Trying Terror
Two books on how our legal system is adjusting to terrorism.

Reviewed by Michael J. Glennon
Sunday, September 14, 2008


Hamdan v. Rumsfeld and the Fight Over Presidential Power

By Jonathan Mahler | Farrar Straus Giroux. 334 pp. $26


The Future of Justice in the Age of Terror

By Benjamin Wittes | Penguin Press. 305 pp. $25.95

After the terrorist attacks of Sept. 11, 2001, Osama bin Laden's driver and aide, Salim Hamdan, was captured by Northern Alliance fighters in Afghanistan. They hog-tied him with electrical wire, placed a hood over his head and turned him over to American forces for a $5,000 bounty. Six months later, he was transferred to the newly built U.S. detention center at Guantanamo Bay, Cuba. There, he was given a 35-year-old military defense lawyer named Lt. Cmdr. Charles Swift, who candidly introduced himself by saying, "I work for the same people who are holding you here."

Few thought Swift would mount a real defense. His assignment was to get Hamdan to plead guilty -- even though no charges had been brought -- and he was told that if he didn't, his access to Hamdan would be cut off. But in 2004, with the help of Swift and a young law professor at Georgetown named Neal Katyal, Hamdan sued the secretary of defense and the president of the United States. Two years later, he won. In Hamdan v. Rumsfeld, the Supreme Court struck down the Bush administration's original plan for special military tribunals, saying they would violate the Geneva Conventions and the Uniform Code of Military Justice.

The route to that decision is detailed in Jonathan Mahler's The Challenge, an insider's account written with the cooperation of Hamdan's lawyers. Subsequent events have somewhat eclipsed the book; if Hamdan thought his victory in the Supreme Court was the end of his tortuous journey, he was wrong. Shortly after his lawyers explained the court's 5-3 ruling to him, Guantanamo guards confiscated his copy of the opinion. The president persuaded Congress to approve new military commissions with somewhat different rules, and Hamdan was tried in the first such proceeding since World War II. Last month, he was convicted of material support of terrorism and sentenced to five-and-a-half years in prison; with credit for time already served, he could be eligible for release early next year. Then again, the Defense Department has said it may hold him indefinitely as an "enemy combatant."

Mahler, a writer for the New York Times Magazine, aims simply to tell the story of the original litigation. But The Challenge would have benefited from less detail about the personal lives of Swift and Katyal and, in fairness, a little more attention to the lawyers for the other side and their arguments.

While Mahler doesn't say what should be done with detainees in the war on terror, Benjamin Wittes does. Recognizing that the answers are "paralyzingly non-obvious," he contends in Law and the Long War that the question of how the U.S. government should snoop on, detain, interrogate and try suspected terrorists requires a whole new legal framework.

Wittes, a former editorial writer for The Washington Post and now a fellow at the Brookings Institution, proposes various policy changes. For future Hamdans, he says, some form of administrative detention might be in order, possibly overseen by new, civilian-run courts that have jurisdiction only over war crimes and unlawful enemy combatants. Electronic intercepts should be used aggressively, not only to surveil terrorists who have already been identified but also to acquire new suspects. Torture, on the other hand, should be outlawed; in exceptional cases when officials conclude that it's essential, the president should be required to authorize it personally and then stand up publicly and grant something like a pardon to government employees who would otherwise incur criminal liability. Wittes is concerned about preserving the system's integrity, and he pulls no punches: In his view, President Bush's willingness to permit waterboarding while insisting that the United States doesn't torture is the "kind of double-talk that denudes law of meaning and renders the presidency morally laughable."

Some analysts view the struggle against international terrorism as a law-enforcement problem, while others call it a war. Wittes contends that neither model fits very well. The big question for him is: Which branch of government should write the new rules for a hybrid approach? Neither the executive, he believes, nor the courts; Congress should take the lead because the nation needs a coherent, democratic legal regime to deal with terrorism, rather than the patchwork of judicial decisions that's now emerging. Wittes acknowledges that the legislative branch's performance on terrorism issues has been uneven since 9/11. Still, he contends, it remains best suited to forge consensus and ensure the system's legitimacy.

Is Wittes right? It's far from clear that the terrorist threat is as great as he seems to assume; the threat was underestimated before 9/11, and he and others may be overestimating it today. If the threat is indeed grave, it's not evident that greater consensus would be in the national interest; a certain degree of discord is healthy on these sorts of nerve-center issues. Nor is it clear that more comprehensive legislation would mean a lesser role for the courts. Congress will inevitably leave room for disagreement about what its words mean, and legislative approval is no guarantee of either fairness or farsightedness.

Those who like what the president and Congress have done since 9/11 probably will like many of Wittes's ideas. Those who like what the courts have done probably won't. All will profit, however, from his evenhanded and elegantly written analysis. The continuing challenge posed by Salim Hamdan (and many others like him) is to ensure protection against both terrorism and the government itself. That will require painful tradeoffs. Agree with Wittes or not, his effort to get the balance right is a must-read in the contemporary literature about reconciling security and freedom. ยท

Michael J. Glennon is professor of international law at the Fletcher School of Law and Diplomacy, Tufts University. He is the author of "Constitutional Diplomacy."

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