My AEI talk on institutionalizing the war on terror through legislation

Okay, I am going to toot my own horn ... Last week saw an exciting conference at the American Enterprise Institute, The Outsourcing of American Law. The web page has all the stuff on the conference, including transcripts and video, and the whole program. It featured stellar panels - Jack Goldsmith, John Yoo, Julian Ku, William Dodge, Morton Halperin, Beth Stephens, a long list of great folks, and a keynote address by Justice Scalia (annoyingly heckled by what I'm told were a group of Larouchians).

My particular plea was for the Bush administration to get behind efforts to institutionalize the war on terror through legislation - otherwise it will blow away with the wind the moment that a new administration, Republican or Democrat, enters the White House.

This is the topic of a day long conference that Tod Lindberg and I are putting on as a combination of the Hoover Institution and my law school, Washington College of Law at American University - it will be Monday, April 10, and everyone is encouraged to attend (more on logistics later).

Meanwhile, you can see the video of my talk and everyone else's at the conference by clicking on the video button here. And below is a transcript, including all my clumsy sentence constructions and failure to include verbs:

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Kenneth Anderson: I would very much like to thank John for this privilege of being on this panel and also being in front of this very distinguished audience. So, I am absolutely delighted to be here. I will be addressing less the questions of international law than, in fact, making a sort of broad ranging plea about where I think that the institutionalization of the war on terror needs to go. I will be ranging broadly and not hitting anything really in any great detail.

But my thought is really very straight forward. It is that I don’t think that there will be an institutional war on terror, I don’t think that there will be much of a policy on a war on terror which outlasts this administration, which will be in place no matter whether there’s a Democrat in the White House or a Republican in the White House past this administration, unless this administration is willing to take on the burden of institutionalizing the war on terror and by going to Congress to do it.

I say that as somebody who is a very strong supporter of this administration and what it’s done to this point. But I don’t think there will be a war on terror in a meaningful policy sense unless the Administration is willing to take this issue to Congress and to find ways to enact some sort of comprehensive legislation that deals with the aspects of a war on terror.

Now, if we look briefly at the leading components on the war on terror, at least those that raise significant legal questions and the ones that have sort of bedeviled us, I think we can see where it is that a comprehensive legislative solution is most needed.

There are many, many open questions in the international law of armed conflict and its application to the war on terror. Without any question, there are many open questions about that. And yet, for all that, I don’t think that our fundamental issues about the legal regulation on the war on terror fundamentally arise from the law of armed conflict. I think it actually comes from other places.

Likewise, if we turn over to the pure questions of criminal law enforcement where police go and act in their purely police capacities and defendants are put into a criminal law justice system, yes, there are open questions about secrecy, about many different aspects of when is somebody appropriately a defendant, when do they enter the criminal justice system. But by and large, once they’re in, to a fair extent those questions are relatively settled within our settled criminal justice system.

Where the issue of regulation arises principally, I think, is in a certain area between those two. By between those two I mean what, for lack of a better term, and I really don’t think it’s a particularly good term, what we might call an intelligence war, an intelligence struggle where the fundamental issues wind up being the collection of intelligence. All sorts of legal issues that rise out of surveillance, that arise out of detention, that arise out of rendition, that arise out of interrogation, that arise out of what constitutes impermissible interrogation and torture. All of those kinds of legal issues arise fundamentally in an area which is neither law enforcement, nor in most cases, many cases at least, is it something which is genuinely part of an actual armed conflict in a legal sense at that moment, in the sense that Afghanistan is an armed conflict, in the sense that the war in Iraq is an armed conflict in a legal sense. In those kinds of areas, and we can add one more to that, which is the use of force which is neither clearly police work, nor does it clearly rise to the level of armed conflict. So, you might call it the use of force short of armed conflict.

Those are the areas in which we largely lack legal regulation in which we do not have some sort of set out paradigm for dealing with it, in which we are grabbing pieces from the criminal law system, grabbing pieces from the law of armed conflict. I think that it’s time that we recognize that this area is going to require some new legal concepts and the elucidation of new areas that we’ve not gone into before. Part of which can be drawn from existing areas, but others of which I think will be genuinely new.

Now, the answer of the Bush Administration to date has been we have inherent executive authority, and skip all the legal arguments, but in effect, we have inherent legal authority from one source or another by which as an executive simply do all this stuff. We’ll do it in sort of a try this, try that fashion. If there’s too much public pressure in one area, then we will move to another approach. But basically we do not need to go to Congress in order to get this kind of authority. One way or another, we’ve already got it.

