Benjamin Wittes

Benjamin Wittes

Benjamin Wittes is a fellow and research director in public law at the Brookings Institution. He is the author of Law and the Long War: The Future of Justice in the Age of Terror (Penguin Press, 2008), Starr: A Reassessment (Yale University Press, 2002), and Confirmation Wars: Preserving Independent Courts in Angry Times (Rowman & Littlefield and the Hoover Institution Press, 2006). He is a columnist for the New Republic online and a contributing editor for the Atlantic Monthly. Between 1997 and 2006 he served as an editorial writer for the Washington Post specializing in legal affairs. Wittes also covered the Justice Department and federal regulatory agencies as a reporter and news editor at Legal Times. His writing has appeared in a wide range of journals and magazines, including Slate, the New Republic, the Wilson Quarterly, the Weekly Standard, Policy Review, and First Things. Wittes graduated from Oberlin College.

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  • The Next Ten Years

    Ten years have passed since the opening of the U.S. detention facility at Guantánamo Bay, Cuba, and the anniversary was marked with much hand-wringing. There were articles by former detainees, a statement by retired military personnel, denunciations of President Obama for his failure to close the site, and tear-stained statements by human rights groups.

    In a decade of policy experimentation at Guantánamo, some efforts have succeeded, some have failed tragically, and some are still in process. But far more interesting than the past ten years is what the next ten will look like. And that subject seems oddly absent from the conversation.

    Make no mistake: there will be another ten years of Guantánamo. (Even if Guantánamo itself miraculously closed, we would have to build it somewhere else.) Our forces already hold more detainees than they can safely release or put on trial before any tribunal to which this country would attach its name. And in any future conflict against nonstate actors, our forces are likely to capture more of such people, and we will have to put them somewhere. If the United States is lucky, we may be able to reduce the number of detainees further than the combined efforts of the George W. Bush and Obama administrations have so far managed. But we will not eliminate it, and even if we could, we cannot guarantee that we will not replenish it all of a sudden in some future, spasmodic set of military operations abroad.

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    My former colleagues on the Washington Post editorial page have weighed in quickly on Eric Holder’s speech yesterday with an editorial entitled, “It’s Time to Release the Drone Memos.” The gravamen of the editorial, as the title suggests, is that the administration “should release the Justice Department memorandum that lays out the domestic and international strictures which, it says, undergird its drone policy.” The editorial does not take issue with Holder’s speech. Indeed, it says generally that,

    We agree with the thrust of Mr. Holder’s statements. But these are assertions based on the administration’s interpretation of the law, not an explication of which laws it relies on in justifying these strikes.

    The country learned all too well during the Bush administration’s indefensible use of torture how existing legal authorities can be twisted. Soon after President Obama took office, Mr. Holder made public many of the Bush-era “torture” memos crafted by the Justice Department’s Office of Legal Counsel; he should now perform a similar public service by releasing — in redacted form, if necessary — the department memos that deal with drone strikes.

    I certainly support releasing as much of the underlying documentation as possible, and I have no end of admiration for the Post editorial page. That said, this argument seems to me a little bit off. For one thing, I think the administration deserves considerable credit for–beginning with Harold Koh’s ASIL speech, continuing through Jeh Johnson’s and John Brennan’s speeches, and culminating in this one by Holder–laying out a great deal of its general legal theory. It has gone from near total silence on the subject as drone strikes ramped up to a fairly comprehensive account of the legal basis for what we are doing.

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    I promised yesterday that I would have more to say about Andrea Prasow’s comments on the fairness of the Majid Khan plea agreement after I had a chance to stew on them a bit. In the meantime, I have learned that Human Rights Watch, for whom Prasow works, is not the only major human rights organization to have weighed in on the Khan plea. In this post by Advocacy Counsel Melina Milazzo, Human Rights First offers a thematically similar critique. The emphasis in Prasow’s and Milazzo’s comments differs slightly, but as they both advance a similar thesis, I am treating them in a single post.

    The thesis, as Milazzo puts it, is that “While this [deal] might be touted as a win-win for the U.S. government and Mr. Khan himself, it’s ultimately a loss for the integrity of the American justice system.” Prasow formulates it in similar terms: “Yes, a man pleaded guilty today to serious crimes. But his plea is no victory, at least not for justice and the rule of law. Instead, it is a reminder that a fundamentally flawed system will continue to produce fundamentally flawed results.”

