The Magazine

Please the Courts

Can judges and juries win the war on terror?

Aug 11, 2008, Vol. 13, No. 45 • By GREGORY S. MCNEAL
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Law and the Long War

The Future of Justice in the Age of Terror

by Benjamin Wittes

Penguin, 320 pp., $25.95

The United States has failed, as a legal and political culture, to address the threat of terrorism, a failure which has set the stage for judges to oversee wartime executive action. In Law and the Long War, Benjamin Wittes, formerly of the Washington Post, now at the Brookings Institution, anticipates the potential rise of unchecked judicial power. As conservatives brace for the consequences of the Supreme Court's Boumediene decision, they will find Wittes's critique of the Supreme Court to be particularly apt. But his criticism is not solely directed at the courts; instead, he offers a balanced critique of nearly all institutional players in the post-9/11 landscape.

This balance will please and anger conservatives and liberals alike. Neither side, however, should ignore his insight and extensive research, which detail the need for comprehensive laws to govern the detention and trial of suspected terrorists, reform interrogation policy, and modernize surveillance laws.

Wittes notes how the Court used "the legal disputes over the war on terrorism to carve itself a seat at the table in foreign and military policy; matters over which it has, for good reasons, a historically limited role." But he also finds a great deal of fault with what he terms the Bush administration's fixation with executive authority and failure to solicit the backing of Congress. Those who ardently defend theories of inherent executive authority may bristle at his characterization of George W. Bush's conduct, but they must also recognize that President Bush's approach, which failed to engage Congress, necessarily created a dialogue solely between the executive and judicial branches, a dialogue in which the courts almost always have the last word.

In language which should frighten conservatives, Wittes details how the confrontation between the executive and judicial branches "set the table for a judicial posture in warfare far more aggressive than anything the court has actually done so far." Taken alone, however, any one of the Court's terrorism cases has "been far less consequential than many commentators imagine."

The specter of a vastly different judicial posture .  .  . now haunts the executive branch-one in which the justices assert an inherent authority to review executive detention and interrogation practices, divine rights to apply .  .  . based on due process and vaguely worded international humanitarian law principles .  .  . and allow their own power to follow the military's anywhere in the world. Such a posture would constitute an earthquake in the relationships among all three branches of government, and the doctrinal seeds for it have all been planted.

If Wittes's observations are correct, conservatives should question whether fealty to theories of inherent executive power have sacrificed the broader war over judicial power for what can best be described as spotty victories in battles over terrorism policy. The reality for the next administration is that "neither unilateral rulemaking on the part of the President nor judicial review of whatever rules he makes up can mold a stable long-term architecture for a war that defies all of the usual norms of war." The only body capable of creating such a system is Congress, the branch least active and involved in the years since 9/11.

Wittes persuasively argues that "Congress has yet to put its mark on the law of terrorism and that the maturation of this essential body of law will founder badly until it does so." He also makes clear his case against a dominant role for the judiciary, insisting that

Society asks a lot of a judge who has never been to Afghanistan and who has never served in the military, and who has no intimacy with the day-to-day conduct of its overseas anti-terrorism operations. .  .  .

Judges, like the carpenter whose only tool is a hammer and for whom every problem therefore resembles a nail, will try to apply criminal justice evidentiary standards to combat operations.