Terror and the Law

It is much more difficult, however, to identify members of the enemy forces in the conflict with al Qaeda. The organization's chain of command is often unclear, and many individuals involved with the group neither wear uniforms nor are citizens of a state officially at war with the United States. This increases the likelihood that harmless civilians will be incorrectly identified as enemies -- a problem that has only been heightened in recent years as al Qaeda has morphed into a confederation of loosely associated groups. Formal membership in al Qaeda is also an inadequate proxy for dangerousness. The members of such a decentralized organization are likely to commit to it and to the hostilities it wages in varying degrees. Moreover, terrorist suspects are likely to be detained longer than traditional combatants, and perhaps significantly so, since they have no state to represent them and help bring the conflict to an end.

Ironically, as Wittes notes, although the war model was helpful to the executive branch early on, it may have unduly constrained the White House as the war on terror progressed. The template forced the executive branch to justify its policies by reference to "enemy combatants," "war crimes," and "the theater of war" -- categories that do not readily apply to a global struggle against a nonstate terrorist organization or advance the full range of goals that the executive branch wished to pursue. For example, a war model envisions that hostilities will eventually end, at which time enemy prisoners will be released, but in the conflict with al Qaeda, there may be a need to detain particularly dangerous operatives indefinitely. Meanwhile, as Wittes observes, "the farther into the conflict America waded and the less military the day-to-day operation of the conflict came to appear, the harder it became to sustain public support for [the administration's] activities."

THE RULES OF LAW

The descriptive inadequacy of the war model creates problems for regulating the war on terror through law. By its nature, legal reasoning tends to be backward-looking: it focuses on the Constitution and existing statutes, judicial precedents, and historical practices rather than on designing a new framework. Lawyers and judges are now debating, for example, whether the war on terror is controlled by a Supreme Court decision from the Civil War era or another one from World War II, even though neither addresses the unique features of the current conflict.

There is nothing inherently wrong with this sort of reasoning. It is what lawyers and judges are trained to do, and it is useful in many settings. The past can sometimes provide important guidance about what works and what does not and about a nation's collective values. Furthermore, the approach is properly designed to limit the ability of administration lawyers and unelected federal judges to make fundamental policy choices. But it is not the ideal way to regulate a long-term security situation that raises difficult and novel issues. Courts tend to hide the functional considerations that influence their decisions, and as they strain to interpret statutes or precedents in ways that accommodate their preexisting preferences, they can undermine the rule of law.

Another problem is that there is little existing law that is directly applicable to the war on terror. None of the Supreme Court's war-powers decisions from earlier conflicts addresses this one's unique features. This is the reason why in its 2004 decision in Hamdi v. Rumsfeld, the Supreme Court declined to rule on the most difficult legal questions, such as how to define who, other than fighters on the battlefield in Afghanistan, qualifies as an enemy combatant and how long these enemy combatants can be detained. International law also provides only limited guidance. The Geneva Conventions are surely some of the most important post-World War II treaties, but they are ill suited to regulate the war on terror because they are primarily focused on conflicts fought by organized state armies. It would be an overstatement to say that there is no law at all to guide efforts to combat terrorism, but as Wittes observes, much of what is available are "underdeveloped strands of law intended for other purposes, interacting in peculiar and often perverse ways."

Perhaps as a result, the current approach has tended to work in a piecemeal fashion. As Wittes persuasively explains, because the government's various tactics in the war on terror are interconnected, the government can adapt to a judicial ruling about one of them by altering its practices with respect to another. For instance, if the courts make it too difficult for the administration to resort to military trials, the government might start holding suspects without trial for a longer period. Increased judicial oversight of the treatment of detainees at Guantánamo may cause the military to rely more heavily on detention centers in, say, Afghanistan. This substitution effect -- a problem in other areas of judicial decision-making as well -- can make it difficult to develop a coherent and effective regulatory regime.

JUDICIAL UNRESTRAINT

One of the few instances in which Wittes' analysis misses the mark is his treatment of the Supreme Court. Wittes is highly critical of the Court for playing too active a role in regulating the war on terror. He acknowledges that the Court has not yet imposed significant limitations on the government's ability to fight terrorism, but he finds "doctrinal seeds of a far more aggressive judicial posture" and warns of a "major expansion of judicial power over foreign policy and warfare."