Please the Courts
Can judges and juries win the war on terror?
Aug 11, 2008, Vol. 13, No. 45 • By GREGORY S. MCNEAL
Law and the Long War
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
Such language will convince many readers that the time for comprehensive legislation has arrived. Similarly, his descriptive analogies illustrate for the nonlawyer the necessity for a comprehensive legal structure. Writing about the consequences of congressional acquiescence, Wittes details how the possibility for a far more aggressive judicial posture sits like a "loaded and cocked" gun, with the Court having positioned "itself for a veritable sea change in the relationship between the federal branches in wartime. Yet it has skillfully done so without closing off any policy options for either the executive branch or the legislature in the short-term. It has not actually pulled the trigger."
While the first half of Law and the Long War recounts the failure of the political branches to construct a long-term legal architecture for the conflict with al Qaeda, and its attendant potential for judicial tyranny, the second half turns its attention to specific reforms. Wittes shows where human rights groups, administration officials, and other players have failed to seize moments of opportunity, where they overreached, and where they acted appropriately.
Analyzing detention authority and trials for suspected terrorists, Wittes admits that "detentions in the war on terrorism are something different from either war or criminal justice and they require legal arrangements that will hybridize the two." His solution is an administrative detention policy for overseas fighters and those who directly support them, built around a system using heightened civilian standards of detention and trials rooted in the law of war. Both would feature judicial review, but also legislatively proscribed review, which would protect against the threat of judicial overreaching.
The "frank truth" Wittes offers (and at which civil libertarians will bristle) is "that the American legal system tolerates indefinite detention in a number of settings less compelling than the disabling of overseas terrorists with no connection to the United States save the desire to kill its nationals." And in a few well-designed sentences he manages to deconstruct the "enemy combatant" theory upon which the Bush administration has premised its counterterrorism policy, while at the same time recognizing the underlying rationale: that detentions are "preventive incarcerations designed to keep extremely dangerous individuals from acting on their deeply-held murderous beliefs and instincts."
These are simple legal conclusions distilled from complex, entrenched legal policies, and Wittes disarms both sides in the debate over terrorism policy, compelling this reader to ask, "Why haven't we fixed this system?"
Wittes approaches the standards for detention in a pragmatic fashion, using civil confinement as his model, with accommodations made for intelligence information and limits on the duration of detention. Illustrating the common-sense nature of his approach, Wittes writes:
While his standards require more proof than the current military detention process, Wittes convincingly argues that bolstering detention credibility will pave the way for trials which may lack all the procedural protections found in federal courts.
For those trials, Wittes remains pragmatic, arguing that federal courts are inadequate for trying terrorists. And to support his argument he cites multiple examples, ranging from the 1993 World Trade Center bombing trial to the José Padilla case, "successes" with serious underlying flaws. His reform goal is a "trial regime that gives detainees enough process to satisfy the commands of the Constitution and garner international tolerance, if not quite admiration, yet at the same time facilitates the maximum number of criminal trials." And to achieve that goal, Wittes needs a system of trials premised on the laws of war, with jurisdiction limited to violations of that body of law. Any other forum will necessarily trigger the full protections of federal courts.
Key to his approach is the necessary link between detention and trial, which augurs that a system with fewer protections than those found in federal court can only survive if preceded by increased standards for detention.
Wittes next turns his attention to interrogation policy, advocating aggressive tactics which "walk up to the line of legality in an effort to get information that will stop the next attack." Casting aside the well-worn ticking time bomb scenario, he focuses instead on a practical reality: the case of Khalid Sheikh Mohammed, whose interrogators used waterboarding and other techniques which walked up to, and perhaps crossed, the line of legality.
Of course, debating the murky bounds of acceptable interrogation techniques necessarily leads to a discussion of torture and coercion. On this score Wittes offers consistently balanced research, citing examples from both sides of the debate to demonstrate the successes and failures of coercive interrogation. He ultimately concludes that "without a rigorous understanding of whether coercion works under any circumstances and, if so, what those circumstances look like, we have to accept at least the possibility that it might work."
The fact that it might work will lead security services to err on the side of preventing a catastrophe. Thus, Congress must grapple with whether interrogators should err "within the law or extra-legally, and if the latter, what the contours of that extra-legal action ought to look like."
Wittes's solution, consistent with his theme, is congressional action mandating humane treatment, but providing for flexibility in emergencies. He would require that "exceptions are just that-exceptions to the rules, not the cases that define them." He dismisses the proposal of congressional Democrats to obligate the CIA to follow the Army Field Manual, pragmatically recognizing that the CIA deals with different classes of detainees than the military, and requires different standards. To deal with exceptions, Wittes believes Congress should create statutory authority for the president to authorize emergency conduct, with appropriate notice to congressional intelligence committees. Doing so would clarify political accountability and keep the legislature informed.
This proposed reform, while practical and effective, faces two obstacles which Wittes leaves unaddressed: Convincing the president that subjecting himself to such congressional oversight doesn't encroach upon his powers as commander in chief; and given the covert nature of these interrogations, whether a president would comply with the reporting requirements.
Wittes also provides an edifying examination of surveillance policy, discussing the NSA surveillance controversy and reform of the Foreign Intelligence Surveillance Act (FISA). His task was a daunting one, given the secret nature of the programs, but, as he points out: "At no time since FISA's passage has secrecy not encumbered public discussion of surveillance law. . . . Public debates over FISA have always rested on layers of inference built on top of a foundation of quicksand." For that reason this chapter is most useful for the way it frames the debate, rather than for any reforms it proposes. As Wittes admits, "The degree of secrecy simply precludes the sort of granular policy prescription we can attempt for, say, detention, trial, and interrogation."
He concludes by arguing that, Boumediene notwithstanding, America still has not defined its procedures for detention, interrogation, and surveillance. How to do so is "terrifingly, dangerously, paralyzingly non-obvious," but increasingly necessary. More terrifying, perhaps, are the unanswered questions: Will the next president engage Congress, and will Congress respond? Will the political branches accept Wittes's charge and design a system of laws for the long war, or will they continue to abdicate their responsibilities, paving the way for judicial supremacy?
Gregory S. McNeal is professor of law at Pennsylvania State University.