Customer Reviews

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

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Author Benjamin Wittes opens his much-praised book with a shocking display of intellectual dishonesty. To make the case for, in Dick Cheney's words, "working the dark side" in the "war on terror," he offers a supposedly illuminating anecdote. But instead of illumination, he gives us a naked bait-and-switch ploy, he crosses the line by violating Godwin's Law, and he wildly distorts the facts of his anecdote as well as exaggerating the implications thereof.

I very nearly stopped reading right at that point, but I continued on. Surely, I thought, a book so highly praised couldn't all be like that terrible, Glenn Beck-like opening. Surely a book lauded for being "masterful," "fair-minded" and "thoughtful" would start to overflow with wisdom if I just persevered. Well, that didn't happen. The book is terrible from start to finish.

Space doesn't permit me to explore every issue that Wittes addresses, so to illuminate the flaws in his book I'll focus on his treatment of the issue of detention. Wittes announces his intention to get Americans who love liberty, like me, to "cross the psychological Rubicon" of admitting the supposed necessity of locking up large numbers of people not because they have committed crimes, but because someone in the government decides that they might commit crimes in the future.

Wittes begins his efforts by trying to show that detention is as American as apple pie, by giving what he says are examples of "routine" detention that are "given no thought" by Americans. He fails to persuade the skeptical reader, however. His "closest to home" example of supposedly legitimate detention is the confinement of the mentally ill. This is a poor example because, first, the history of this practice is rife with massive abuses, and second, because the government's authority to confine the mentally ill has, rightly, been sharply curtailed in the past few decades.

Next, Wittes tries to make the case that there are people currently in detention at Gitmo who simultaneously are impossible to convict of any crime, and are so deadly that we have to lock them up forever, without trial. His poster child for these "dangerous enemies" is one Bashir Nasir al-Marwalah. Presumably, he selected al-Marwalah because his case is one of the strongest examples of the desperate need for detention without trial.

What's shocking is how weak a case Wittes makes for detaining al-Marwalah. There are innumerable recent cases that illustrate how easy it is for the government to make an innocent person appear guilty enough to justify criminal charges against them--the Bear Stearns prosecutions, the Duke lacrosse case--and sometimes even to convict them (as in the Tulia cases recounted by Nate Blakeslee). If al-Marwalah was at all dangerous, Wittes should have had no difficulty making him appear to be the second coming of Carlos the Jackal.

Yet, the worst thing that Wittes can find, combing carefully through a lengthy interrogation of al-Marwalah and cherry-picking tiny fragments of the man's answers, is that al-Marwalah at one point declares "I know I am an Arab fighter." That vague statement hardly constitutes conclusive proof that releasing al-Marwalah would create an imminent danger of violent harm to Americans, even if one discounts the fact that he also explicitly said that he has no desire to kill Americans. If this case is the most potent evidence Wittes has for the necessity of detention without trial, he has no case at all.

The remainder of Wittes' discussion is much like his handling of detention. He offers a great deal of unsupported assertion on virtually every issue, but whenever he gets down to trying to actually make a case based on facts and logic, he fails completely.

I'll close with one other serious failing of this book. Wittes repeatedly castigates civil libertarians like me for our failure to accept, as he does, the supposed necessity to "work the dark side" when dealing with terrorism. We are cast as inflexible idealists, starry-eyed in our devotion to abstract principles, while Wittes and those like him have their feet firmly on the ground.

The reality is very different. Civil libertarians are not mindless devotees of abstraction. We base our positions firmly on history. We have learned that, throughout our country's history, perceived threats to our security have existed. We have seen these threats be wildly exaggerated, and we have seen how these supposed threats have repeatedly led to unjustified infringements of people's rights and liberties. We are trying to get the nation to learn from history, not, as Wittes alleges, to restore a past that never was.

At the end of the epilogue to this book, Wittes has the nerve to assert that civil libertarians supposedly are "uninterested in engaging [their opponents`] arguments." But in fact, it is Wittes who fails to engage civil libertarian arguments. Since 9/11, a number of civil libertarians have written or co-written books on some or all of the issues he discusses here. A partial list would include Nancy Chang, David Cole, Nat Hentoff, Aziz Huq, and Geoffrey Stone. Yet one looks in vain for any mention of these authors in Wittes' book, much less an attempt by Wittes at engaging their rigorous arguments. Having opened his book with an exercise in intellectual dishonesty, Wittes ends it with blatant hypocrisy.

The wise Justice Brandeis warned us long ago that "The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding." I do not doubt that, in his heart, Mr. Wittes means well. But he has far more zeal than he has understanding, and he is very dangerous to our liberties.

The law of terrorism is a difficult topic to broach, no matter what your political affiliation, and given the history of the last eight years since 9/11, it has become even more difficult. However, even as a non-lawyer, Wittes provides some interesting and compelling ideas. His evaluation of what has happened provides engaging discussion of not only how the Congress and President Bush have tried to grapple with the new and difficult issues presented by terror in a globalized world. Terrorists don't fall under the normal classifications of enemy soldiers, who are acting as instruments of the state, nor do they quite seem to qualify as criminals, and therefore for all the rights and procedures that come with the US criminal procedure regime.

