When it comes to the terrorist threat, the Bush administration’s legal approach has entangled itself in two debates: Detention, trial, interrogation and surveillance; and how the authority to determine policy should be split among the three branches of government. Administration critics argue that President Bush has gone too far with the former and violated civil liberties; the administration believes that harsh measures are necessary – and the executive should be calling the shots.
In “Law and the Long War,” Benjamin Wittes takes a middle position in both debates. He claims that traditional law enforcement methods can’t handle foreign terrorism, but that terrorist suspects should enjoy greater legal protections than the administration has so far granted them.
“Any proper legal architecture for this war will at once restrain the executive branch far more than the Bush administration has wanted to be restrained, yet at the same time enable it far more than civil libertarians and human rights groups find congenial.” And he thinks that Congress should play a greater role in formulating terrorism policy, for “only Congress can deliver [a legal] framework and the legitimacy it will convey to the presidency in the exercise of his awesome powers of preemption.”
Clearly written and fair-minded, Wittes’ book is the best introduction for a popular audience to the difficult legal issues surrounding the administration’s response to the 9/11 attacks.
Wittes dishes out blame to all three institutions for current troubles with counterterror policy: to the Bush administration, for claiming too much power for the executive (“a sometimes mindless .ñ.ñ. fixation on executive authority”); to the Supreme Court, for abandoning legal precedents on which the Bush administration reasonably relied (the Court “has used the legal disputes over the war on terrorism to carve itself a seat at the table in foreign and military policy matters over which it has, for good reasons, a historically limited role”); and to Congress, for failing to insist on a greater role in setting policy (“Nothing Congress has done to date justifies particular faith”).
When it comes to the use of military force against suspected terrorists, preventive detention, trials with reduced procedural protections, harsh albeit carefully controlled interrogation practices and expanded surveillance, Wittes ends up more closely aligned with the Bush administration than with its mainstream critics.
True, many of the Bush administration legal documents overreached, but Bush’s main failure was a matter of political tactics: he could have obtained congressional authorization for nearly everything he needed to do, but he failed to do so because an obsession with strengthening executive power trumped pragmatic politics. By failing to go to Congress more often, Bush incited public suspicion about his policy choices that is for the most part undeserved. Meanwhile, resistance from the courts has thrown the entire policy structure into disarray.
All of this is sensible, but Wittes’ argument that Congress should take the reins of policy flies in the face of his harsh words for Congress’s performance. If, as Wittes argues, Congress is irresponsible and tried to avoid accountability, why would it accept an invitation to the policymaking table? There is also a good reason why Congress defers to the executive in wartime – and in peacetime as well. When Congress legislates, the law tends to stick. But such a cumbersome institution has a tougher time revisiting the law when circumstances change. Comprehensive legislative regulation of executive practices becomes especially inappropriate for problems that are fluid and unpredictable. Indeed, Wittes discusses the primary example: the surveillance statute that reflects the technology and security worries of the 1970s, not those that prevail in the age of the Internet and al Qaeda.
This difficulty explains why Congress so often issues vague authorizations to the president, a practice that goes back to the New Deal. Within broad constraints set by Congress, the executive branch determines environmental, antitrust and immigration policy, with varying but often limited participation of the courts. In view of this long history, it would be surprising if national security were any different. But Wittes does not seem satisfied with the vague authorizations that Bush has received from Congress.
It is certainly possible that Bush’s war on terror problems stem from his failure to go to Congress often enough. But, more deeply, they stem from his bad decisions in Iraq and elsewhere, which have cost him his credibility, and from the political challenge of maintaining public support for a long and often invisible conflict with a hazy but genuine enemy.
Eric Posner is professor of Law at University of Chicago.
Law and the Long War: The Future of Justice in the Age of Terror
by Benjamin Wittes
Penguin Press