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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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.