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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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:

Had Jose Padilla wished to blow up apartment buildings because of delusions associated with schizophrenia, American law would tolerate his commitment for as long as necessary to secure the public from him. Surely, the fact that he wished to blow up those buildings on assignment from Abu Zubaydah should not preclude a fixed .  .  . period of detention so federal authorities can protect the public, interrogate him, and try to build a criminal case against him.

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.