'Law and Terror', my new essay on legislating counterterrorism in Policy Review

My new essay on legislating US counterterrorism policy, Law and Terror, is about to be published in Policy Review, No. 139, October-November. I have posted a pdf at SSRN, here (there are still a couple of typos to be corrected in that pdf, but I wanted to get it up now, in advance of the November election). This is the abstract on SSRN:

This short policy article argues that both the Bush administration, in its final two years in office, and Congress have an obligation and interest in taking US counterterrorism policy beyond the current 'war on terror' operated on the basis of executive power and discretion, to comprehensively institutionalize it for the long term through Congressional legislation. It argues that the Military Commissions Act of 2006 is mistakenly aimed merely at satisfying the narrow requirements of the Hamdan decision, and is far from the comprehensive legislation that institutionalizing counterterrorism policy requires in order both to have democratic legitimacy with the American people and to have a permanency that goes beyond the discretionary whims of any particular administration.

The article very briefly lists topics which comprehensive legislation would address - surveillance, detention, rendition, interrogation and the definition of torture, a domestic intelligence agency, classified information reform, military tribunals, a special civilian counterterrorism court, legal protections for interrogators and indemnities to detainees for mistakes, rules on uses of force short of armed conflict, the role and interpretation of international law in US counterterrorism policy, and Congressional oversight. But it argues that the underlying issue is one of principles to guide counterterrorism policy, and that what matters first in Congressional legislation is the enactment of American values through a democratic process; the advantages accruing to executive discretion and its approach to counterterrorism have now been exhausted.

Given profound disagreement among Americans as to the proper balance of national security and civil liberties, and as to what concretely constitutes such things as torture, degrading treatment, etc., the only appropriate mechanism for resolving such deep disagreement in a democracy is to require legislators to vote on actual techniques of interrogation and intelligence gathering - in detail, specific descriptions, without euphemism or generalities. Is, for example, waterboarding always torture and therefore always forbidden? Anything less than such specificity - a key failing of the Military Commissions Act - dodges the question of democratic legitimacy. Let legislators raise their hands and vote on the specifics that enact America's values, and reveal where precisely, without abstraction or platitudes, they locate the necessary tradeoffs between security and liberties.