Clearly we are still grappling with the basic constitutional conundrums of the age of global jihad. In "Law and the Long War," Benjamin Wittes, a fellow at the Brookings Institution, sets out to determine just where our crucial post-9/11 policies fit in our constitutional framework and legal traditions. Along the way, he tries to define the proper role of our three branches of government amid the changing circumstances of a war unlike any other we have fought in our past.
An imperial presidency, an ineffective and fearful legislature, and an activist judiciary.
Indefinite and arbitrary-seeming detention has had the effect, Mr. Wittes notes, of provoking powerful fears of the "unchecked inherent powers of the president." Yet the critics who favored supplanting those powers "with the unchecked inherent powers of the judiciary" also have it wrong. Injecting the judicial branch into matters that it is ill-equipped to handle, he argues, can have one of two results: "paralyzing our response to terrorism" or "corrupting the judiciary" as it inevitably bends the law to accommodate the often brutal exigencies of counterterrorism.
Unchecked? No, just appropriate.
The conflict between law and necessity has arisen nowhere more sharply than in the debate over "enhanced interrogation techniques" – or, in noneuphemistic English, torture. Here Mr. Wittes faults the Bush administration more sharply. He acknowledges that very harsh techniques may be necessary – at least in emergency circumstances. But in the matter of high-stakes interrogations – for example, the CIA's interrogations of top al Qaeda planners like Khalid Sheikh Mohammed and Abu Zubaydah – the "administration has dug itself the biggest hole."
By its arrogance.
The administration resolved this problem by simply defining torture narrowly enough to permit waterboarding – a mere "dunk in the water" is what Vice President Cheney called it. But stretching language in this way, writes Mr. Wittes, "is a kind of double-talk that denudes law of meaning and renders the presidency morally laughable."
A mere dunk, this from a man who avoided the draft.
On the whole, Mr. Wittes would like to see Congress playing a greater role in the war on terror. Like Jack Goldsmith, a former Justice Department official, he is worried about the legitimacy of policies that are asserted as if by presidential fiat. Conservatives, he says, should have "anticipated to some degree that the courts would respond to muscular presidential actions with assertions of power of their own."
Congress be effective? In renaming french fries freedom fries. Conservatives, or, better put, reactionaries, want to rule by fiat.
As matters now stand, we are needlessly fighting a war on two fronts: against our enemies and against ourselves.