Law and the Long War

April 14, 2008
Brookings Institution fellow Wittes evaluates the “war on terror” from a refreshingly nonpartisan perspective that assesses the chasm between the gravity of American security needs and the “inadequacy” of its laws. Both a defense and critique of the Bush administration, the book argues in favor of many of the measures taken by the executive branch while condemning its failure to secure congressional cooperation and the necessary “legal architecture” to back policies that were bound to be unpopular. Wittes reserves his real ire for a legislature that has ignored its mandated responsibility of creating “coherent, legal structure for this war” and a Supreme Court that has attempted to extend its jurisdiction over detainees and is increasingly interfering in foreign policy. Wittes’s familiarity with the law and excellent analysis of contemporary Supreme Court cases give this book insight that transcends party politics and make for a fascinating read; however, his heavy reliance on legalese may alienate casual readers. His prose, when not bogged down by jargon, is appealing (“The Constitution is old—old and short”) and services a robust call to action.

June 1, 2008
Wittes (research director in public law, Brookings Inst.) attempts to stake out a middle ground between civil libertarians, who see the courts as the protector against Executive Branch abuses in the war on terrorism, and Justice Department architects of the war on terror. He does an excellent job of discussing the way this country has historically treated prisoners in wartime, citing Civil War and World War II examples. In clear prose, the book starts by discussing existing laws prior to the 9/11 attacks, then dissects the Patriot Act and the tangled response of the courts to prisoner interrogations, detentions, trials, and surveillance. The central thread of the book is that the Bush administration failed to involve Congress in its decisions and flouted the Geneva Conventions. Thus, the book is a rebuttal to John Yoo's "War by Other Means: An Insider's Account of the War on Terror", which argued that the Geneva Convention did not apply to al-Qaeda and that the President's broad war-making powers gave him control over terrorism, with Congress's role limited to cutting off funds. Wittes succeeds at proposing a statutory framework for fighting terrorism. Recommended for legal or current events collections in public as well as academic libraries. [See Prepub Alert, "LJ" 3/1/08.]Harry Charles, Attorney at Law, St. Louis, MO

Copyright 2008 Library Journal, LLC Used with permission.

July 1, 2008
Legal affairs columnist Wittes here examines various legal aspects of the Bush administrations war on terror, arguing that the structures that are currently in place are inadequate for protracted counterterrorism efforts. The key problem, he finds, is that the administration hasasked Congress to create new laws only whenthe administrationfelt it had no alternative (and Congress has been content to stand aside). As a result, there exists no mature legal architecture (i.e., substantive legislation of adequate breadth and flexibility) for dealing with the civil liberties and human rights concerns that arise in response to aggressive counterterrorism policies. The legal foundation for surveillance, rendition, torture, and Guantnamo is thus cobbled together out of outdated and ill-fitting materials, andits flaws are glaring. In spite of such condemnation, Wittes remains highly sympathetic to the administrations aims, giving them the benefit of the doubt on matters that other critics of the administration have not. Ultimately, his hope is that innovative legal structures will be forthcoming and seen as legitimate in a way that current efforts are not.(Reprinted with permission of Booklist, copyright 2008, American Library Association.)