    I think this thesis is wrong on its own terms. I also think that the arguments Prasow and Milazzo muster in support of it are either wrong or non sequiturs–or both.

    Let’s start with their big picture point. In my view, at least, any time a criminal defendant is willing, voluntarily and without compulsion, to take responsibility for his crimes (which are in this case very serious crimes), that is a good thing. If we are to condemn it as  ”a loss for the integrity of the American justice system” or as “reminder that a fundamentally flawed system will continue to produce fundamentally flawed results,” we need a pretty good reason to think the results flawed or lacking in integrity.

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    It is always an awkward spectacle when a court has to climb down, having issued an opinion that it has no real power to effectuate. That’s what has now happened in the British Court of Appeals in the case of Yunus Rahmatullah. The opinion, which came down today, is a faintly-embarrassing retreat from the judicial arrogance with which this case began. The Rahmatullah case began with a roar, but it ends with a whimper.

    Rahmatullah, you’ll recall, is the Pakistani detainee held at Bagram by U.S. forces but who was captured by British forces in Iraq in 2004 and transferred to American custody. Back in December, as Bobby explained at the time, the British court ruled that he was being unlawfully detained and issued a habeas writ compelling the British government to seek his return so that he could be freed. In that opinion, the judges were making a statement of sorts–a statement of impatience with supposed American lawlessness and with the war paradigm for counterterrorism. They were ordering the British government, on pain of contempt, to confront these evils, at least as to this one detainee.

    The decision, as I described in this post, created a real diplomatic problem. British officials–who actually want nothing to do with Rahmatullah–were forced to make significant efforts to free him. American officials, meanwhile, were placed in a bizarre position too. To fail to move expeditiously to free Rahmatullah potentially subjected the government and officials of a closely allied country to serious legal problems before their own courts. On the other hand, the British requests clearly didn’t reflect anything more than legal compulsion, and there is something offensive about the idea that the United States would have to free a detainee because of the order of a foreign court in a case to which the United States is not even a party and in which reaked of America-bashing. And on the third hand, there were some additional, uh, complications that militated towards a release: The United States was, in fact, party to a memorandum of understanding with the British that suggested that the British could have Rahmatullah back if they wanted him–as officials were now, under court order, pretending to do. And our own Detainee Review Board in Afghanistan had ruled that while Rahmatullah was lawfully detained, he might be transferred to Pakistan safely were appropriate security arrangements made.

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    A Bewildered Reply to Mary Dudziak

    Ritika linked yesterday to this New York Times oped by USC law professor Mary Dudziak, which opens:

    THE defense secretary, Leon E. Panetta, recently announced that America hoped to end its combat mission in Afghanistan in 2013 as it did in Iraq last year.  Yet at Guantánamo Bay and elsewhere, the United States continues to hold enemy detainees “for the duration of hostilities.”

    Indeed, the “ending” of combat in Afghanistan and Iraq appears to have no consequences for the ending of detention. Because the end of a war is traditionally thought to be the moment when a president’s war powers begin to ebb, bringing combat to a close in Afghanistan and Iraq should lead to a reduction in executive power — including the legitimate basis for detaining the enemy.

    Dudziak concludes:

    Mr. Obama is trying to have it both ways. Ending major conflicts in two countries helps him deliver on campaign promises. But his expansive definition of war leaves in place the executive power to detain without charges, and to exercise war powers in any region where Al Qaeda has a presence.

    I confess myself baffled by this argument, but to the extent I understand it, it warrants a brief response. It is simply not true that the Obama administration contends–or is acting like–the end of hostilities has no consequences for detention authority. In Iraq, the United States once held tens of thousands of detainees. Now it holds, and claims the authority to hold, none. With respect to the war against Al Qaeda and the Taliban, the United States still has troops deployed in Afghanistan who are actively fighting Al Qaeda, the Taliban, and associated forces on a daily basis. Whatever the point at which hostilities can reasonably be said to be over for purposes of conveying detention authority, we are nowhere near that point yet. And critically, I don’t know anyone in the Obama administration who would argue that detention authority will persist after hostilities really are over–any more than we took our prisoners with us when we left Iraq. Indeed, if the negotiations with the Taliban that are now getting started were to produce a peace deal, it’s hard for me to imagine that detention authority would persist vis a vis Taliban detainees.

