Legislating the War on Terror

Legislating the War on Terror: An Agenda for Reform

Benjamin Wittes Editor
Copyright Date: 2009
Published by: Brookings Institution Press, ,
Pages: 420
https://www.jstor.org/stable/10.7864/j.ctt6wpgqj
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  • Book Info
    Legislating the War on Terror
    Book Description:

    The events of September 11 and subsequent American actions irrevocably changed the political, military, and legal landscapes of U.S. national security. Predictably, many of the changes were controversial, and abuses were revealed. The United States needs a legal framework that reflects these new realities.Legislating the War on Terrorpresents an agenda for reforming the statutory law governing this new battle, balancing the need for security, the rule of law, and the constitutional rights that protect American freedom.

    The authors span a considerable swath of the political spectrum, but they all believe that Congress has a significant role to play in shaping the contours of America's confrontation with terrorism. Their essays are organized around the major tools that the United States has deployed against al Qaeda as well as the legal problems that have arisen as a result.

    • Mark Gitenstein compares U.S. and foreign legal standards for detention, interrogation, and surveillance. • Matthew Waxman studies possible strategic purposes for detaining people without charging them, while Jack Goldsmith imagines a system of judicially reviewed law-of-war detention.

    • Robert Chesney suggests ways to refine U.S. criminal law into a more powerful instrument against terrorism. • Robert Litt and Wells C. Bennett suggest the creation of a specialized bar of defense lawyers for trying accused terrorists in criminal courts.

    • David Martin explores the relationship between immigration law and counterterrorism.

    • David Kris lays out his proposals for modernizing the Foreign Intelligence Surveillance Act.

    • Justin Florence and Matthew Gerke outline possible reforms of civil justice procedures in national security litigation.

    • Benjamin Wittes and Stuart Taylor Jr. investigate ways to improve interrogation laws while clarifying the definition and limits of torture.

    • Kenneth Anderson argues for the protection of targeted killing as a counterterrorism tool.

    How should Congress authorize, regulate, and limit counterterrorism tools, and under what circumstances should it permit and encourage their use? The authors of this book share a commitment to pushing a reluctant Congress to play a more active role than it has to date in writing the rules of the road.

    eISBN: 978-0-8157-0417-1
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-x)
  4. Introduction
    (pp. 1-6)
    BENJAMIN WITTES

    The war on terror has entered a new phase, the phase of institutionalization. What began as a series of responses to a crisis and then triggered backlashes from the courts, the political system, and the international community now gropes toward the creation of more durable structures to both legitimize and control strong action against global terrorism. The current phase is, at one level, a period of instability, as the old certitudes that counterterrorism is warfare or that it is law enforcement dissolve. It is also a phase of considerable opportunity, for institutionalization of the confrontation with international terrorist organizations gives...

  5. 1 Nine Democracies and the Problems of Detention, Surveillance, and Interrogation
    (pp. 7-42)
    MARK H. GITENSTEIN

    The United States faces vexing questions concerning how to safeguard civil liberties and human rights in the face of threats to its national security, and its experience has resulted in a unique balancing of those concerns. But the threats against the United States are not unique; other nations have faced—and still face—terrorist threats. Those nations have confronted the same type of threats in light of their own civil libertarian and democratic traditions. As the United States considers the long-term legal architecture for its confrontation with terrorism, it is instructive for the country to look beyond its borders to...

  6. 2 Administrative Detention: Integrating Strategy and Institutional Design
    (pp. 43-74)
    MATTHEW C. WAXMAN

    As the Obama administration plans the closure of Guantánamo and develops the architecture of a new terrorist detention policy going forward, it will necessarily consider whether Congress should enact administrative detention legislation.¹ To its advocates, administrative detention—detention by order of the executive branch without criminal prosecution in the courts—is an important counterterrorism tool.² New legislation, they argue, would more effectively and legitimately regulate detention of suspected terrorists than does the law of war as an alternative to criminal prosecution.³ But critics warn that administrative detention is a dangerous tool, not just because it threatens liberty and entails expanding...

  7. 3 Long-Term Terrorist Detention and a U.S. National Security Court
    (pp. 75-97)
    JACK GOLDSMITH

    For years there has been a debate about whether to create a national security court to supervise the noncriminal military detention of dangerous terrorists. The debate has many dimensions, and it often is confusing. Some opponents of a national security court are really opposed to the noncriminal military detention system that such a court would supervise; they insist that terrorists be tried in criminal court or released. Other opponents of a national security court accept the need for noncriminal military detention but do not favor institutionalizing a new, “secret” court to oversee detentions. Proponents of a national security court come...

