More than six years after the September 11 attacks, America is losing a crucial front in the ongoing war on terror—not to al Qaeda but to its own failure to construct a set of laws that will protect the American people and govern the American side of a conflict unlike any it has faced in the past. Now, in Law and the Long War (Penguin Press, 2008), Benjamin Wittes, Brookings fellow and research director in public law, offers a vigorous analysis 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.
Monday, June 23, 2008
2:00 PM to 3:30 PM
The Brookings Institution
1775 Massachusetts Ave., NW
Contact: Brookings Office of Communications
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On June 23, Brookings hosted Wittes for a panel discussion of his provocative new book. In Law and the Long War, Wittes argues that the essential problem with the Bush administration’s course was that it did not seek—and Congress did not write—new laws to authorize and regulate the tough presidential actions this war would require. He both argues for more extensive congressional involvement in designing the law of counterterrorism and boldly proposes new bodies of law to govern detention, interrogation, trial and surveillance.
Stuart Taylor, a Brookings nonresident senior fellow and National Journal columnist, moderated the discussion. Jack Goldsmith, former head of the Justice Department’s Office of Legal Counsel, and Seth Waxman, former Solicitor General of the United States, provided commentary on the book.
BEN WITTES: Behind the effort to think past this are three assumptions, and I want to be very up front about all three of them. The first is that the administration and many of its critics are both correct that this is a conflict fundamentally unlike anything else we have faced before; that easy analogies either to the criminal law or to the laws of war do not quite work all the time; and that this begs problems that we have never really confronted before. The second, and this is something that both the administration and its critics often deny, is that if you buy the premise of premise number one, it follows from it that we have to create new things, new institutions, new procedures, new ways of thinking legally about the conflict; that this involves the creation of new legal regimes and that if the analogies fail, creating law by analogy to them will also produce a suboptimal outcome. And number three, that when you are talking in the language of creating new legal regimes, when you are thinking about a new situation that requires new law, the proper venue, the presumptive proper venue to do that, is the Congress of the United States, it is not a common-law dialogue between the executive and the courts.
The question of how exactly is a fascinating one, but somehow we have gotten bogged down in this very, very earnest and serious and very heartfelt debate over what the law is rather than what the law should be. We talk about the scope and reach of the historic habeas corpus instead or largely instead of talking about the substance of what rules we want to govern detention. We ask whether the CIA is violating these very vague and ethereally written prohibitions against inhumane treatments of one sort or another instead of saying, wait a minute, we have a problem. We have a problem in which we are asking people to conduct interrogations against vaguely worded guidance in which we will fault them if they do not go far enough, we will have a 9/11 Commission that will have a chapter about missed opportunities about that interrogation, and if they go too far, we will fault them for that too. Instead of saying we need to do better and give a set of guidance that actually tells you what we demand that you do, what we forbid that you do, what we tolerate that you do under what circumstances, we argue about how to parse words like cruel, degrading, and inhumane which can mean a great deal of different things to a great deal of different people.
My proposition is that we actually do not have enough law, that the law we do have largely was not written with our current problems in mind, and that the attempt to reason by analogy based on things we have done in the past and things we have tolerated in the past largely fails.
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Stuart Taylor, Jr.
Nonresident Senior Fellow, Governance Studies
Fellow and Research Director in Public Law, Governance Studies
Henry L. Shattuck Professor of Law, Harvard Law School