By granting the right of habeas corpus to prisoners at Guantanamo Bay, the Supreme Court recently knocked down the handiwork of both the executive branch and Congress. Meanwhile, the House passed a new surveillance bill last week, after years of bitter debate and temporary fixes. And yet who knows what the Supreme Court will say after the bill becomes law?
Clearly we are still grappling with the basic constitutional conundrums of the age of global jihad. In “Law and the Long War,” Benjamin Wittes, a fellow at the Brookings Institution, sets out to determine just where our crucial post-9/11 policies fit in our constitutional framework and legal traditions. Along the way, he tries to define the proper role of our three branches of government amid the changing circumstances of a war unlike any other we have fought in our past.
When it comes to enemy combatants, Mr. Wittes argues that the Bush administration has done a respectable job of sorting out the prisoners in its custody, sending “the bit players” home while taking “big steps to concentrate the hard core at Guantanamo.” What the administration has failed to do, he says, is to arrive at a set of prisoner-review procedures — open and creditable — that the American people will accept as a fair way of justifying long-term incarceration in a war that may not have a definable end-point.
Indefinite and arbitrary-seeming detention has had the effect, Mr. Wittes notes, of provoking powerful fears of the “unchecked inherent powers of the president.” Yet the critics who favored supplanting those powers “with the unchecked inherent powers of the judiciary” also have it wrong. Injecting the judicial branch into matters that it is ill-equipped to handle, he argues, can have one of two results: “paralyzing our response to terrorism” or “corrupting the judiciary” as it inevitably bends the law to accommodate the often brutal exigencies of counterterrorism.
The conflict between law and necessity has arisen nowhere more sharply than in the debate over “enhanced interrogation techniques” — or, in noneuphemistic English, torture. Here Mr. Wittes faults the Bush administration more sharply. He acknowledges that very harsh techniques may be necessary at least in emergency circumstances. But in the matter of high-stakes interrogations– for example, the CIA’s interrogations of top al Qaeda planners like Khalid Sheikh Mohammed and Abu Zubaydah– the “administration has dug itself the biggest hole.”
An interrogation method like waterboarding (which simulates drowning) may indeed avert an impending disaster. But it is “somewhere between difficult and impossible,” Mr. Wittes says, to square the practice with the black-letter law on our books–a torture statute that forbids, among other things, the “threat of imminent death.”
The administration resolved this problem by simply defining torture narrowly enough to permit waterboarding– a mere “dunk in the water” is what Vice President Cheney called it. But stretching language in this way, writes Mr. Wittes, “is a kind of double-talk that denudes law of meaning and renders the presidency morally laughable.” It would have been far better, he argues, to wrap such extreme — and rare–cases in secrecy. For the longer term, Mr. Wittes would prefer a statute that requires the humane treatment of captives and “yet build[s] into it a certain degree of flexibility for the true emergency.” He recognizes that such provisions would have to do something “genuinely extraordinary,” namely, “contemplate the circumstances of their own violation.”
On surveillance, Mr. Wittes is a hawk. He believes that the National Security Agency’s warrantless surveillance program was constitutionally plausible and “hardly unreasonable.” He observes that all 19 of the 9/11 terrorists could have been identified and connected to one another if there had been “real-time government access to routine transactional data,” including telecom addresses. Such material, he says, “is simply too powerful a tool for government to ignore.”
The “devilishly tricky” problem he seeks to solve is how to distribute counterterrorism data widely enough so that it is useful to the authorities and narrowly enough so that the public will not feel just concerns about potential abuse. Part of the solution, he thinks, is greater accountability to the congressional intelligence committees, which the administration has “too often needlessly kept in the dark about matters solidly within their purview.”
On the whole, Mr. Wittes would like to see Congress playing a greater role in the war on terror. Like Jack Goldsmith, a former Justice Department official, he is worried about the legitimacy of policies that are asserted as if by presidential fiat. Conservatives, he says, should have “anticipated to some degree that the courts would respond to muscular presidential actions with assertions of power of their own.”
But how realistic is the prospect that Congress will rise to the occasion? Mr. Wittes concedes that, so far, Congress has engaged in an “unforgivable abdication” of its responsibilities. So the answer is: probably not realistic at all. Nonetheless, Mr. Wittes makes a strong case for adjusting our policies so that the public can support them more robustly and for at least trying to forge a consensus among the three branches of government. As matters now stand, we are needlessly fighting a war on two fronts: against our enemies and against ourselves.
Mr. Schoenfeld is the senior editor of Commentary.