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

June 23, 2008


The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again. At one point the previous year, they had actually arrested him but, not realizing who he was, had let him go. Unable to track him down now, they managed instead to locate and detain his wife, who was living in a remote mountainous region. For several days, they interrogated her at an air base, but she repeatedly insisted that he was dead. Finally, they tried a new tactic. They noisily put a plane on a nearby runway, its engines running. As the commanding officer later recalled: “We then informed [her] that the plane was there to take her three sons to [a repressive country nearby] unless she told us where her husband was and his aliases. If she did not do this then she would have two minutes to say goodbye to her sons. . . . We left her for ten minutes or so with paper and pencil to write down the information we required.” Having threatened, in essence, to kill her sons—for nobody doubted what the secret police would do to them when they arrived at their destination—the interrogators got the information they wanted. And they got their man, disguised as a farm laborer, that evening.

What followed was a protracted habeas corpus action. Lawyers representing the high-value detainee decried the coercive interrogation of his wife, the threat to his children, and the savage beating he incurred on his arrest. (The medical officer accompanying the troops that detained him had shouted to the commanding officer to call his men off “unless you want to take back a corpse.”) Human rights groups uniformly condemned the interrogation tactic as torture; major newspapers weighed in on their side. The military, meanwhile, insisted that the courts had no jurisdiction over any such overseas military action, which had in any event been lawful and had yielded essential intelligence and the capture of a very big fish. As of this writing, the lower courts have deemed themselves powerless to hear the case; the Supreme Court is considering the matter.

Should the courts hear the case, notwithstanding an act of Congress that explicitly precludes review? If so, how should they rule? Is such a tactic— garnering information from a mother by threatening to have her sons beheaded by a totalitarian regime—ever legitimate? And in a society committed both to law and to victory in a global struggle against terrorism, who should judge?

In the years since September 11, 2001, a gulf has opened up between the views of elites, mostly but far from exclusively liberals, and majority opinion on such questions of presidential power as detention, surveillance, interrogation, and trial of suspected terrorists. This gulf involves both the scope of these authorities—call them the powers of presidential preemption—and, perhaps more importantly, their source. This gulf was only accentuated by the Supreme Court’s opinion in Hamdan v. Rumsfeld, the resulting Military Commissions Act, President Bush’s disclosure of the CIA’s secret prisons for high-value detainees in September 2006, the National Security Agency’s warrantless wiretapping program and the resulting legislative battles over electronic surveillance, and continuing Supreme Court litigation over detentions at Guantánamo Bay, Cuba. Public opinion has tended to regard these issues pragmatically—tolerating tough measures and contemplating with relative equanimity the deprivation of certain rights to terrorist suspects that are nonnegotiable in a civilian context. For prevailing opinion in the academy, the press, and the human rights world, however, the standards of international humanitarian law represent moral absolutes, the administration’s fl exible approach to them an affront to the rule of law, and the courts the principal line of defense against excessive executive power and its abuse. In functioning democracies, the argument goes, victims of uncivilized government conduct, no matter how odious these victims may be, must have access to the courts for redress—the threat of tyrannical government being ultimately greater than whatever threat even the worst criminals or terrorists may pose. In the end, the rules that limit governmental power have to be tough and the courts have to be available to make them meaningful.

But let me now confess that I have adjusted somewhat the facts of my opening anecdote, which is indeed the true story of the capture of an uncommonly evil and dangerous man: The plane was really a train; the country was Germany; the soldiers were British, not American; the year was 1946. And the high-value detainee was no Al Qaeda figure, not even a figure who posed a great prospective danger, but one of the great mass murderers of all time: Rudolf Hoess, the commandant of Auschwitz. The resulting habeas litigation, de rigueur today, was beyond anyone’s wildest imagination then. 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. My purpose in this book is to shake somewhat the certainty of your nonconsequentialism and, in particular, your faith in judges as the essential check on such executive behavior. I share neither your certainty nor your faith and can only thank God that neither did the British soldiers who captured Rudolf Hoess. For those wholly comfortable with the operation morally or legally—those who would breezily defend it as a matter of unreviewable military discretion—my purpose is also to shake your certainty, albeit in a somewhat different manner. I wish to convince you that strong presidential action in the current conflict cannot rely exclusively— or even chiefly—on the president’s own constitutional powers. In the fi ght against global terrorism, the powers of presidential preemption will not remain vital without support from outside the executive branch.

This book is about that gulf between the centers of gravity of elite and mass opinion, the space in which the realities of America’s genuine security needs meet the inadequacy of its laws and put stress upon the liberalism of its values. It is for those not content to give the president a free hand in a long war but also suspicious that courts can and should supervise detentions and interrogations and doubtful that such operations are, in any event, easily subjected to absolute moral rules. This is uncomfortable territory, for the slope is indeed as slippery as slopes get—and slippery, I should say, on a hill with two distinct bottoms. At one lies a government capable of torture with impunity, the very essence of tyranny. At the other lies a government incapacitated from expeditiously taking those steps necessary to protect the public from catastrophic attack. Those of us who occupy this space stand vulnerable at once to the charge of having forsaken American values and to the charge of having done so with insufficient vigor to enable the executive branch to win.

In reality, however, this is the intellectual and practical territory in which wars have been won with liberty preserved. If the United States is to win the current war on terror in the context of stable, democratic, constitutional government, I venture the guess that it is within this space—not with either a dogmatic commitment to executive power or an undying faith in the wisdom of judges—that it will do so.

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Excerpted from Law and the Long War: The Future of Justice in the Age of Terror by Benjamin Wittes. Reprinted by arrangement with The Penguin Press, a member of Penguin Group (USA), Inc. Copyright (c) June, 2008.