Jack’s Fix

One of the things I agree with

Ben Wittes

about is the need to get serious about how a next administration is going to fix various aspects of U.S. counterterrorism policy. That’s why one of the things I liked most about

Jack Goldsmith’s column

this week on the rule of law in the “war on terror” is that its “fixing it” premise accepts the reality that something is broken. On this, and several other points he makes, Jack and I certainly agree. In the spirit of productive dialogue, though, I focus here on a few of the areas on which we don’t.

Let me start with two points in this post, and I’ll turn to the biggie question of a national security court separately. First, I’m 100 percent in accord with Jack’s finding that the administration has had a bad habit of over-classifying information, and it would help for the public to know more—about the nature of the threat and our own responses to it. But disclosure for the purpose of restoring government credibility (though we surely need that too) is rather the least of the reasons why over-classification needs a fix. As pressing is the purpose of avoiding another 9/11—in no small measure a result of the failure of the pathologically secret intelligence agencies to share information with the other state and federal agencies that might actually help catch the terrorists. And then there’s that whole old-fashioned idea of open government in a democracy. Or something like that.

Anyway, given all that, I was then surprised to encounter what sounded strangely like a warning to the next administration—that after receiving a few harrowing threat briefings and absorbing the awesome personal responsibility of keeping Americans safe, the new commander in chief won’t rush to eliminate the Bush program and that he or she will realize that any legal climb-down that is later perceived as even indirectly responsible for an attack would be a personal and political disaster.

Actual legal obstacles were not principally (or, as best I can tell, even modestly) what prevented the U.S. government from averting the attacks of 9/11. The notion that they were seems to me to have been a myth propagated in the wake of the attacks to avoid a more clear-eyed (and less favorable) assessment of the administration’s less-than-stellar counterterrorism performance. Regardless, as authors, bloggers, and the like, we have some say in whether “any legal climb-down” (by which I take it he means any difference in approach) in detention or interrogation policies in the next administration is “perceived” as responsible for any next attack. I’d hate to think we’re setting up the next perception spin even before any “climb down” or attack happens. That may well not be how Jack intended this passage. But that’s how I read it.

A second issue. Jack wisely recognizes the importance of working with (rather than, say, antagonizing) international allies on whom we depend for success in our counterterrorism efforts. But I remain deeply skeptical of the utility of the recommendation he puts forward (one that has also come in recent months from current State Department Legal Adviser John Bellinger). Namely, that we work toward a new international legal framework for handling terrorist suspects. As best I can tell, the impetus for the “more international law” idea seems to come from two perceived needs: 1) Guantanamo is a catastrophic mess, it needs to be closed, and we need to do something with the prisoners that remain there, and 2) neither international nor domestic U.S. law allow us to preventively detain terrorist people who we think might someday pose a danger but as to whom we have no real evidence yet that could show they’ve done anything wrong.

On one, yes, of course Guantanamo is a mess—for a host of reasons. We didn’t afford the detainees there even the most basic status hearing under the Geneva Conventions when we first picked them up (for no discernable reason) and still had some hope of figuring out whether we had evidence justifying their detention; we picked up a bunch of the wrong (i.e. innocent) people; we treated some of them so badly we may’ve compromised our ability to secure convictions of those who may actually have done bad things; and we’ve created the best recruiting tool al-Qaida ever could’ve imagined. One could go on. But why then wouldn’t it be far better to try to “fix Guantanamo” by crafting a Gitmo-specific solution for these detainees—not by compromising the next 20-plus years of terrorism detention policy and practice as a result of trying to dig ourselves out of one of the worst security policy decisions of recent history?  Put differently, I can’t see why we should let the especially hard case make especially bad law.  Whatever we do next about Gitmo—and it should involve closure, it should involve Congress, and it should involve some combination of trial, repatriation and release—I’d just as soon try not to take fixing it as our baseline for all detention measures going forward.

Now, what of preventive detention (either for those still in Gitmo or, more to the point, for anyone we might pick up tomorrow)? The view that the current web of domestic and international laws regarding detention (a key area of dispute) is insufficient for dealing with the detention needs of international counterterrorism is, to say the very least, contested. And for reasons I’ll get to in a next post about a national security court, I think most arguments in favor of broader detention authority just don’t hold water. In the meantime, I’d like to know whether Jack, John, et al. think even a next administration (with necessarily less international-law lethal baggage than this one) will be able to overcome hurdles of trying to negotiate a new framework here with an international community that has failed to reach consensus for decades even on the threshold question of what we mean by “terrorism.”  Perhaps more to the point, which do they think is more likely to come sooner—a new international legal framework or the next attack?