SO what system of law do you apply? Obviously, detainees for terrorism cannot be kept incommunicado indefinitely, but neither can they be treated as common criminals. A hybrid system? And lead by whom: the executive or the Congress? And why hasn't the judiciary taken a more leading role in preserving the basic human rights of detainees.

No easy answers, but Wittes does a good job of examining what has happened to date, and what might be the course of action Congress (who he believes should take the lead) might take in the future to remedy some of the failings of the Bush Administration.

This is the best currently available treatment of the legal issues attendant to holding and interrogating prisoners in the war on terror. It stakes out a middle road between unchecked executive autonomy and unworkable judicial review. It benefits from detailed examination of actual evidence and the stories of many detainees, to make the point that our standard criminal justice system is not capable of dealing with terrorists presenting an imminent danger, captured on foreign soil, but that an unchecked executive branch system will likewise result in unacceptable error in detaining some individuals who do not present a threat. The solution is clear and workable standards imposed by the Legislative branch, as noted by another reviewer.

Benjamin Wittes, a former editorial writer for the Washington Post, has written the indispensable book on reforming US policy on detainees at Guantanamo. His exhaustive reading of everything that has been said, by the government, by the detainees themselves uncoerced in open hearings, so to give the best available portrait of the men at Guantanamo today - not those who were there in the first years, but those who are there now - is worth the price of the book. His policy prescriptions are well thought out, moderate, temperate, and are a special call to Congress to stop sniping from the sidelines and actually decide what to do. I do not think that anyone can have a serious opinion about what to do about detainee policy without reading this book.

First rate logic. The author has wrapped a very keen mind around a very difficult subject area and produced a highly readable book that is nothing less than a public service.

While still an avid Bush-hater, after reading this book, my views are tempered with a better understanding of the laws of war, the difficulty of meting out justice to terrorists and the reasons why one might be tempted to implement a national security court. The book is a non-partisan, thoughtful analysis of these topics and I highly recommend it.

It is a truth, universally acknowledged, that occasionally, a creature is born with a face that only a mother could love. If we extend this premise to the world of books, it is quite easy to understand and accept that occasionally, a book is published - a book which only a lawyer could adore. Written mostly in legalese, in prose stripped of elegance and charm and the innate splendor of the English language, reading this book was for me an experience akin to having a literary nightmare.

I know that several professional reviewers have written glowing reviews of this book; and the fact that the author is a lawyer has prompted me to write with utmost care and use a great deal of caution, and to think clearly before putting words on paper and, above all, to be fair.

Even though the publisher of this book states emphatically that "Benjamin Wittes offers the first nonpartisan critique of a crucial front in America's war on terror," and several reviewers have praised the author's "refreshingly nonpartisan perspective", it is possible, never the less, to see through the thicket of verbiage and to discern and understand where the author's sympathy lies, and where exactly he stands in the matter of the reprehensible torture and unspeakable horrors that the detainees have endured in Guantanamo Bay prisons: in Dick Chaney's yard, fist-bumping with the Vice President. I was quite shocked to read also that the author believes that many of the administration's nefarious deeds were far more defensible than its critics believed, and that he thinks the unconscionable deeds of the Bush administration, the deeds that shocked even our allies in the UK, France and Germany, actually warranted congressional support!

Mr. Wittes states that terrorism is fundamentally different from all other crimes, since it "involves horrors on an altogether different scale." And he believes that we owe dramatically less judicial protection to nonresident aliens than to U.S. citizens, even if the aliens are held incommunicado, in long-term military detention, without any charges against them. "No society can afford inviolable principles and inflexible rules concerning those steps on which its ultimate fate or interests depend," he states.

This is what he has written regarding his opinion on torture: "The stark reality is that absent an interrogation tactic that "shocks the conscience," Hoess--like his colleague Josef Mengele--might well have escaped justice, Nuremberg lost an important witness, and history denied his crucial accounts of the factory where more than a million people died. If the tactic--and the absence of any judicial review of its use--does not suddenly seem more defensible, you have proven yourself both a principled opponent of abusive interrogation and truly committed to judicial oversight of legally dicey wartime practices."

In his review of this book, Professor CURTIS A. BRADLEY, Professor of Law and Professor of Public Policy Studies at Duke University, has written(Foreign Affairs, July/Aug 2008):"Yet when it comes to the issue of torture, Wittes appears to waver in his approach. He makes clear that he supports the interrogation tactic that the British used in 1946 with the wife of Rudolf Hoess, the commandant of the Auschwitz concentration camp, in which they threatened to send her sons to a country where they would likely be killed."

I felt a deep sense of revulsion as I read this book, and then I was quite shocked. Read "Law and The Long War", if you wish, but only after you anaesthetize your conscience.