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The TNR Conversation: Benjamin Wittes and Andrew C. McCarthy

Last week, The New Republic sat down to discuss recent legal developments in the war on terror with Benjamin Wittes, a columnist, fellow and research director in public law at the Brookings Institution and author of the new book Law and the Long War: The Future of Justice in the Age of Terror, and with Andrew McCarthy, director of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies and author of the recent book Willful Blindness: A Memoir of the Jihad.

TNR: I want to get your reactions to this week’s decision from the D.C. Circuit Court of Appeals in the Parhat case. The court rejected the administration’s rationale for detaining Mr. Parhat, who is a Uighur, a Chinese Muslim, at Guantánamo, finding no evidence that would qualify him as an enemy combatant.

Benjamin Wittes: Well, actually, what the D.C. Circuit did is very close to the vision of judicial review that I outline in my book, which is to say, being serious on holding the executive branch to statutorily defined guidelines for detentions, but not a playing a role in designing the legal architecture in the area. Now, on the merits of the case, I think the administration never should have identified these Uighurs as enemy combatants. These are people whom the administration has not argued are fighting against us. So, I think this is an example of what happens when you don't design your policies well.

Andrew McCarthy: I agree with Ben that it was foolish, at least at a certain point, to have these Uighurs lumped into the same system and into the same category as Khalid Sheikh Mohammed or others who are much less ambiguous cases of enemy combatants. But I don't think it's as clear-cut as Ben suggests. These guys, and Parhat included, were actually training in a camp that had very close al-Qaeda connections and may have actually been administered by al-Qaeda. But I do think a new category should have been created for them, because I would have thought the last thing the administration and the military would want would be to litigate what an enemy combatant is on facts like this.

TNR: Andy, you wrote a favorable review (sub. req'd) of Ben’s book, even though Ben thinks the administration's narrow-minded focus on executive power got in the way of creating a legal architecture for the war on terror. Do you find that criticism of the administration valid?

AM: Look, I believe the policies the administration adopted post-9/11 were better for national security than the ones we had pre-9/11. But that said, I do think that, and I've said this going back to 2003 or 2004, that at a certain point, when using the military system of detentions is obviously not working, and thoughtful people who want to support the policy realize that it's not a good fit, I think their energy would have been much better directed at trying to come up with a system that would be comprehensive and permanent and legitimate, rather than letting it get caught up in the politics of executive power.

TNR: Ben, do you think that's right? One of the messages I got from reading your book is that in many ways the procedures that are in place now have been demonized and aren't as brutally ineffective as is often portrayed.

BW: I really believe that neither the criminal law nor the law of war gets close enough to addressing our core long-term problems. In the short term, the Bush administration after 9/11 had absolutely no choice but to invoke the laws of war, and the reason frankly is that we wanted to start bombing Afghanistan, and we wanted to use U.S. military force to overthrow a foreign government--and there really are no legal tools to do that other than to invoke war powers. But in the long run, the consequence of relying on the wartime model of detention is that you cast this huge legal cloud over everything that you do, and it becomes very difficult to shake. The central argument of my book is that it was a mistake not to go to Congress and build a legal architecture that could sustain this for the long term much earlier, and every day we don't work on it, it's a bigger mistake.

TNR: You've both come out in favor of creating some sort of new national security court. And I'm curious how you draw the line and determine which cases get sent there. So if, for instance, the FBI were to apprehend a group of suspected terrorists domestically, would those terrorists go through the national security court? What if they were eco-terrorists or abortion-clinic bombers?

BW: It seems to me that what's essential is that we have a known set of rules going forward, that under which we're going to ask courts to authorize these detentions, and I would have a different set of procedures for foreigners captured abroad than I would for certainly the examples that you mentioned, which I would want to treat as much as possible--in fact, exclusively--under the criminal law.

AM: I would limit the people who would be brought into this court to the category of alien enemy combatants. I even think that people who are arrested inside the United States, presumptively ought to go into the criminal justice system unless there's evidence that they're actually enemy operatives, that they're working in cahoots with people that we've identified as the enemy in this conflict. Rather than having what is probably a not-very-useful argument over what the parameters of the battlefield are, we probably should be much more focused on who it is that we're fighting and under what circumstances they should be brought into the system.

