Benjamin Wittes on Law and the Long War

The smash book of the season… reviews and commentary on Benjamin Wittes’ new book Law and the Long War: The Future of Justice in the Age of Terror (Penguin Press, 2008) have been popping up all over. This one from Bobby Chesney, via National Security Law List-Serve.

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* Ben Wittes, Law and the Long War: The Future of Justice in the Age of Terror

Ben Wittes’ forthcoming book is a must-read, particularly in light of Boumediene. The book addresses a wide range of post-9/11 legal issues relating to the problem of terrorism, including detention, interrogation, and surveillance. If you’ve followed Ben’s blogging on Slate’s Convictions, you know that his views neither support current policies nor the views of the administration’s more ardent critics. In any event, I strongly recommend the book.

Curtis A. Bradley, the Richard and Marcy Horvitz Professor of Law and Professor of Public Policy Studies at Duke University, offers this in the July/Aug 2008 issue of Foreign Affairs:

In an important new book, Law and the Long War, Benjamin Wittes, a fellow and the research director in public law at the Brookings Institution, critiques what he calls the “legal architecture” of the war on terror. He finds fault with many players: with the Bush administration, for its “consistent — sometimes mindless” fixation on executive power and its repeated unwillingness to seek support from Congress; with Congress, for not asserting itself; with the administration’s critics, for attempting to deny the White House the flexibility it legitimately needs to fight the war on terror; and with the Supreme Court, for using ongoing legal disputes “to carve itself a seat at the table in foreign and military policy matters over which it has [had], for good reasons, a historically limited role.” Wittes’ purpose, he explains, is to “shake somewhat the certainty” of both the executive-power enthusiasts and the administration’s critics alike. He also seeks to move the debate beyond formal arguments about what is and what is not allowed under existing law toward consideration of a new legal regime that would provide the government with needed flexibility while protecting individual liberties.

I’d rather not start posting reviews of reviews, but this one mentions “a missed metaphor”, suggesting what I think is if not an entirely novel view of things, at least crystalizes some of the thinking on the various discursive critiques of “wars on terror” (although the suggestion is from Wittes, not his reviewer):

Critics of the Bush administration have argued from the start of the war on terror that it is a war only in a metaphorical sense, much like the “war on drugs” or the “war on poverty.” This charge is unfair, and Wittes rightly disputes it. Al Qaeda is not a mere criminal organization; it is a military organization with the express purpose of fighting the United States. Even before the attacks of September 11, 2001, the United States was using military force against al Qaeda: in 1998, for example, President Bill Clinton ordered cruise-missile strikes after the U.S. embassies in Kenya and Tanzania were bombed. A week after 9/11, Congress gave the president broad authorization to use military force, implicitly targeting both the Taliban and al Qaeda. Within a month, the United States was engaged in a major and widely supported military campaign against both organizations in Afghanistan. The war metaphor for the battle against Islamist terrorism developed then, Wittes notes, because “in the short term, no remotely viable alternative to it existed.”

But, as Wittes also explains, the war model is an imperfect fit for terrorism. In a traditional conflict, enemy troops typically wear uniforms and are affiliated with a state, which can compel them to fight. Thus, in such cases, it is both relatively easy to identify combatants and reasonable to treat them as dangerous. In addition, if they are captured, their home state can bring their detention to an end — for example, by surrendering or entering into an armistice agreement.

It is much more difficult, however, to identify members of the enemy forces in the conflict with al Qaeda. The organization’s chain of command is often unclear, and many individuals involved with the group neither wear uniforms nor are citizens of a state officially at war with the United States. This increases the likelihood that harmless civilians will be incorrectly identified as enemies — a problem that has only been heightened in recent years as al Qaeda has morphed into a confederation of loosely associated groups. Formal membership in al Qaeda is also an inadequate proxy for dangerousness. The members of such a decentralized organization are likely to commit to it and to the hostilities it wages in varying degrees. Moreover, terrorist suspects are likely to be detained longer than traditional combatants, and perhaps significantly so, since they have no state to represent them and help bring the conflict to an end.

Ironically, as Wittes notes, although the war model was helpful to the executive branch early on, it may have unduly constrained the White House as the war on terror progressed. The template forced the executive branch to justify its policies by reference to “enemy combatants,” “war crimes,” and “the theater of war” — categories that do not readily apply to a global struggle against a nonstate terrorist organization or advance the full range of goals that the executive branch wished to pursue. For example, a war model envisions that hostilities will eventually end, at which time enemy prisoners will be released, but in the conflict with al Qaeda, there may be a need to detain particularly dangerous operatives indefinitely. Meanwhile, as Wittes observes, “the farther into the conflict America waded and the less military the day-to-day operation of the conflict came to appear, the harder it became to sustain public support for [the administration’s] activities.”

Chris Borgen notes both reviewer and subject at Opinio Juris, writing “I am sure that this is an essay–and a book–that will interest many Opinio Juris readers. So check out the essay (if not the book) and start thinking-up some comments as Ben Wittes and others will be joining us next month for an Opinio Juris symposium on his book.” Given the coalescence of thought and expertise at Opinio Juris for the Boumediene Insta-Symposium, that’ll be one to watch out for.

I’ll just add, as a non-lawyer: I’ve been pouring over the voluminous legal scholarship that’s been generated one refereed article at a time since 2001, on problems of refuge, concealment warfare, distinction, embeddedness, extraterritoriality, etc. I’ve also been involved as a non-legal advisor to the New Battlefields, Old Laws project, and seen how difficult these issues are for some of the most qualified legal brains on the planet. So it’s with some relief that I look forward to reading a single text that deals with all these myriad issues comprehensively.