Now, I have read very carefully John’s book and many of John’s writings and am actually a closet disciple, John.

John Yoo: You’re going to regret that when you come up for confirmation hearings for the Supreme Court.

Kenneth Anderson: Right, right. Now, here’s the problem, however. I am a disciple of John’s in the pure ethereal, theoretical, scholarly, magnificently cerebral atmosphere of my attic. When I look at the actual war on terror, however, and when I look at what the Bush Administration has done its best to convince me of over the course of the years since 9-11, what has it said to me? It has said this is going to be a long war. This is going to be a long struggle. This is going to go on beyond any particular presidential administration. Look to the long term on this. Well, I am entirely persuaded of that. Under those circumstances I think it is also entirely unacceptable to say we the executive have simply got inherent authority to wind up doing whatever it is we think is the right approach to that in it or any particular circumstances.

The ability to respond to a national emergency is one thing. The ability to go on for decades in the form of the Cold War is another entirely. What we need now is a legislative pronouncement, is a legislative enactment, developed with the Administration that winds up institutionalizing this in some fashion. Institutionalizing it in the way in which we instituted and institutionalized the effort against the Soviet Union and the Cold War, one which marginalizes the Wallace Democrats and one in which also it embraces as broad a bipartisanship as possible. And I stress as possible. But one which is fundamentally something which can outlast any particular administration. We have not done that to date and it is, in my view, the single most important foreign policy obligation of this administration besides the prosecution of actual or possible wars.
Now, I can’t tell you what the details of that is supposed to look like. I can tell you a couple of things. First of all, there are areas besides the war on terror of enormous practical importance that go beyond the three that I had mentioned. Criminal justice on the one hand, armed conflict on the other and the sort of undefined intelligence thing in the middle. There is, for example, financial regulation to try and cut off the sources of financing. There’s diplomacy in the effort, for example, come up with a comprehensive definition of terrorism. There are all sorts of different aspects. The most important, however, is this undefined area that I’ve characterized as the intelligence struggle.

The areas that we need to develop standards would be at least these. One would be surveillance. Judge Posner has written a very useful, I think, very quick guide in the Wall Street Journal to what legislation should look like in order to deal with questions of FISA, the NSA, wire tapping, these kinds of things.

Second is that it’s going to have to wind up having a policy with regards to detention and rendition. What the standards are going to be for those things and how they interrelate with the existing laws of war to the extent that they have to develop new standards. And to the extent that one has got to find the lines between what constitutes legal armed conflict and not. And how on the other side, it interacts with the domestic criminal justice system.

Third, it’s going to wind up having to address the questions of interrogation and what crosses the line of permissible interrogation into torture. So the question of what’s the users manual going to be for the convention against torture. What actually crosses the line. I don’t think that there’s any alternative but for some kind of legislative enactment and I don’t think the McCain amendment did it. It’s a good start in order to at least start a conversation, but it did not answer the questions.

In that particular area of interrogation, I think that the most important question will wind up being do we believe that the standards of interrogation should wind up taking into account what it is that we know about the person whom we have in custody. Should it be the case that the harshness of interrogation, short of torture, is permissibly greater in the case of somebody who we know to a hundred percent in certainty is our enemy. Or, should it be something different in the case of somebody for whom we have no reason to know that this isn’t just the shepherd out there wandering around the hillside. We have to answer that question about whether it makes a difference what you know about the person you’re interrogating or not.

Then finally we have to, at least on this list, answer the questions about what are the standards for the use of force in circumstances that do not, in fact, rise to the legal standard of armed conflict. In most of those cases I believe in that latter case, I think that in many of those cases, that that actually is fairly easy that we should apply the standards that we would apply in armed conflict as a legal matter in any case. But none the less, I think that’s also something that needs to be legislatively enacted.

Now, let me close simply by saying once again that I do not believe that the next administration, Democrat or Republican, will hold itself to anything other than a sort of surface rhetoric about a war on terrorism unless it has somehow been institutionalized in a way by Congress. I think it will be seen as an artifact of this administration. Charitably, it will be seen as an artifact of the post-9-11 years, but I do not think there will be a war on terror as such unless this administration is willing to take it to the Congress and somehow get it passed as legislation. Thank you.