Long War is the first nonideological argument about a controversial issue of vital importance to all Americans.
"Brookings Institution fellow Wittes evaluates the 'war on terror' from a refreshingly nonpartisan perspective that assesses the chasm between the gravity of American security needs and the 'inadequacy' of its laws. Both a defense and critique of the Bush administration, the book argues in favor of many of the measures taken by the executive branch while condemning its failure to secure congressional cooperation and the necessary 'legal architecture' to back policies that were bound to be unpopular. Wittes reserves his real ire for a legislature that has ignored its mandated responsibility of creating 'coherent, legal structure for this war' and a Supreme Court that has attempted to extend its jurisdiction over detainees and is increasingly interfering in foreign policy. Wittes's familiarity with the law and excellent analysis of contemporary Supreme Court cases give this book insight that transcends party politics and make for a fascinating read; however, his heavy reliance on legalese may alienate casual readers. His prose, when not bogged down by jargon, is appealing ('The Constitution is old — old and short') and services a robust call to action. (June)" Publishers Weekly (Copyright Reed Business Information, Inc.)
After the terrorist attacks of Sept. 11, 2001, Osama bin Laden's driver and aide, Salim Hamdan, was captured by Northern Alliance fighters in Afghanistan. They hog-tied him with electrical wire, placed a hood over his head and turned him over to American forces for a $5,000 bounty. Six months later, he was transferred to the newly built U.S. detention center at Guantanamo Bay, Cuba. There, he was given... Washington Post Book Review (read the entire Washington Post review) a 35-year-old military defense lawyer named Lt. Cmdr. Charles Swift, who candidly introduced himself by saying, "I work for the same people who are holding you here." Few thought Swift would mount a real defense. His assignment was to get Hamdan to plead guilty — even though no charges had been brought — and he was told that if he didn't, his access to Hamdan would be cut off. But in 2004, with the help of Swift and a young law professor at Georgetown named Neal Katyal, Hamdan sued the secretary of defense and the president of the United States. Two years later, he won. In Hamdan versus Rumsfeld, the Supreme Court struck down the Bush administration's original plan for special military tribunals, saying they would violate the Geneva Conventions and the Uniform Code of Military Justice. The route to that decision is detailed in Jonathan Mahler's "The Challenge," an insider's account written with the cooperation of Hamdan's lawyers. Subsequent events have somewhat eclipsed the book; if Hamdan thought his victory in the Supreme Court was the end of his tortuous journey, he was wrong. Shortly after his lawyers explained the court's 5-3 ruling to him, Guantanamo guards confiscated his copy of the opinion. The president persuaded Congress to approve new military commissions with somewhat different rules, and Hamdan was tried in the first such proceeding since World War II. Last month, he was convicted of material support of terrorism and sentenced to five-and-a-half years in prison; with credit for time already served, he could be eligible for release early next year. Then again, the Defense Department has said it may hold him indefinitely as an "enemy combatant." Mahler, a writer for the New York Times Magazine, aims simply to tell the story of the original litigation. But "The Challenge" would have benefited from less detail about the personal lives of Swift and Katyal and, in fairness, a little more attention to the lawyers for the other side and their arguments. While Mahler doesn't say what should be done with detainees in the war on terror, Benjamin Wittes does. Recognizing that the answers are "paralyzingly non-obvious," he contends in "Law and the Long War" that the question of how the U.S. government should snoop on, detain, interrogate and try suspected terrorists requires a whole new legal framework. Wittes, a former editorial writer for The Washington Post and now a fellow at the Brookings Institution, proposes various policy changes. For future Hamdans, he says, some form of administrative detention might be in order, possibly overseen by new, civilian-run courts that have jurisdiction only over war crimes and unlawful enemy combatants. Electronic intercepts should be used aggressively, not only to surveil terrorists who have already been identified but also to acquire new suspects. Torture, on the other hand, should be outlawed; in exceptional cases when officials conclude that it's essential, the president should be required to authorize it personally and then stand up publicly and grant something like a pardon to government employees who would otherwise incur criminal liability. Wittes is concerned about preserving the system's integrity, and he pulls no punches: In his view, President Bush's willingness to permit waterboarding while insisting that the United States doesn't torture is the "kind of double-talk that denudes law of meaning and renders the presidency morally laughable." Some analysts view the struggle against international terrorism as a law-enforcement problem, while others call it a war. Wittes contends that neither model fits very well. The big question for him is: Which branch of government should write the new rules for a hybrid approach? Neither the executive, he believes, nor the courts; Congress should take the lead because the nation needs a coherent, democratic legal regime to deal with terrorism, rather than the patchwork of judicial decisions that's now emerging. Wittes acknowledges that the legislative branch's performance on terrorism issues has been uneven since 9/11. Still, he contends, it remains best suited to forge consensus and ensure the system's legitimacy. Is Wittes right? It's far from clear that the terrorist threat is as great as he seems to assume; the threat was underestimated before 9/11, and he and others may be overestimating it today. If the threat is indeed grave, it's not evident that greater consensus would be in the national interest; a certain degree of discord is healthy on these sorts of nerve-center issues. Nor is it clear that more comprehensive legislation would mean a lesser role for the courts. Congress will inevitably leave room for disagreement about what its words mean, and legislative approval is no guarantee of either fairness or farsightedness. Those who like what the president and Congress have done since 9/11 probably will like many of Wittes' ideas. Those who like what the courts have done probably won't. All will profit, however, from his evenhanded and elegantly written analysis. The continuing challenge posed by Salim Hamdan (and many others like him) is to ensure protection against both terrorism and the government itself. That will require painful tradeoffs. Agree with Wittes or not, his effort to get the balance right is a must-read in the contemporary literature about reconciling security and freedom. Michael J. Glennon is professor of international law at the Fletcher School of Law and Diplomacy, Tufts University. He is the author of "Constitutional Diplomacy." Reviewed by Michael J. Glennon, Washington Post Book World (Copyright 2006 Washington Post Book World Service/Washington Post Writers Group)
(hide most of this review)
Wittes offers the first nonpartisan critique of a crucial front in America's war on terror--the legal battles fought by and among the Bush administration, the U.S. Congress, and the Supreme Court.
An authoritative assessment of the new laws of war and a sensible and sophisticated roadmap for the future of liberty in the Age of Terror
America is losing a crucial front in the ongoing war on terror. It is losing not to Al Qaeda, but to its own failure to construct a set of laws that will protect the American people during this global conflict. As debate continues to rage over the legality and ethics of war, Benjamin Wittes enters the fray with a sober-minded exploration of law in wartime that is definitive, accessible, and nonpartisan. Outlining how this country came to its current impasse over human rights and counterterrorism, Law and the Long War paves the way toward fairer, more accountable rules for a conflict without end.
About the Author
Benjamin Wittes is a Fellow and Research Director in Public Law at the Brookings Institution. A former editorial writer for The Washington Post specializing in legal affairs, Wittes currently writes a column for The New Republic online and is a contributing editor for The Atlantic Monthly. He is a member of the Hoover Institution Task Force on National Security and Law.
Table of Contents
Law And The Long War Introduction
One: The Law of September 10
Two: The Administration's Response
Three: The Real Guantanamo
Four: The Necessity and Impossibility of Judicial Review
Five: The Case for Congress
Six: The Twin Problems of Detention and Trial
Seven: An Honest Interrogation Law
Eight: Surveillance Law for a New Century
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