  8. 4 Optimizing Criminal Prosecution as a Counterterrorism Tool
    (pp. 98-141)
    ROBERT M. CHESNEY

    Before the September 11 attacks, the United States relied primarily on federal criminal prosecution when it sought to incarcerate suspected terrorists for an extended duration.¹ In the aftermath of September 11, however, the United States buttressed its existing options for long-term detention of terrorism suspects by asserting that some such persons are combatants subject to military detention for the duration of hostilities pursuant to the law of armed conflict, and also by establishing military commissions to oversee war crimes trials for a subset of those individuals.² In so doing, the government sparked intense controversy. Amid that controversy, however, an important...

  9. 5 Better Rules for Terrorism Trials
    (pp. 142-179)
    ROBERT S. LITT and WELLS C. BENNETT

    Nearly eight years after the attacks of September 11, 2001, the government’s legal, practical, and moral authority to detain suspected terrorists without trial remains a subject of fierce debate. Nonetheless, there is general agreement among those who support preventive detention as well as those who oppose it that the government can and should prosecute some individuals for terrorism-related criminal activity. Potential defendants could theoretically include the planners of or participants in actual terrorist attacks; U.S. citizens or legal residents who knowingly provide financial or other support to organizations such as Hamas, al Qaeda, or the Tamil Tigers; even homegrown sympathizers...

  10. 6 Refining Immigration Law’s Role in Counterterrorism
    (pp. 180-216)
    DAVID A. MARTIN

    The federal government relied heavily on immigration laws in its immediate response to the September 11 terrorist attacks, which were carried out by aliens who were present in the United States on short-term visas. Hundreds of foreigners, swiftly deemed of “special interest,” were taken into custody on immigration charges, often of the most routine variety. Their removal proceedings were closed to the public under a blanket order issued by the attorney general. Many noncitizens were subjected to exceedingly strict application of the inadmissibility and deportability grounds of the immigration statute, as well as a hardening of the criteria for release...

  11. 7 Modernizing the Foreign Intelligence Surveillance Act: Progress to Date and Work Still to Come
    (pp. 217-251)
    DAVID S. KRIS

    In December 2005, theNew York Timesreported¹ and President George W. Bush confirmed² that the National Security Agency (NSA) had been conducting electronic surveillance of international communications to or from the United States without obeying the Foreign Intelligence Surveillance Act of 1978 (FISA).³ Disclosure of the NSA surveillance program, sometimes referred to as the Terrorist Surveillance Program (TSP) or the President’s Program, ignited a wildfire of political and legal controversy, with most of the debate centered on the president’s constitutional power, as chief executive and commander in chief, to disregard FISA and conduct electronic surveillance without following the law’s...

  12. 8 National Security Issues in Civil Litigation: A Blueprint for Reform
    (pp. 252-288)
    JUSTIN FLORENCE and MATTHEW GERKE

    The U.S. civil litigation system is designed to resolve disputes between parties fairly and to compensate people who have been wronged. When officials or agents of the federal government are sued, open courts hold the government publicly accountable to the rule of law, protecting the basis of the constitutional republic. Opinions are generally published; proceedings are open to the press and the public at large. The assumption underlying the adversarial system is that a just outcome is achieved when each party in the dispute has an equal opportunity to make its best arguments on the legal and factual issues at...

  13. 9 Looking Forward, Not Backward: Refining U.S. Interrogation Law
    (pp. 289-345)
    STUART TAYLOR JR. and BENJAMIN WITTES

    The worldwide scandal arising from the abuse of prisoners in Abu Ghraib, Guantánamo, Afghanistan, and secret CIA prisons during the Bush administration has been a stain on the honor of the United States and a catastrophe for its national image. Understandably eager to save innocent lives by breaking the resistance of a few al Qaeda leaders, Bush and his aides went way overboard. Instead of crafting special rules to allow for exceptionally tough interrogations of those few leaders and maintaining strict limits to ensure that those interrogations stopped short of torture, the Bush team chose to gut the laws, rules,...

  14. 10 Targeted Killing in U.S. Counterterrorism Strategy and Law
    (pp. 346-400)
    KENNETH ANDERSON

    It is a slight exaggeration to say that Barack Obama is the first president in U.S. history to have campaigned in part on a platform of targeted killing—but not much of one. During the campaign, he openly sought to one-up the Republican nominee, Senator John McCain, in his enthusiasm for the use of targeted strikes in Pakistan against al Qaeda figures. “You know,” he said in his speech at the Democratic National Convention, “John McCain likes to say that he’ll follow [Osama] Bin Laden to the Gates of Hell, but he won’t even go to the cave where he...

  15. Contributors
    (pp. 401-404)
  16. Index
    (pp. 405-420)
  17. Back Matter
    (pp. 421-423)