Terror and the Law

Lawyers and courts have become a central part of the Bush administration's "war on terror." The Justice Department's so-called torture memos and other legal documents have triggered extensive debates. The federal courts have entertained numerous habeas corpus challenges from detainees at the Guantánamo Bay detention center, as well as lawsuits on issues ranging from the electronic surveillance of U.S. citizens to the rendition of terrorist suspects to foreign countries. The Supreme Court has already issued three significant decisions concerning the war on terror, and by the time this review is published, it is expected to have issued a fourth.

Yet many fundamental legal questions remain unanswered. Who qualifies as an "enemy combatant" in this conflict? How must this classification be made? How long can such combatants be detained by the U.S. military without trial? These issues remain unresolved partly because the war on terror has been regulated not by Congress but by interactions between the executive branch and the courts, and the courts have tended to decide issues in an ad hoc and case-specific manner. Such an approach can be sensible, especially in the face of fluid circumstances. But as the war on terror becomes a more permanent state of affairs, it is becoming increasingly inadequate.

In an important new book, Law and the Long War, Benjamin Wittes, a fellow and the research director in public law at the Brookings Institution, critiques what he calls the "legal architecture" of the war on terror. He finds fault with many players: with the Bush administration, for its "consistent -- sometimes mindless" fixation on executive power and its repeated unwillingness to seek support from Congress; with Congress, for not asserting itself; with the administration's critics, for attempting to deny the White House the flexibility it legitimately needs to fight the war on terror; and with the Supreme Court, for using ongoing legal disputes "to carve itself a seat at the table in foreign and military policy matters over which it has [had], for good reasons, a historically limited role." Wittes' purpose, he explains, is to "shake somewhat the certainty" of both the executive-power enthusiasts and the administration's critics alike. He also seeks to move the debate beyond formal arguments about what is and what is not allowed under existing law toward consideration of a new legal regime that would provide the government with needed flexibility while protecting individual liberties.

With these goals in mind, Wittes offers general strategies for legislative reform on issues such as surveillance, detention, interrogation, rendition, and prosecution. Some of these strategies, such as the call to establish an administrative detention scheme that would be supervised by the courts and would involve periodic assessments of suspects' dangerousness, resemble proposals that have been floated recently. Others, such as requiring the CIA to disclose its interrogation techniques (and deviate from them only with express authorization from the president and with notification to Congress), are more novel. With all of these proposals, Wittes expresses the view that "only Congress can ultimately write the law of this long war."

In his critique as well as in his proposals for reform, Wittes engages with arguments from both the left and the right in a remarkably detached and fair-minded way. Unlike many commentators, he seems genuinely interested in moving past partisan politics and finding workable solutions. The result is a cogent and generally persuasive analysis. The book does, however, have some minor shortcomings: in particular, Wittes' criticism of the Supreme Court seems overstated, and his methodology is not always consistent.

A MISSED METAPHOR

Critics of the Bush administration have argued from the start of the war on terror that it is a war only in a metaphorical sense, much like the "war on drugs" or the "war on poverty." This charge is unfair, and Wittes rightly disputes it. Al Qaeda is not a mere criminal organization; it is a military organization with the express purpose of fighting the United States. Even before the attacks of September 11, 2001, the United States was using military force against al Qaeda: in 1998, for example, President Bill Clinton ordered cruise-missile strikes after the U.S. embassies in Kenya and Tanzania were bombed. A week after 9/11, Congress gave the president broad authorization to use military force, implicitly targeting both the Taliban and al Qaeda. Within a month, the United States was engaged in a major and widely supported military campaign against both organizations in Afghanistan. The war metaphor for the battle against Islamist terrorism developed then, Wittes notes, because "in the short term, no remotely viable alternative to it existed."

But, as Wittes also explains, the war model is an imperfect fit for terrorism. In a traditional conflict, enemy troops typically wear uniforms and are affiliated with a state, which can compel them to fight. Thus, in such cases, it is both relatively easy to identify combatants and reasonable to treat them as dangerous. In addition, if they are captured, their home state can bring their detention to an end -- for example, by surrendering or entering into an armistice agreement.