BW: What I want to see is a much more substantial engagement with the question, how dangerous is this person? And I want a federal court to be involved--just as we do, by the way, with the severely mentally ill, whom we can lock up without criminal charges for a very long period of time. If you have an inquiry that produces not merely a two-word finding, "enemy combatant," but a real record that establishes that this person is a serious, dangerous guy, I think you're going to have a very different posture from the international public and the reviewing courts.

TNR: Andy, this is an issue that seems to be at the heart of the conservative response to the Boumediene decision, which is basically, how dare Justice Kennedy give all these procedural rights to people who are determined to destroy America? Based on Ben's book, anyway, it seems that the crux of the matter is that there are quite a few people at Guantánamo who aren’t real enemy combatants. What sort of process would you prefer to give to those people? Are they just out of luck?

AM: My beef has always been, from a national security standpoint, that asking courts to make this calculus is a disastrous thing to do. Because a court, aside from not being institutionally competent to deal with these types of national security and foreign relations issues, is also removed from the responsibility for national security. The problem with Boumediene is that the Court basically invited Congress to weigh in on this [in Hamdan], Congress in fact did weigh in on it, and the Court basically threw aside what Congress had done--and I think the Court not only threw it aside, but threw it aside at a very premature stage, before we'd even had a chance to see whether it would work or not.

TNR: Ben, the overarching theme of your book is that the administration should have gone to Congress--but here, in one of the few cases in which it did, the Court has cast that aside.

BW: I share some of Andy's anxieties about Boumediene, but I find it hard to get very outraged because the Supreme Court gave the administration a lot of warning that it was coming. At least since Rasul in 2004, the Court has been flashing a red light in the administration's face that said, "We're uncomfortable with this." You can't be too angry at the Court when the Court does exactly what everyone expected it to do. The political branches themselves need to ask some very tough questions about putting the policy in a posture in which the Court, given the inclinations the justices have, could plausibly be expected to defer, and they really haven't done that.

AM: I do think that Ben is right when he says that there's been an flashing red light since Rasul, but Congress stepped in significantly twice--first, in 2005 with the [Detainee Treatment Act] and again, emphatically, in 2006 with the Military Commissions Act. I don't think it was crazy on the administration's part to think that the fact that they had gotten congressional cover might actually save them in this case.

BW: Did you doubt that the government was going to lose in Boumediene?

AM: I doubted that they would lose as dramatically as they did.

BW: Let me ask you a different question. If you had been a government lawyer, what odds would have you told the administration that it had of losing?

AM: At least five chances in ten.

BW: So, a greater than 50 percent chance of a total, unmitigated disaster.

AM: Well, the question is whether it was unreasonable for them to think that Congress’s intervention was significant enough that they might have thought the Supreme Court would go their way, at least partially.

BW: I think you're overstating the significance of the congressional intervention.

AM: In retrospect, I certainly am!

BW: No, but I think prospectively, too. I mean, yeah, it is an intervening event, but if you start from the point of view of Rasul, which is obviously where the Court starts, the government says to the Court, "You have no jurisdiction over this stuff." And the Court says, "Yes we do." So, when the government turns around and gets Congress to say, "Oh no you don't, but we'll give you this little consolation prize with the DTA"--that's not what I would think the Supreme Court would regard as an intervening event that justifies the policy.

AM: I guess where I part company with you is that I don't think it was a little consolation prize. I think Parhat underscores this, because the DTA gave the D.C. Circuit the opportunity to litigate not only whether the military had complied with its own rules, but whether those rules comported with what was required under federal law.

TNR: Looking forward, what will Congress do, and what should Congress do, in the wake of Boumediene?

AM: My sense, from talking to people on the Hill, is that the Court decision has demoralized the forces that would otherwise have felt that they needed to jump in the fray and do something about it. They've now said, "Look, we've tried to do this twice and they've basically slapped us back," and they want to sit and watch for a while.

BW: This is admittedly an awkward argument for someone who's written a book saying Congress needs to get involved, but I think that the best course of action would be to say that discretion is the better part of valor and just wait until after the election. And I say that because anything that John McCain supports, Barack Obama has to oppose, and vice versa. And you don't want to have that debate in a context where we're all trying to polarize as much as possible. The right way to proceed is to let the next president come in and tell Congress what he thinks he needs. We need to have a very substantial discussion about who the people are that we want to detain and who the people are we don't, and we need to write that into law. We have not done that, and over the next year or so, we need to.

Josh Patashnik is a reporter-researcher at The New Republic.