Benjamin Wittes on counterterrorism policy in Policy Review

Let me enthusiastically recommend Benjamin Wittes' superb new essay on counterterrorism and judicial review in the June-July 2007 issue of Policy Review, available free online here, "Terrorism, the Military, and the Courts."

Ben was formerly the Washington Post editorial writer on law and the judiciary, and is a Guest Scholar at Brookings and now my Hoover colleague as well as a friend. He gives a statement that is about as close anything comes to my own views, and much better expressed.

The "space" that Ben describes in his essay is certainly the space in which I live. From the essay's opening paragraphs:

The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again. At one point the previous year, they had actually arrested him, but not realizing who he was, had let him go. Unable to track him down now, they managed instead to locate and detain his wife and children, who were living in a remote area of Afghanistan. For several days, they interrogated his wife at an air base, but she repeatedly insisted that he was dead. Finally, they tried a new tactic. They noisily put a plane on a nearby runway, its engines running. As the commanding officer later recalled: “We then informed [her] that the plane was there to take her three sons to Saudi Arabia unless she told us where her husband was and his aliases. If she did not do this then she would have two minutes to say goodbye to her sons. . . . We left her for ten minutes or so with paper and pencil to write down the information we required.” Having threatened, in essence, to kill her sons — for nobody doubted what the Saudis would do to them — the interrogators got the information they wanted. And they got their man, disguised as a farm laborer, that evening.

What followed was a protracted habeas corpus action in the U.S. District Court for the District of Columbia. Lawyers representing the high-value detainee decried the coercive interrogation of his wife, the threat to his children, and the savage beating he incurred on his arrest. (The medical officer accompanying the troops who detained him had shouted to the commanding officer to call his men off “unless you want to take back a corpse.”) Human rights groups uniformly condemned the interrogation tactic as torture; major newspapers weighed in on their side. The Bush administration, meanwhile, insisted that the courts had no jurisdiction over any such overseas military action, which had in any event been lawful and had yielded essential intelligence and the capture of a very big fish. As of this writing, the lower courts have deemed themselves powerless to hear the case and the Supreme Court — for now, at least — has not intervened.

Should the courts hear it, notwithstanding an act of Congress that explicitly precludes review? If so, what should they hold? Is such a tactic — garnering information from a mother by threatening to have her sons beheaded by a totalitarian regime — ever legitimate? And who, in a society committed both to law and to victory in a global struggle against terrorism, is to be the judge?

The answers to these questions may seem obvious to many readers. Yet in the years since September 11, 2001, something of a gulf has opened between the views of elites — mostly but far from exclusively liberals — and majority opinion on these questions. That gulf was only accentuated by the Supreme Court’s Hamdan opinion, the resulting Military Commissions Act, and President Bush’s disclosure of the CIA’s secret prisons for high-value detainees. Public opinion has tended to regard these issues pragmatically — tolerating tough measures and contemplating with relative equanimity the deprivation of certain rights to terrorist suspects that are nonnegotiable in a civilian context. While public opinion data is nuanced, the Bush administration’s supposed menace to civil liberties and human rights has not had traction as an electoral issue; to the contrary, its opponents in Congress have feared electoral retribution for hampering the fight. For prevailing opinion in the academy, the press, and the human rights world, however, the standards of international humanitarian law represent moral absolutes, the administration’s flexible approach to them an affront to the rule of law, and the courts the principal line of defense against excessive executive power and its abuse. After all, there are certain things that civilized governments just don’t do. And in functioning democracies, victims of such misconduct, no matter how odious these victims may be, have access to the courts for redress — the threat of tyrannical government being ultimately greater than whatever threat even the worst criminals or terrorists may pose. In the end, the rules that limit governmental power have to be tough and the courts have to be available to make them real.

But let me now confess that I have adjusted somewhat the facts of my opening anecdote, which is, indeed, the true story of the capture of an uncommonly evil and dangerous man: The plane was really a train; the country was not Afghanistan but Germany; the soldiers were British, not American; the year was 1946. And the high-value detainee was not an al Qaeda figure but perhaps the greatest mass murderer of all time: Rudolf Höss, the commandant of Auschwitz. And the resulting habeas litigation, de rigueur today, was beyond anyone’s wildest imagination then. The stark reality is that absent an interrogation tactic that “shocks the conscience,” Höss — like his colleague Josef Mengele — might well have escaped justice, Nuremberg lost its star witness, and history denied his crucial accounts of the factory where 1.1 million people died.

If the tactic — and the absence of any judicial review of its use — does not suddenly seem more defensible, stop reading now. You have proven yourself both a principled opponent of abusive interrogation and truly committed to judicial oversight of legally dicey wartime practices. This essay is not for you. While I admire the certainty of your nonconsequentialism and your faith in judges, I share neither and can only thank God that neither did the British soldiers who captured Rudolf Höss.

This essay, rather, is for those who live in that gulf between the centers of gravity of elite and mass opinion — those not content to give the president a free hand in a messy, unending quasi-war but also suspicious that courts can and should supervise detentions and interrogations and doubtful that such operations are, in any event, easily subjected to absolute moral rules. This is uncomfortable territory, for the slope is indeed as slippery as slopes get — and slippery, I should say, on a hill with two distinct bottoms. At one lies a government capable of torture with impunity, the very essence of tyranny. At the other lies a government incapacitated from expeditiously taking those steps necessary to protect the public from catastrophic attack. Those of us who occupy this space stand vulnerable to the charge of having forsaken American values and to the charge of having done so with insufficient boldness to enable the executive branch to win. In reality, however, this is the intellectual and practical territory in which wars have been won with liberty preserved. If the United States is to win the war on terror now in the context of stable, democratic, constitutional government, I venture the guess that it is within this space — not with a dogmatic commitment to executive power, nor with an undying faith in the wisdom of judges — that it will do so.

My purpose here is to sketch a vision of judicial review in the war on terror for those who live in this space.