Law and the Long War… intro

My friend and colleague Thomas Nephew leads off the substantive discussion of Benjamin Wittes’ “Law and the Long War” with this dead-on discussion of the opening introductory section. [Thomas’s introductory post is here; mine can be found here.]
Mr. Wittes’s bio makes no indication that he has a law degree or legal training. In that sense, then, he may not quite understand just what he did wrong in the “opening statement” part of his “introduction,” specifically why it’s so disturbing to those of us whose lives are devoted to “the law as it is” on the ground in the courts of this nation, rather than as we might fantasize it from our think-tanks. Both Thomas and his first commentator grasped it immediately. I’ll tell you what it is in a moment.
First, though, it’s important to note that Mr. Wittes’s book proposes to be a lengthy polemic in support of the not particularly controversial proposition that Congress has largely defaulted in its traditional structural role of developing legal frameworks associated with the war on terror, followed by the somewhat more controversial suggestion that Congress impose such legal frameworks (including, of course, “preventive detention.”) Congress’s default is not that surprising, as the executive, which must fight the wars, is often out front in developing such frameworks, and Congress often trails behind in “making the rules”. Further, the Bush Administration’s unusual degree of contempt for Constitutional government in general, as well as its coordinate branches, certainly put this particular “problem” front and center.
But here’s the thing. The opening sequence of Law and the Long War gives us the hypothetical example of Special Forces soldiers who have captured a terrorist kingpin in Afghanistan, but then let him slip away. They then pick up his wife and three sons, and trick her into giving up his location through the ruse of threatening to send her sons to an Arab country’s secret police for torture and execution. Before quite letting this scenario sink in, Mr. Wittes tells us that it’s a real story, only the year is 1946, the place is Germany, the soldiers are British and the terrorist kingpin is, in fact, Auschwitz death camp commandant Rudolf Hoess.
What’s wrong with this picture? I’ll just give a top five. (1) Any trial lawyer knows that the opening statement represents 80-90% of the best opportunity to sway the jury; leading with a bait and switch of this kind immediately jeopardizes the lawyer’s most important asset: his own credibility. (2) The currently operative Geneva Conventions date from 1949; Wittes offers no discussion of this legal development onthis scenario. (3) Wittes presents the scenario in the context of Hoess’s habeas corpus petition, claiming his apprehension was unlawful, when, of course, even in 2009, in the United States, a prisoner apprehended illegally in another jurisdiction can nonetheless stand trial here (see e.g. U.S. v. Alvarez-Machain), (4) as Thomas points out, the premise of the Special Forces hypothetical is the prospective danger of the dangerous terrorist on the loose; Hoess, while one of the worst mass murders in history, nonetheless no longer presented “an imminent threat” in 1946, thereby resulting in a mixed metaphor and missed point, and (5) as Thomas’s first commenter notes, the hijacking of reasoned thoughts from the hyper-emotional reference to Nazis, and indeed, the following sequence where Wittes discusses two particular Guantanamo detainees (one of whom, of course, is designed to fuel our worst fears) result in the effect of hijacking reasoned thought in favor of emotions, which is not the appropriate manner in which this kind of policy discussion should be conducted, though sadly, has been thus far.
The thing is, the substance of Mr. Wittes’s book, critical for example of the Bush Administration’s “go-it-alone” approach to everything led by Cheney and Addington which led directly to the Supreme Court’s ultimate intervention(s) into the national security area vacuum left by Congress, or noting historical antecedents in the Clinton Administration and earlier and other interesting observations, seems on far more solid ground analytically than with the rhetorical sleight of hand presented in the opening statement.
Which kind of takes me to my most basic criticism: maybe we really didn’t need a “new framework” at all; maybe terrorism really isn’t more dangerous than the Third Reich, the Soviet Union, the Klingons and Romulans combined… maybe the ad hocapproach adopted by the Clinton Administration in response to al Qaeda was actually the way to go after all, and “a war” on private, albeit well-organized group of international criminals was the mistake. Maybe the fact that we have given OBL and A.Q. their street creds by insisting that this is “a war” in the first place has been what needs changing– and what we should reconsider is not the law or the legal paradigm, but the metaphor.
Maybe the President and executive and the military and the intelligence community and law enforcement already have all the power and authority they need to combat al Qaeda and the terrorist threat. Indeed, maybe it is “the long war” part of “Law and the Long War” that we should take a good hard look at, rather than “the law.” I commend Mr. Wittes on taking on this discussion, from at least some angle. But I am constrained to note the fundamental problem with his opening rhetorical device: another “bait and switch” like the Hoess opening, and Mr. Wittes the polemicist will have no credibiility left as far as I’m concerned, and this critical discussion will have to take place in another context. Which would be too bad.