A long look at lawfare in the Long War

Gabriel Schoenfeld looks at Benjamen Witts's Law and the Long War in a Wall Street Journal book review.

By granting the right of habeas corpus to prisoners at Guantanamo Bay, the Supreme Court recently knocked down the handiwork of both the executive branch and Congress. Meanwhile, the House passed a new surveillance bill last week, after years of bitter debate and temporary fixes. And yet who knows what the Supreme Court will say after the bill becomes law?

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.

When it comes to enemy combatants, Mr. Wittes argues that the Bush administration has done a respectable job of sorting out the prisoners in its custody, sending "the bit players" home while taking "big steps to concentrate the hard core at Guantanamo." What the administration has failed to do, he says, is to arrive at a set of prisoner-review procedures – open and creditable – that the American people will accept as a fair way of justifying long-term incarceration in a war that may not have a definable end-point.

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.

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."

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What is frustrating about the argument about making terrorist uncomfortable in order to get vital information is that hardly any of the critics are arguing in good faith. They may think they are, but almost everyone of them would have approved the discomfort fo teh terrorist in order to save lives and if they would not they would be putting the comfort of the terrorist above the lives of innocent Americans.

One of the biggest problems in dealing with captured terrorist is the tendency of many critics to treat them as common criminals rather than war criminals. There is a big difference and the Supreme court has deeply muddled that difference. It did it first by saying they were entitled to Geneva Convention protections when they clearly are not under the terms of the Conventions for several reasons.

Start with the fact that al Qaeda is not a party to the Conventions and is therefore not entitled to its benefits. But even if it were it forfeits those benefits by breaching the terms which require lawful combatants to wear identifying uniforms and not deliberately attack non combatants or use them as human shields. If someone does that it makes them unlawful combatants and not entitled to its protections.

But there is another fundamental problem with the Court's interpretation of a right to habeas corpus rights for these unlawful combatants. Under the laws of war they can be held until the end of hostilities. While some argue that is an indefinite detention, the enemy could end it tomorrow by making peace and giving haveas rights to the detainees gives the enemy less incentive for ending the war, thus making it more likely that it will be extended.