This week saw the start of jury selection in the first military tribunal at Guantanamo Bay. After six years of waiting, Osama Bin Laden's alleged chauffer, Salim Ahmed Hamdan, went on trial for dangerous acts of driving in furtherance of terrorism. Whether he is convicted or acquitted, Hamdan may live out the rest of his lifetime at Guantanamo. The tribunal probably won't do much to improve the Bush administration's reputation for making up the rules on the run in the legal war on terror. The summer of 2008 offers up a bumper crop of great new reads about law and the war. Will you sleep better or worse at night after reading this stuff? Probably not at all if your last name is Hamdan.
For starters, Howard J. Bashman's law blog How Appealingis as close as you'll get to an up-to-the-minute legal newsfeed. Lyle Denniston at SCOTUSblog knows more about the ongoing legal happenings at and around Guantanamo Bay than just about anyone. So do the folks at the Brennan Center and the ACLU. So many outstanding bloggers have been on the front lines for years, drilling down to get the real story on FISA violations, torture, the "state secrets" privilege, national security letters, secret renditions, Patriot Act abuses and various other executive branch extracurriculars. Some of the very best include Scott Horton's wonderful No Comment; Jack Balkin's indispensible Balkinization; and TalkingPointsMemo's TPMMuckraker on the U.S. attorney scandal, fun with Alberto Gonzales, and torture policy. Particularly in light of the new FISA legislation, Salon's Glenn Greenwald and group blog Firedoglake are not to be missed.
One of the best ways to keep up on what's happening at Guantanamo Bay is through the foreign papers. Canada's Globe and Mail and the Toronto Star write about Omar Khadr, the young Canadian who's been detained at the camp since he was 15, almost daily. While the happenings at Gitmo rarely break the A section of U.S. papers, the British, French, and Australians are always on top of them.
Some of the best books about how the Bush administration has moved the legal goalposts in the past few years are some of the earliest. Slate contributor Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administrationis almost two years old but still invaluable, as is Charlie Savage's Takeover: The Return of the Imperial Presidency. A crop of newer books about torture include Philippe Sands' Torture Team: Rumsfeld's Memo and the Betrayal of American Values. Sands argues that the change in torture law came from the highest levels of the Bush administration and not just a few bad apples at the bottom. Darius Rejali's chilling Torture and Democracyis a sort of taxonomy of torture. Jane Mayer's forthcoming The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Idealsoffers another behind-the scenes look at the U.S. interrogation policy and the price we've paid by resorting to torture. Each of these new offerings, plus a handful of books from former detainees, remind us of the social and moral costs of hasty decisions to cheat on long-settled humanitarian norms.
Speaking of cheating, another must-read for those curious about the back story in the legal war on terror is Eric Lichtblau's The Remaking of American Justice. Lichtblau won a Pulitzer Prize for reporting on the secret NSA wiretapping program. His book is a riveting account of the Bush administration's various steps and missteps in chasing down terrorists.
Reading all of these books and blogs together starts to illuminate the connections between the black hole we've built at Guantanamo Bay, the black hole that is our torture policy, and the black hole that is our eavesdropping law. We may not have all the answers yet, but we can begin to understand how we arrived at this point: through a process of secret legal memos, decision-making by a tiny cadre of powerful insiders who could accept no answers but their own, and denials and finger pointing in lieu of legal course-correction.
That's why I want to close with a thoughtful new book by Ben Wittes called Law and the Long War: The Future of Justice in the Age of Terror. It is one the first serious attempts to bridge the gap between fear-mongers on the right who insist that the legal nips and tucks of the past seven years have saved lives and the flamethrowers on the left who see every move by the Bush administration as a power grab. Ultimately, Wittes blames a supine Congress for its failure to play any meaningful role in crafting modern solutions to the war against terrorism. You may not agree with him on the merits of U.S. detention, surveillance, or interrogation policies. But Wittes is right to suggest that the time to devise a thoughtful and rational new architecture for a new legal era is before the next terror attack and not in the panicky aftermath.