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    Writing in Salon magazine, Laura Pitter of Human Rights Watch declares that “fundamental procedural protections afforded defendants in federal courts simply do not exist in military commissions. And without comparable fairness and transparency, the promise of justice remains a big question mark.” Pitter spent Tuesday and Wednesday of this past week, as did I, watching the Al-Nashiri military commission. But in reading her piece, I wondered whether she and I had watched the same arguments. The arguments I saw reflected a sharply adversarial process, with a serious judge, very fine advocacy on both sides, and a series of motions that raised issues that differ only at the margins from those that would arise in a federal court proceeding. Pitter, by contrast, says that “this week, behind thick bulletproof glass in a secure hangar-like courtroom at Guantanamo, I saw vast differences between the two systems.”

    The trouble is that many of the “vast differences” Pitter describes are actually mirages. They exist largely–or in some cases exclusively–in the minds of those who want very badly to see them. Indeed, nearly every point in Pitter’s essay is wrong, or at least misleading, and she is putting these points out in the name of an important human rights NGO whose monitoring of legal proceedings is taken seriously by many people. While there are legitimate questions about the developing military commissions system, it is important to focus on the real questions, not the mirages. I therefore offer the following point-by-point response not because I hope to convert Pitter to the cause of military commissions, about which I have mixed feelings myself, but rather as an exercise in clarifying what is truly distinctive about the commissions process, and what is not.

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    This week marks the 10th anniversary of the opening of the U.S. detention facility at Guantanamo Bay, Cuba, and the hand-wringing is in high gear. There have been op-eds by former detainees, a statement by retired military personnel, denunciations of President Obama for his failure to close the site and tear-stained statements by human rights groups.

    In a decade of policy experimentation at Guantanamo, some efforts have succeeded, some have failed tragically and some are still in process. But far more interesting than the past 10 years is what the next 10 will look like. And that subject seems oddly absent from the current conversation.

    Make no mistake: There will be another 10 years of Guantanamo. (Even if Guantanamo itself miraculously closes, we’ll have to build it again somewhere else.) Our forces already hold more detainees than they can safely release or put on trial before any tribunal to which this country would attach its name. And in any future conflict against non-state actors, our forces are likely to capture more of such people, and they will have to put them somewhere.

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    By Benjamin Wittes & Robert Chesney

    The volume of sheer, unadulterated nonsense zipping around the internet about the NDAA boggles the mind. There was a time–only a few months ago–when the NDAA detention provisions were the obscure province of a small group of national security law nerds. Now, however, this bill has rocketed to international notoriety. The added attention to it is a good thing. It’s an important subject and warrants genuine debate and discussion. The trouble is that much of the discussion is the intellectual equivalent of the “death panel” objections to the health care bill. While certain journalists have done a good job covering the controversy, it’s much easier to get bad information than good. The reader who wants answers to simple questions faces a confusing array of conflicting information.

    Here then, as a public service, is an NDAA FAQ–a simple attempt to lay out the key questions people are asking about the NDAA and answer them as simply and neutrally as we can. Many of the answers here we have discussed in greater depth elsewhere on the blog. We will link to those posts for readers who want greater depth. This is an overview, a Guide for the Perplexed.

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    The conference report for the NDAA is now available. Subtitle D, entitled “Counterterrorism,” begins on page 653 and runs through page 685. The conferees’ explanation of their choices begins on page 158 of a separate document.

    I will blog as I read. Readers many find my earlier posts comparing the House and Senate versions of the bill (here and here) helpful as they make sense of the conference report.

    Here are some highlights:

    • The Senate has prevailed on the question of AUMF reaffirmation. The House bill, recall, would have contained a general reaffirmation of the AUMF, whereas the Senate language would only have reaffirmed that the existing AUMF authorized detention operations. The conference report has adopted the Senate approach. (See Sec. 1021.)

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    A bunch of readers have written to me since I posted this little item questioning whether New York Times editorial page editor Andy Rosenthal got it wrong when he wrote that:

    When President Obama came into office in 2009 he promised to shut down the Guantanamo Bay detention camp and end the extra-judicial system that his predecessor had created to imprison terrorist suspects without trial, often without even filing charges. He has broken that promise (emphasis added).

    Some readers pointed out that Rosenthal must be ignorant of the President’s speech at the National Archives in May 2009, in which Obama explicitly discussed long-term detention as a possible component of a Guantanamo closure. I am inclined to defend Rosenthal on this point. That speech, about which I have written extensively, took place months after Obama took office, and Rosenthal might reasonably see it as the first major statement in which the President backed off his commitments.

