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Law and the Long War: The Future of Justice in the Age of Terror Paperback – May 26, 2009
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From Publishers Weekly
Brookings Institution fellow Wittes evaluates the war on terror from a refreshingly nonpartisan perspective that assesses the chasm between the gravity of American security needs and the inadequacy of its laws. Both a defense and critique of the Bush administration, the book argues in favor of many of the measures taken by the executive branch while condemning its failure to secure congressional cooperation and the necessary legal architecture to back policies that were bound to be unpopular. Wittes reserves his real ire for a legislature that has ignored its mandated responsibility of creating coherent, legal structure for this war and a Supreme Court that has attempted to extend its jurisdiction over detainees and is increasingly interfering in foreign policy. Wittes's familiarity with the law and excellent analysis of contemporary Supreme Court cases give this book insight that transcends party politics and make for a fascinating read; however, his heavy reliance on legalese may alienate casual readers. His prose, when not bogged down by jargon, is appealing (The Constitution is old—old and short) and services a robust call to action. (June)
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved. --This text refers to an out of print or unavailable edition of this title.
Legal affairs columnist Wittes here examines various legal aspects of the Bush administration’s war on terror, arguing that the structures that are currently in place are inadequate for protracted counterterrorism efforts. The key problem, he finds, is that the administration has asked Congress to create new laws only when the administration felt it had no alternative (and Congress has been content to stand aside). As a result, there exists no “mature legal architecture” (i.e., substantive legislation of adequate breadth and flexibility) for dealing with the civil liberties and human rights concerns that arise in response to aggressive counterterrorism policies. The legal foundation for surveillance, rendition, torture, and Guantánamo is thus cobbled together out of outdated and ill-fitting materials, and its flaws are glaring. In spite of such condemnation, Wittes remains highly sympathetic to the administration’s aims, giving them the benefit of the doubt on matters that other critics of the administration have not. Ultimately, his hope is that innovative legal structures will be forthcoming and seen as legitimate in a way that current efforts are not. --Brendan Driscoll --This text refers to an out of print or unavailable edition of this title.
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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.
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.