The Talking Dog

September 23, 2009, 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.


"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."

I hear you, maybe we shouldn't wage this as a war, but maybe that isn't in the cards any more.

First, there's the AUMF, which seems formally adequate legal basis for saying "we're at war." (I think SCOTUS has explicitly affirmed this, hasn't it?). But maybe that's not what you're driving at; maybe Bush et al would have done all the same things even without the AUMF.

Second, we haven't captured OBL or Zawahiri yet, so politically it seems like unfinished business; I'm not sure the country's ready for appearing to be calling off that effort, and I'm not sure I am either.

I'll just pose a question here. Might it make sense to go with the "war" status -- but simultaneously acknowledge the detainees to be POWs, with all the Geneva Convention rights of POWs? No mistreatment, yes Red Cross visits, etc.

Wouldn't that clean up many concerns -- even as it left open the possibility of open-ended, essentially preventive detention for some-to-many of the remaining detainees? (A secondary question: is a formal state of war necessary for a country to have POWs?)

Just asking. Great post!

Posted by Thomas Nephew at September 24, 2009 1:07 AM

In subsequent chapters, I think it's Wittes himself who makes the point that a number of things can go on at the same time-- military action, intelligence operations, law enforcement, both domestically and in cooperation with other nations-- all, some, or none of which actually require the formal conducting of "war".

Our military is deployed in over 100 countries (btw, I AM suggesting that this would be an excellent time to start asking about that,to wit, is their presence all over the world buying us security... or just more enemies which will in turn only justify yet more deployments?) but I digress...

I am suggesting that after over 8 years now, it is safe to say that "the war" metaphor isn't nearly as useful as first thought; unless one buys conspiracy theories that Bush/Cheney actually wanted OBL/al Zawahiri/et als. as useful political bogeymen, Occam's Razor says that the failure to catch them is more the result of political, military and logistical incompetence, and maybe (after the quick rout of the Taliban through classical military methods, which I should note should have been part of the mix) we should decide we no longer need a military presence in Afghanistan, or at least, the scale of the one we have.

Perhaps if we had stopped permitting Dubya the fantasy of being "the war president" and just got down to the slow, boring business of regular intelligence and law enforcement operations with LIMITED military action where necessary, appropriate, we might have actually taken out AQ, AND not done so in a manner likely to generate more enemies rather than fewer.

I'll just pose a question here. Might it make sense to go with the "war" status -- but simultaneously acknowledge the detainees to be POWs, with all the Geneva Convention rights of POWs? No mistreatment, yes Red Cross visits, etc.

Well, traditionally (at least for the 55, 60 years before 9-11),we would have turned POWs captured in Afghanistan over to the Afghan gov't,who we've implicitly decided aren't up to it by taking the function from them; of course, this is because this is "OUR WAR"... but then, the purpose of that was intended NOT to follow international norms. BUT, now in 2009, OUR SUPREME COURT HAS SAID THIS IS ALREADY THE LAW. And here we go again with Wittes's premise of a need for "new law" when the law as it already exists has a right answer, and the problem was that the Bush Administration (and quite frankly, the Obama Administration) decided that the law as it exists is just too darned inconvenient. And that's the question again... is the problem "the law"... or (specifically, our conducting of) "the war"?

Posted by the talking dog at September 24, 2009 7:57 AM

I think the "war president" part is really important. It explains Bush's behavior but also Obama's. Dems have always struggled with being seen as soft on war, and Obama especially has problems with looking like a strong commander-in-chief.

Posted by Michael L at September 24, 2009 9:23 AM

"our Supreme Court has said"
I need you to clarify that for me a little. Which ruling do you mean, and which right answer does it confirm?

"would have turned POWs captured in Afgh. over to the Afghan govt"
I'm a bit surprised at that. Is that a Geneva Convention? If so, which one; if not, what law or treaty compels that? Were all NVN and Viet Cong prisoners held by SVN? (Not that we were models of good behavior back then either.)

I'm asking not to take issue with you at all, of course, but to have the answer myself when someone takes issue with me.

Posted by Thomas Nephew at September 25, 2009 12:21 PM

Hmmm.... the Hamdan case, as explained here by Marty Lederman, ex of "Balkinization" and Georgetown Law and now an official in the Obama/Holder Justice Dept., held that the 3d Geneva Convention of 1949 applies to all--al Qaeda, Taliban and everyone-- captured in the Afghan conflict. As to other "right answers," I will just note that in later chapters, Mr. Wittes himself astutely observes various levels of the Supreme Court decisions, which, in some cases are of little practical effect (GTMO still open, prisoner held, etc.) but at other levels, potentially of "tectonic" significance... Re: "which right answers did they decide?" is a fair question, because as noted both by you and by Mr. Wittes, the answer is "fewer than you might think!"

Re: holding prisoners, we certainly can hold our own prisoners as a matter of law, and did so in WWII (and I suspect beforehand) and the first Iraq War (albeit, not for all that long for the most part!). In Viet Nam, I have been told, for example in my interview with former JAG Officer Jeffrey Addicott, that all (or just about all) NVA and VC prisoners were indeed turned over to South Viet Nam during the conflict there.

The problem of not doing so in a similar manner Afghanistan is twofold.

For one, it demonstrates that we have no confidence in the Karzai government to perform a basic function, like holding prisoners, at a time when the main problem in that conflict is the total lack of legitimacy or local support among the local populace that is turning in droves to the Taliban, not because they like them, but because the Taliban are at least competent enough to provide basic security and services.

The second problem with not doing so is legal, and relates to the "tectonic" part of Mr. Wittes's analysis. One judge has already extended American court jurisdiction over prisoners at Bagram (e.g.
Do we want federal judges, in any way really, directing operations in a war zone? Sadly, the Bush Administration's abuses of law (and the Obama Administration's refusal to preemptively back off them) pretty much forced the hand of the courts to intervene... the injustices and abuses are just that severe. Still, the courts are not well-suited to this task-- as Wittes notes, and as I will readily note.

OTOH, all of this is entirely, 100% unnecessary: if we had handed prisoners from the Afghan conflict to detention facilities under the control of the Afghans (ditto, btw, in the Iraq conflict), we wouldn't need to have this discussion... and indeed, we might well be on our way to "winning," or more importantly, leaving>

I'll leave you with a quote by T.E. Lawrence ["Lawrence of Arabia"] quote, which the West never listens to, but is as sound advice now as it was nearly a century ago:

Do not try to do too much with your own hands. Better the Arabs [or Afghans, or Iraqis, or...] do it tolerably than that you do it perfectly. It is their war, and you are to help them, not to win it for them. Actually, also, under the very odd conditions of Arabia [or Iraq, or Afghanistan...], your practical work will not be as good as, perhaps, you think it is.

Posted by the talking dog at September 25, 2009 1:24 PM