    Others have pointed me to various statements that Obama made that may be said to justify or falsify Rosenthal’s contention. Only one, in my view, even comes close to justifying Rosenthal’s claim that Obama came into office having promised to forswear non-criminal detention. There may be others. As I said in my original post, I have not gone through every statement Obama made. So far, however, this is the only one I have seen that helps Rosenthal even a little. And for reasons I will explain, it doesn’t help him much.

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    Udall Amendment on NDAA

    Senator Mark Udall of Colorado is pushing an amendment to the NDAA to strip the bill of its detainee-affairs provisions and require further study of the relevant issues from both the executive branch and relevant congressional committees. Here is the amendment, and here is Sen. Udall’s statement about it.

    As Lawfare readers know, my feelings about both the House and Senate versions of these provisions are mixed. Congress’s sudden interest in legislating the parameters of U.S. detention authority strikes me as healthy; indeed, I have been calling for just such a thing for years. I believe in legislation that would authorize the detention we’re engaged in–or even, as the House bill aims to do, the larger conflict we’re engaged in–and codify something like the administration’s Guantanamo review process in law. On the other hand, the transfer restrictions and the mandatory detention provisions and the prohibition against civilian trials in the House bill, and the other ways in which these bills needlessly micromanage complex areas of executive discretion are very very bad. The result is that a proposal like Udall’s puts me in a difficult position: How much do I value this particular legislative baby when soaked in this particular bathwater? And if I’m not allowed to drain the water, do I chuck both or keep both?

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    The Administration’s SAP

    Finally, the administration has spoken clearly, directly, and with direct references to consequences–a veto–about the detainee provisions of the NDAA. The White House’s Statement of Administration Policy on the Senate version of the DNA has none of the problems of its earlier statement about the House version of the bill. It distinguishes between big problems and little problems. It distinguishes between forests and trees. And it makes clear that the President will not take provisions like this lying down:

    Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qa’ida and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.

    Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.

    Yesterday morning, before the statement came out, I told Adam Serwer of Mother Jones that if Obama could not convince Congress that he is prepared to use the NDAA as toilet paper, he would have no negotiating leverage and would have to live with genuinely destructive detainee affairs legislation. This statement–assuming it’s not a bluff–is a big step towards convincing the legislature that the presidency actually matters in discussions of detention policy.

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    “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” —Benjamin Franklin

    They are perhaps the most famous words ever written about the relationship between liberty and security. They have become iconic. A version of them appears on a plaque in the Statue of Liberty. Every student of American history knows them. And every lover of liberty has pondered them, knowing that they speak to that great truth about the constitution of civilized governments: that we empower government to protect us in a devil’s bargain from which we will lose in the long run.

    Very few people who quote these words, however, have any idea where they come from or what Franklin was really saying when he wrote them.

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    (photo credit: Andrew Malone)

    Speaking of the oddly-named Bmaz–which I was briefly yesterday–he has flagged an incredible snippet of aPolitico interview with White House chief of staff Bill Daley on the subject of leaks. For those readers who thought Jack and I (here and here and here and here and elsewhere) were overstating or misstating the matter when we talked about the toleration of leaks as a matter of official or near-official policy, this discussion seems to me rather clarifying:

    As I’ve noted previously, there has been a hue and cry against the critical and untenable use, and abuse, of secrecy by the United States government. There has always been some abuse of the government’s classified evidence for political gain by various administrations operating the Executive Branch, but the antics of the Obama administration have taken the disingenuous ploy to a new art form.

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    Over at the Volokh Conspiracy, Kenneth Anderson writes of my post yesterday, “What should most concern the Times are the couple of emails I’ve received from several eminent professors, smart and intellectually scrupulous folks whose opinion I value a lot, deeply committed progressives, who have asked that I urge Wittes to greater restraint, because it’s unsporting to shoot fish in a barrel.”

    Ken here is making an important point about the disdain for the Times implicit in his correspondents’ request. It should be of great concern to the Times that distinguished progressives consider it too soft a target to be worth my time.

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    I awoke this morning to a genuine marvel: An actual real-live correction to a New York Times editorial on a national security issue. It reads as follows:

    This article has been revised to reflect the following correction:

    Correction: October 22, 2011

    An earlier version of this editorial misattributed the authors of the Senate measure. It represents a deal between Senator Carl Levin and Senator John McCain, not Senator Levin alone.

