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Law and Terror

A legal analyst argues for a novel solution to the legal wars over anti-terrorism policy: Congress doing its job.
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In December 2005, The New York Times set off a political chain reaction by revealing a surveillance tactic that the Bush administration had begged the newspaper to keep secret. The debate took a familiar shape. Civil libertarians and the left accused the National Security Agency of violating federal law and turning back the clock to an era of unrestrained domestic spying. The right and Bush administration supporters defended the monitoring of international phone calls and e-mails as legal and necessary in tracking terrorists. Courts objected to the end run around their role in approving search warrants. Congress debated policy changes until the clock ran out on the Bush years. And journalists awarded the Pulitzer Prize to the Times’ James Risen and Eric Lichtblau for fulfilling the profession’s watchdog role.

The surprise ending to this story? It was the wrong debate at the wrong time, or so argues legal analyst Benjamin Wittes in Law and the Long War: The Future of Justice in the Age of Terror. With a political home base that’s hard to peg and an ability to rise above the fray while not losing sight of practical details, Wittes moves far beyond a mere incremental contribution to the growing stack of journalistic, legal and academic critiques of the war on terror.

The Hollywood-script shorthand for Wittes’ thesis looks like this: While a Mad Max scene rages in the street below, several codgers sit in the dark-paneled serenity of an old-fashioned men’s club, harrumphing about how they would have dealt in their day with such ruffians. The old gent asleep in the corner? That would be Congress. Across the room, mustache-twirling villains (“Cheney,” “Addington” and “Yoo”) square off against a nerdy band of ACLU and Amnesty International lawyers for a unitary-executive death match. A crowd of flabby journalists watches from the corner table, sipping whiskey and lustily enjoying the show — failing to notice that no one ever wins.

Click here to read more Miller-McCune book reviews.

Click here to read more Miller-McCune book reviews.

Which is Wittes’ point: that during the extended interlude between U.S. terror attacks, outmoded caricatures have hijacked the law-of-war legal discussion. A Brookings Institution scholar and New Republic writer, Wittes attempts to break the cycle that has driven intelligence policy and legal strategy for generations — from fright to aggressive response to backlash and around again.

This is far from the first, or last, word on the subject of anti-terror strategy and the law. Several books have provided useful perspectives — but mostly as retrospectives — including those by lawyers, such as administration veteran Jack Goldsmith (The Terror Presidency: Law and Judgment Inside the Bush Administration), and those by journalists, such as Charlie Savage, then of The Boston Globe and now at the Times (Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy), and the Times’ Lichtblau (Bush’s Law: The Remaking of American Justice). Wittes’ book builds on those and one-ups their exposés of law breaking and bending by figuring out what to do about them now. Read together with the past few years’ revelations, Law and the Long War provides a critically needed warning of the disconnect between rhetoric on both sides and reality, as well as a guide to policymakers under a new president in search of legal structures that deal effectively with terrorists but do not shred constitutional norms. Along the way, perhaps unwittingly, Wittes shows what a constructive form of fact-based commentary and journalism can do to enrich the civic conversation.

Wittes’ mission is to explode the binary diagram that overlies the terror debate. Security or liberty? Law enforcement or prevention? “Legal black holes” or overlawyering every decision? “The administration’s infatuation with presidential power,” as Wittes puts it, “or the civil libertarian love affair with judicial power”? The dichotomies spawn gridlock, litigation and partisan shouting but little else.

To pull out of this rut while resisting the understandable impulse to counter the Bush administration’s ham-handed, go-it-alone tactics, Wittes says, we need more permanent legal infrastructure for a threat that doesn’t match the tools in our defense kit. His solution is almost quaint in its civics-class basics: Rather than bank on truth to emerge from a pattern of executive overreaching followed by judicial smackdowns, Wittes demands creative solutions from Congress.
None of his proposals, to his credit, will meet an immediate embrace from partisans invested in the existing feuds. They’re too harsh for administration critics yet not harsh enough for neocon true believers. Which is not to say that they’re a squishy compromise meant to sell moderation to both extremes or simply a rehash of arguments made already by liberal hawks. In four key areas — detention, trial, interrogation and surveillance — Wittes outlines his first draft of a new legal architecture for the long war, including:

• A new system of administrative detention, a sort of military-civilian hybrid that enables a fairer fight between detainee and government but is candidly less protective than ordinary criminal courts. To support his case, Wittes lays out his findings from an extensive review of Guantánamo detainees’ cases. The findings (to be fleshed out, he says, in an academic paper later) put the lie to the detainees-as-victims myth.

• A two-tiered approach to interrogation rules, allowing the Central Intelligence Agency to use rougher tactics than the
military could but with elaborate safeguards for chain-of-command approval.

• Looser rules governing intercepts of citizens’ communications but far moredetailed ones on government data mining.

The most clearly thought-out ideas come in the chapter on surveillance, where Wittes makes a compelling case that the existing laws miss the point entirely. First, they were designed for a distinctly different conflict. Regulating Cold War spy-versus-spy activities shares little in common with tapping into the plans for the next domestic terrorist attacks. Second, we find ourselves at a much different point on the spectrum between, at one end, excessive and largely unregulated surveillance and, at the other, extreme limits on U.S. intelligence gathering. The Foreign Intelligence Surveillance Act sprang from revulsion with spying on American dissidents. But even at their bloodiest fringe, our former dissidents seem benign compared to today’s nuke-seeking jihadists, who clearly are legitimate targets of espionage. Finally, Wittes vividly illustrates the failings of a regulatory structure intended to impede widespread interception of calls and e-mails while doing little to oversee the use of those data once they’re collected.

For all its specifics, Wittes’ brief volume falls far short of a legislative battle plan. Littered with vague exhortations to make the legal rules on anti-terror activity appropriate, fair and sensible, the book at times strikes the tone of a management consultant’s PowerPoint presentation: inarguable but easier said than done. Wittes also fails to wrestle deeply enough with a point, made persuasively by Goldsmith, about the perverse effects of laws that rely too heavily on criminal penalties. Goldsmith, the former head of the Department of Justice’s Office of Legal Counsel who famously disavowed many of John Yoo’s most radical legal opinions on detention and torture, paints a convincingly scary picture of Bush administration policymakers driven to anti-terror overreaching by secret and apocalyptic intelligence reports — and then frightened into evasion by the threat of criminal investigation, ruinous defense fees and prison terms. Wittes avoids a messy but inevitable legislative bramble but only by failing to explain adequately how his rules can have teeth without triggering such responses.

But at least he tries to build something new rather than sticking to the muckraker role. It’s a script that more journalists could follow if they’re truly working to inform a constructive debate that will put 2001-08 behind us as an overly long post-9/11 era of confusion preceding clarity.

Mark Obbie teaches magazine journalism at Syracuse University’s S.I. Newhouse School of Public Communications, where he directs the Carnegie Legal Reporting Program.

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