Fixing legal policy in the war on terrorism.

Fixing legal policy in the war on terrorism.

Fixing legal policy in the war on terrorism.

Repairing some of the worst Bush administration screw-ups.
April 2 2008 7:12 AM

The Laws in Wartime

Boost trust, Close Guantanamo, and establish a national-security court.

With President Bush's approval rating hovering in the 30s, just about everyone has an opinion on what George W. has done wrong in the last seven years. But not everyone can explain what the next president must do to fix it. So we've called in some experts to tell us. Fixing It is a 10-part series to be published over the course of this week with contributions from some of our favorite writers, offering detailed policy prescriptions for the next president, whoever that may be, on how to quickly undo some of the damage. One of our contributors wryly describes the series as "News You Can Use. If You Happen To Be President." Read the other entries here.

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• Establish a national-security court. Closing Guantanamo begs the question of what should be done with the 100 to 150 remaining detainees whom no responsible president will release, as well as any future detainees. Right now, 15 detainees are scheduled to be tried in military commissions. But trial by military commission is not the solution. The politically damaged commissions are disliked by the same military tasked with running them, and they will be subject to legal and political challenges for a decade. The next government should ditch commissions altogether and place the incapacitation of terrorists under the supervision of a national-security court composed of federal judges with life tenure.

The national-security court would have two jobs: trying terrorists and reviewing the detention of those who cannot be tried. Trials could be governed by modified rules of evidence, secrecy, and security that are constitutionally valid but not currently available in ordinary criminal trials. National-security court trials would be more legitimate than military trials because they would be run by independent Article III judges rather than military judges. And they would attract fewer legal challenges because unlike military commissions, most of the procedural and substantive rules they'll employ would be time-tested.


But criminal trials are not always feasible. Sometimes the government has credible information that a detainee is very dangerous but cannot prove a crime beyond a reasonable doubt with nonclassified information in a manner consistent with civilian standards of justice, even as modified. When the government certifies that this is so, terrorists should be detained pursuant to a system of preventive detention akin to the one now in place in Guantanamo, but supervised instead by the national-security court. Congress should ensure that this system applies to citizen and noncitizen detainees alike and has procedural protections appropriate for indefinite detention, including appointed attorneys with proper security clearances, access to all information the government has on the detainee, and ongoing review to ensure that the detainee remains a threat.

• Work with allies to establish an international legal framework for terrorists.  Last week, John McCain called for a "new international understanding on the disposition of dangerous detainees under our control." This is a good idea, not because of a squishy commitment to internationalism but because an international consensus on how to treat detainees would foster deeper international cooperation crucial in thwarting terrorists.

To achieve this goal, the United States must stop talking about which international laws do not govern the detention of terrorists and start talking about which ones do. The Supreme Court took a step in this direction when it determined two years ago that Common Article 3 of the Geneva Conventions—which provides minimal and rather abstract rights to enemy combatants—governs the conflict with al-Qaida. The United States can flesh out the meaning of Common Article 3 by drawing on some aspects of Article 75 of the First 1977 Protocol to the Geneva Conventions, which provides more elaborate minimum-warfare standards. The United States has rightly opposed ratifying the protocol in all its details for fear of legitimizing terrorism, and Article 75 itself contains vague provisions that in the wrong hands might be viewed as too restrictive. But these uncertainties are also an opportunity for the United States to draw on higher international standards to flesh out the meaning of Common Article 3 while at the same time shaping these standards to its own conception of appropriate justice.

There is more room for international agreement on these issues than one might think. The foreign affairs committee of the House of Commons recently concluded that the Geneva Conventions "lack clarity and are out of date" and urged the British government to "update the conventions in a way that deals more satisfactorily with asymmetric warfare, with international terrorism, with the status of irregular combatants, and with the treatment of detainees." The German foreign minister and an important European security organization have made similar recommendations. And last year, John Bellinger—the State Department legal adviser who has worked hard to bridge differences with allies on these topics—convened an important meeting at West Point with legal advisers from seven allied nations to forge consensus on these issues. The next president with fresh goodwill should build on these developments.

• Fix interrogation. In 2005 and 2006, Congress went along with a two-track approach to interrogating terrorists suspected of having information crucial to stopping an attack. It held the military to a very high standard but allowed the CIA to maintain a program of classified interrogation techniques that must not amount to torture or cruel, inhuman, humiliating, or degrading treatment. Earlier this month, Congress changed its mind and tried to extend the DoD rules to the CIA, but President Bush vetoed the bill.

The way forward on this issue builds on a proposal by former President Bill Clinton. Congress should require the next president to make a classified finding—akin to findings used for covert operations—giving reasons why aggressive techniques are required. This finding and the subsequent interrogations should be reviewed for legality and effectiveness by an internal executive-branch body and reported to the congressional intelligence committees. This approach would maintain the option of using lawful interrogation techniques that might stave off a crisis, while at the same time addressing legitimate concerns about accountability, legal compliance, and abuse.

We are surprisingly close to putting policy issues in the war on terrorism on a sound legal footing appropriate for the long term. The most important issue for the next administration to resolve is the system for incapacitating terrorists. Beyond that, what the next president most needs to fix are appearances and processes in dealing with the public, Congress, and the world. This is no small thing. A major lesson of the last seven years is the centrality of these soft factors to the successful exercise of the hard power needed to defeat the terror threat.

Jack Goldsmith, a professor at Harvard Law School and author of The Terror Presidency, worked in the Bush administration from 2002 to 2004 and is a member of the Hoover Institution Task Force on National Security and Law.