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Foreign Affairs From The Anthology: The U.S. vs. al Qaeda
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Terror and the Law

The Limits of Judicial Reasoning in the Post-9/11 World

In This Review

Law and the Long War: The Future of Justice in the Age of Terror

By Benjamin Wittes
Penguin Press, 2008
277 pp. $25.95

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 [

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