It's far too late for the current Republican administration or the current Democrat-controlled Congress to redeem themselves in the legal war on terrorism. Too many men have been tortured; too many Americans have been spied upon without warrant; too many constitutional principles have been scuttled; too many precedents breached; too many smart ideas and reasonable compromises left along the legislative trial. There has been entirely too much of John Yoo and David Addington and not nearly enough of Jack Goldsmith and James Comey.
Hundreds of men - some terrorists, some not - still languish un-prosecuted in detention at Guantanamo Bay because the Administration stubbornly has refused to compromise over tribunal procedures. Warrantless domestic surveillance remains mired in controversy and legal illegitimacy. The Justices are about to announce their third detainee ruling on terror law since the Twin Towers fell and few believe the Court has the motivation or the votes to issue, finally, any sort of declarative judgment.
But the next president of the United States, whoever he or she may be, and the next Congress, however it is constituted, will have an opportunity to steer a more sensible and productive path. Perhaps the only "good" news about the current leadership's shameful failure to formulate a terror-law plan - one that is constitutionally proper and publicly acceptable - is that the vacuum has drawn in several good ideas from outside the corridors of power.
Take journalist and newly-minted academician Ben Wittes. He's just written the book I wanted to write. But instead of being bitter, I'm relieved. Although I don't agree with many of his conclusions, Wittes' "Law and the Long War" is by open lengths the most useful post-9/11 terror law book yet written. It posits, earnestly, that America will be far better off, and more capable of tackling the terrorists, only when the Congress takes a proactive role in creating terror law rules, when the President of the United States is willing to accept the legislative branch as a partner in the policy-making process, and when the courts have a more pre-defined role in the mix.
Continuing the current unworkable (and un-working) paradigm, Wittes argues, where the executive branch floods into the open space left by legislative inaction only to be checked by the judicial branch, will only result in more uncertainty as the war against terrorism approaches its first decade. It's easy, of course, to say that the politicians have to do better. But Wittes offers some specific ideas that should find their way into the next President's campaign platform if not his or her Inaugural Address.
For example, Wittes wants to see the legislative creation of a separate "administrative detention" system which would alleviate the need for the messy detainee situation still unfolding down in Cuba. The system - a cross between our civilian criminal courts and the military tribunals which have yet to fire fully since 9/11 - would function in Wittes' view as a sort of "National Security Court" (we already have a special Foreign Intelligence Surveillance Court, remember) or something akin to an administrative law body. He also wants more stringent rules against excessive interrogations with explicit exceptions in extreme cases (the ticking time bomb in Times Square, for example).
And, perhaps most controversially, in the arena of domestic surveillance, Wittes wants Congress to "strip away the roadblocks to constructive, real-time government access to routine transactional data - credit card and other financial transactions and telecommunications addressing information in particular" while creating a "what-happens-in-counterterrorism-stays-in-counterterrorism" limit to executive branch power over our private transactions. Mountains may move before this occurs. But Wittes is right that we ought to try.
Now let's turn to David Cole, the Georgetown University Law professor who has done more to help educate us all about the legal war on terror than any man alive. Cole has taught on the subject, written about it, and gotten his hands dirty representing individuals and causes conflicting with the government's interest. In an important review titled "The Brits Do it Better" in the June 12th New York Review of Books, Cole concludes that the "English have learned from their mistakes in fighting terrorism. The question for the United States can learn from ours." Unlike our British cousins, Cole suggests, America could use a lesson in subtlety in the war on terror.
That Wittes and Cole have reached the same fertile ground at the same time despite traveling different paths is no coincidence. Most anyone who has closely followed the arch of the government's legal response to the terror attacks on America concedes (with varying degrees of defensiveness, anger or disgust) that the story is one of lost opportunities, misguided priorities, political cowardice, and bad intentions. Indeed, the report issued last week by the Justice Department's Office of Inspector General confirmed for history the dysfunction within the various departments of the executive branch when it comes to the creation of terror law policy.
Come Jan. 20, 2009, all of this nonsense, this catastrophically damaging nonsense, must end. The new President must cooperate fully and fairly with the new Congress. The new Congress must act courageously, decisively, proactively and comprehensively. And the federal judiciary must intercede sparingly yet with far more clarity than we've seen from the Supreme Court since 2001. After seven years of chaos and embarrassment - and just a single detainee tried down at Guantanamo Bay - that shouldn't be too much to ask.