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.
Don't count on the next president to undo George W. Bush's legal policies in the war on terrorism. All three remaining presidential candidates have pledged to close the detention camp at Guantanamo Bay, pay greater respect to law, tamp down unilateral presidential powers, and enhance America's stature abroad. But many controversial Bush administration policies have already been revised to satisfy congressional and judicial critics. And 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 as it stands next January. 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.
Aggressive counterterrorism policies will thus continue into the next presidency. They will, however, be wrapped in more attractive packaging and adjusted in ways appropriate for an indefinite conflict. Some suggestions for how to achieve these goals:
• Boost trust and credibility. Many people accuse the Bush administration of exaggerating the terror threat for political gain, but the truth is nearer the opposite: The Bush administration frets about homeland attacks more than it lets on. Yet as 9/11 recedes from national memory, the public worries less about the terror threat it cannot see and more about aggressive powers and policies whose purpose it cannot fully appreciate. This growing gap between the government's view of the terror threat and the public's is an enormous challenge for any president. "[P]ublic sentiment is everything," Abraham Lincoln once said. "With public sentiment nothing can fail; without it, nothing can succeed."
The next government can narrow this credibility gap by fighting the intelligence community's notorious tendency to over-classify, and by making public more threat information so the nation can better understand what it faces.
But more information from even a rhetorically gifted president will not be enough. The president's words are more credible when echoed by officials who do not share all of his political aims. When Franklin Delano Roosevelt began to prepare the nation for war in the spring of 1940, he appointed Henry Stimson and Frank Knox—Republicans who rabidly opposed his New Deal—as secretaries of war and Navy, respectively. These men were invaluable in convincing the Congress and the nation that FDR acted in good faith in taking aggressive steps against the growing but underappreciated German threat in the year before Pearl Harbor. The next president should follow FDR's lead by filling important national security positions with individuals from the other party.
• Work with Congress. The next president can further enhance the credibility of war-on-terror policies by getting Congress—especially political opponents in Congress—onboard. The president can share more national-security data with Congress than with the public. When Congress supports aggressive policies based on this information, the nation is more likely to accept that the president is acting in good faith. After 16 Democrats in the Senate and 41 Democrats in the House joined Republicans last August to give a weakened president unprecedented surveillance powers, it became much harder for critics to maintain that the terror threat did not warrant such broad powers.
When the president presses Congress to take a stand on war-on-terror issues, he and the nation receive other benefits as well. (This is a central theme of Ben Wittes' forthcoming Law and the Long War.) Forcing Congress to act spreads responsibility for policies when things go bad, as John Kerry learned when he tried to run away from his 2002 Iraq vote in the 2004 presidential election. Congressional debates educate the country about the nature and stakes of the terror threat. And congressional approval increases judicial support that will be crucial in the long war. The Supreme Court's main objection to President Bush's counterterrorism policies has been that he's acted without or contrary to Congress. But the court almost always goes along with national-security policies supported by both political branches.
There is no guarantee, of course, that the next president can persuade Congress about the terror threat or that Congress will not play politics with a terrorism issue. But the politics of terrorism usually cut in favor of aggressive action, and a president who genuinely engages Congress can almost always get what he or she needs for national security.
• Give the telecommunications carriers immunity. There is bipartisan agreement that the legal framework for surveillance is outdated and must be amended to give the president more flexibility to surveil potential threats, subject to congressional and judicial review. The most contested remaining issue in this area is whether Congress should confer legal immunity on telecommunications firms that cooperated with the administration's Terrorist Surveillance Program. Private-industry cooperation with government is vital to finding and tracking terrorists. If telecoms are punished for their good-faith reliance on executive-branch representations, they will not help the government except when clearly compelled to do so by law. Only full immunity, including retroactive immunity, will guarantee full cooperation. The Democrat-controlled Senate intelligence committee recently agreed, by a vote of 13-2, but the full Congress has thus far balked. The next president should push hard to see that full telecom immunity prevails.
• Close Guantanamo. There were two justifications for using Guantanamo as a detention facility. The first was to minimize judicial scrutiny. The courts have chipped away at this rationale for years and will likely eliminate it altogether when—as most commentators expect—the Supreme Court announces this June that U.S. constitutional protections extend to the base.
The second justification for Guantanamo was to avoid frightening and possibly endangering U.S. citizens. This justification still has force but is outweighed by the fact that Guantanamo is now widely viewed—justifiably or not—as a damaging symbol of American mistakes in the war on terrorism.
One should not, however, underestimate the political difficulty of putting Guantanamo out of business. It will be interesting to watch the dance among states clamoring not to become home to Khalid Sheikh Mohammed and his friends.
• 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, an assistant attorney general during the Bush administration, teaches at Harvard Law School and is a member of the Hoover Institution's Task Force on National Security and Law.
Photograph of George W. Bush on Slate's home page by Ken Cedeno-Pool/Getty Images.