    The editorial, as you may have guessed from the correction, deals with the detainee provisions of the Senate NDAA. And the Times is, while late to the party, no happier about the provisions than I am. Indeed, breathless, sky-is-falling tone aside, I’m largely in agreement with the editorial–some of which even tracks arguments that first appeared in public in posts of mine on this site.

    But this laudable and sudden scrupulousness about getting facts right holds real danger for the Times editorial writers. I mean, where does it all stop? If the Times feels obliged to correct its error about the authorship of the NDAA provisions, what about the several other errors in the same editorial–some of which, at least, are glaring and not subject to dispute among reasonable people?

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    I had been waiting for the video of Pentagon General Counsel Jeh Johnson’s speech at the Heritage Foundation to be released to post thoughts it. But I awoke this morning to press coverage of the speech that seemed pretty consistently to miss a component of Johnson’s remarks that is, in my view, real news: Johnson took a much more measured approach than has the administration at large towards the idea of updating the AUMF.

    Johnson’s comments on the subject came in response to the first question he was asked. Heritage’s Cully Stimson–who hosted the event and, by the way, deserves a lot of credit for the non-partisan seriousness he is showing on these issues–noted that while Johnson had criticized the detainee affairs provisions of the pending NDAA bills in the speech, not all of the provisions were that bad. Cully asked what Johnson thought of House Armed Services Chairman Buck McKeon’s proposal to reaffirm the AUMF.

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    The first thing to say about today’s long-belated New York Times editorial on the Al-Aulaqi killing–and the memo justifying it–is that it is not a ridiculous document, and I’m not going to ridicule it. It does not flamboyantly contradict the paper’s past statements. It does not willfully misstate the law. It does not pervasively confuse the Times‘s contemporary policy views with the Constitution (though it doesn’t entirely separate the two either). To put the matter simply, it would not beat Jacob Sternberger’s entry in my little competition to parody New York Times editorials on national security law.

    So let’s take it seriously, and go through it idea-by-idea as a statement of conventional liberal opinion.

    The editorial begins with measured praise for the reported OLC memo justifying a hypothetical Al-Aulaqi strike, calling it “a detailed and cautious memorandum,” and a “refreshing change from the reckless legal thinking of the Bush administration, which rationalized torture, claimed unlimited presidential powers and drove the country’s fight against terrorists off the rails.”

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    The Washington Post leads this morning with a story headlined “Secret U.S. Memo Sanctioned Killing of Aulaqi,” which opens:

    The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials.

    The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.

    While there was no dissent within the administration, however, critics of the operation decry its lack of due process. And, meanwhile, asenior administration lawyer with whom I corresponded yesterday suggests that the operation is legal on the same grounds that it was legal to target Admiral Yamamoto during World War II or would have been lawful to target a U.S. national who had joined up with the German army. The implication here is that the U.S. national is no different from the foreign national once he has signed up with the enemy.

    All of this raises the question of what precisely due process requires with respect to the targeting of a U.S. national fighting on the other side of this conflict. Bobby, Jack, and I all addressed this question yesterday, mostly by negative inference; by saying why the strike did not violate due process, that is, we hinted at some due process standards. But I think it’s worth laying out in more detail exactly what–at least in my opinion–the Due Process Clause really requires here. So here is my best guess at what that secret memo probably said–or at least, my view of what it should have said.

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    Raffaela linked earlier today to the Weekly Standard article in which the new military commissions chief prosecutor, Brig. General Mark Martins, announced some important new steps towards transparency in commission trials. The point appears in passing in what is really more of profile of Martins, and it reads as though the magazine did not quite understand that Martins was actually breaking news when he disclosed that:

    Military commissions will feature new measures to ensure transparency, including a venue enabling victims and media to observe proceedings near-real-time in the continental United States (40-second delay to ensure safeguarding of national security information) (emphasis added).

    Carol Rosenberg of the Miami Herald did understand that this was something of a big deal. She writes:

    If implemented, the new system would be vastly different from the one that has been in place for previous Guantánamo proceedings. In those cases, reporters and other spectators were required to fly to Guantánamo on specially arranged Pentagon flights. While there, reporters faced strict limitations on where they could go and what they could report, and the limitations and expense helped cut the number of news organizations covering events there.

    And for readers of this blog, I think, it’s a particularly big deal–one that will meaningfully enhance the content stream we deliver.

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