Please the Courts

...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...

...More terrifying, perhaps, are the unanswered questions: Will the next president engage Congress, and will Congress respond...

...matters over which it has, for good reasons, a historically limited role...

...Such language will convince many readers that the time for comprehensive legislation has arrived...

...But his criticism is not solely directed at the courts...

...Wittes also provides an edifying examination of surveillance policy, discussing the NSA surveillance controversy and reform of the Foreign Intelligence Surveillance Act (FISA...

...Yet it has skillfully done so without closing off any policy options for either the executive branch or the legislature in the short-term...

...Casting aside the wellworn 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...

...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...

...He concludes by arguing that, Boumediene notwithstanding, America still has not defi ned its procedures for detention, interrogation, and surveillance...

...The “frank truth” Wittes offers (and at which civil libertarians will bristle) is “that the American legal system tolerates indefi nite 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...

...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 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...

...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...

...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...

...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...

...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...

...Taken alone, however, any one of the Court’s terrorism cases has “been far less consequential than many commentators imagine...

...The fact that it might work will lead security services to err on the side of preventing a catastrophe...

...Doing so would clarify political accountability and keep the legislature informed...

...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...

...Wittes shows where human rights groups, administration offi - cials, and other players have failed to seize moments of opportunity, where they overreached, and where they acted appropriately...

...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...

...For those trials, Wittes remains pragmatic, arguing that federal courts are inadequate for trying terrorists...

...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...

...It has not actually pulled the trigger...

...The only body capable of creating such a system is Congress, the branch least active and involved in the years since 9/11...

...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...

...instead, he offers a balanced critique of nearly all institutional players in the post-9/11 landscape...

...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...

...This balance will please and anger conservatives and liberals alike...

...Wittes’s solution, consistent with his theme, is congressional action mandating humane treatment, but providing for fl exibility in emergencies...

...Surely, the fact that he wished to blow up those buildings on assignment from Abu Zubaydah should not preclude a fi xed . . . period of detention so federal authorities can protect the public, interrogate him, and try to build a criminal case against him...

...And to support his argument he cites multiple examples, ranging from the 1993 World Trade Center bombing trial to the Jos...

...Similarly, his descriptive analogies illustrate for the nonlawyer the necessity for a comprehensive legal structure...

...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...

...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...

...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 defi es all of the usual norms of war...

...Both would feature judicial review, but also legislatively proscribed review, which would protect against the threat of judicial overreaching...

...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...

...Of course, debating the murky bounds of acceptable interrogation techniques necessarily leads to a discussion of torture and coercion...

...BY GREGORY S. MCNEAL 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...

...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...

...But he also fi nds a great deal of fault with what he terms the Bush administration’s fi xation with executive authority and failure to solicit the backing of Congress...

...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...

...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...

...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...

...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 fi xed this system...

...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...

...Wittes approaches the standards for detention in a pragmatic fashion, using civil confi nement as his model, with accommodations made for intelligence information and limits on the duration of detention...

...Public debates over FISA have always rested on layers of inference built on top of a foundation of quicksand...

...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...

...Any other forum will necessarily trigger the full protections of federal courts...

...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...

...Padilla case, “successes” with serious underlying fl aws...

...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-today conduct of its overseas anti-terrorism operations...

...How to do so is “terrifingly, dangerously, paralyzingly nonobvious,” but increasingly necessary...

...As conservatives brace for the consequences of the Supreme Court’s Boumediene decision, they will fi nd Wittes’s critique of the Supreme Court to be particularly apt...

...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...

...If Wittes’s observations are correct, conservatives should question whether fealty to theories of inherent executive power have sacrifi ced the broader war over judicial power for what can best be described as spotty victories in battles over terrorism policy...

...He would require that “exceptions are just that—exceptions to the rules, not the cases that defi ne them...

...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...

...For that reason this chapter is most useful for the way it frames the debate, rather than for any reforms it proposes...

...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...

...His solution is an administrative detention policy for overseas fi ghters and those who directly support them, built around a system using heightened civilian standards of detention and trials rooted in the law of war...

...While the fi rst half of Law and the Long War recounts the failure of the political branches to construct a longterm legal architecture for the confl ict with al Qaeda, and its attendant potential for judicial tyranny, the second half turns its attention to specifi c reforms...

...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 given the covert nature of these interrogations, whether a president would comply with the reporting requirements...

...Gregory S. McNeal is professor of law at Pennsylvania State University...