Benjamin Wittes from the Brookings Institute has a new book out called Law and the Long War. As one of my bizarre little quirks I like to go to the local chain bookstore (here in Canada called Chapters) and read intros and conclusions–and if they are good, then scan the main arguments/policies–of new texts.
Yesterday I checked out Inside Egypt by John Bradley (brilliant book, more on that one in a separate post) and Wittes.
Wittes’ work is well thought out, bipartisan (in the best sense of sustainable for the long run regardless of which party is in charge, akin to the policy of containment during the Cold War), taking seriously both civil liberties and the exigencies of the conflict, critiquing both current deadlocked camps. In other words, it has sadly zero chance I would bet of ever getting implemented.
Wittes’ Brookings page is here with links to a number of articles of his on the subject. The central argument of the text is that what is needed is a Legislative Lens to this issue contra the Republicans (who have relied exclusively on executive power/privilege) and liberals/Democrats/libertarians who have countered with the Courts.
As Justice Scalia said in the Hamdan case, the failure is on the part of Congress. It’s Congress’ job to set this frame and guide this policy. The executive can not be trusted with no check on power–see the Bush administration, torture, indefinite detention, rendition, black hole sites, and the rest. The Supreme Court has repeatedly undercut their efforts on Secret Tribunals, allowing prisoners in Gitmo to use DC courts. But they have not and can not enforce such measures. SCOTUS is not built to deal with this issue. And as Wittes correctly (and rather bravely in the face of our current fundamentalist so-called originalist legal discourse) points out, the Constitution gives no real clarity on this point. Hence the structural inability of SCOTUS to be anything other than a check. But not the signer as it were.
Contra (Bushian) conservatives, he criticizes the administration for indefinite detention, lack of legal rationale other than the indefinite extension of war powers (nearly a decade into this thing). Contra the left, he does think that they need to more carefully consider that this War is not the same as previous ones and automatic de facto assumption of simply fitting into the previous legal structures/rationale is not necessarily the best option.
Check out this article outlining a Tribunal Courts (a la the right) with massive oversight and defendant rights historically granted in the common law tradition (a la the left/center).
The rest of the book lays out some sane policies on how this legislative umbrella should look: detention, surveillance, terror courts (some really sharp points on that front) and the like.
But even with any possible disagreements as to the exact nature of the legislation on any/all of these specific issues, I don’t think minus those who simply wanted unchecked/authoritarian powers for the presidency (The Mitt Romneys, Dick Cheneys, and Hugh Hewitts of the world) consensus should be built around the notion that it is Congress that must solve this lack of a legal framework in the Long War.
Here is a video Wittes with similar counter-consensus smarts on reforming judicial nominations: