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.

 

We all know the story: A liberal government finds itself embarrassed by intelligence collection activities. So it appoints a senior panel of Wise Men to recommend reforms. The Wise Men rein in the intelligence community, proscribing a series of practices that had once been the bread and butter of collection. The intelligence community feels betrayed, micromanaged, and unvalued.

Sound familiar? It should. It’s the beginning of John LeCarre’s famous book, Smiley’s People.

The context in the book is a bit different from our current controversies over the president’s Review Group, the NSA, and bulk metadata collection. LeCarre’s story is about British intelligence officers, not American. Its background is the Cold War confrontation with the Soviets. And the controversies in it involve human intelligence collection, not technical collection.

Yet for me anyway, Chapter 4 of Smiley’s People is a kind of urtext of our current situation — a piece of fiction that captures nearly all of the forces now operating in the NSA debates with an economy of words nothing else I have read compares with. In the key exchange, Oliver Lacon, a political overseer of the service, explains to George Smiley, who has been plucked from retirement in the middle of the night after a former agent is murdered: “[Y]our successor [as head of the agency] decided on certain far-reaching changes of intelligence practice.” Lacon expounds at some length. The following excerpts offer a flavor:

“One of the less controversial exercises of the Wise Men, George — one of their first duties — conferred upon them specifically by our masters — enshrined in a jointly drafted charter — was stock-taking. To review the [agency’s] resources worldwide and set them beside legitimate present-day targets.”

. . .

Lacon hesitated a moment longer, then continued: “Now as a result of this axe-laying — this stock-taking, if you prefer — on the part of the Wise Men, certain categories of clandestine operation have been ruled ipso facto out of bounds. Verboten. Right?”

Prone on his sofa, Strickland incanted the unsayable: “No coat-trailing. No honey-traps. No doubles. No stimulated defections. No émigrés. No bugger all.”

After listening to a bit more, particularly about how the émigré groups — one of which his dead former agent previously headed — had been “dustbinned,” Smiley finally responds: “What utter nonsense.”

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The Guantanamo Misfire

 

Closing Guantanamo is not now and never has been an urgent matter. President Obama was wrong to make a fetish out of this particular detention facility in 2008 — as was his opponent, John McCain. Obama was wrong to stake any part of his presidency on its closure in the first days of his presidency. And he is wrong now to pretend that Guantanamo’s closure would effect any profound change in detention policy.

What is an urgent matter and has been since the dawn of Obama’s presidency is the rationalization of U.S. detention policy. This project overlaps in significant respects with the project of closing Guantanamo. But it is not the same project, and the administration’s confusion of the two has significantly impaired the rationalization project in the name of what amounts to a bumper sticker.

It is important to understand what closing Guantanamo means in the Obama political lexicon. It does not mean ending law of war–based detention. The Obama administration means to continue holding — at a minimum — nearly 50 detainees until the termination of hostilities with al Qaeda and the Taliban. (The actual number is almost certainly higher than that.) Even in the president’s recent speech, in which he promised the end of the war, he didn’t specify a time frame for that. The military will either hold detainees at Guantanamo, or it will hold them somewhere else. So what is at stake with Guantanamo’s closure is not the substance of detention policy, merely its venue.

Indeed, the insistence on closing Guantanamo — and the consequent refusal to bring new detainees there — actually creates an important problem: Where to hold newly captured detainees and where to put certain detainees currently held in Afghanistan as the United States disengages from combat operations in that country.

On the other hand, several of the key steps the Obama administration has taken — and wishes to take — in support of its Guantanamo closure policy constitute important elements of any effort to rationalize U.S. detention policy. And conversely, the steps that Congress has taken to frustrate the Guantanamo closure are profoundly disruptive to that effort.

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Imagine a world in which you can attack anyone—anywhere—and in which anyone, anywhere, can attack you. Imagine a world in which you might pose a strategic threat to an established government, and in which governments might require your assistance to provide basic security goods to their citizens. Imagine a world in which the basic premise of Hobbes—that empowered government can protect you—were no longer clearly true, a world in which even radically-empowered government proved hapless before more numerous empowered citizens . . . citizens like you.

This is the world the march of technology is quickly building. And we have no idea how to govern it. Even just beginning the daunting process of grappling with this governance problem constitutes a major challenge for the Obama administration in its second term.

The emergence of what I call the world of many-to-many threats and many-to-many defenses is already starkly visible in cyberspace—with its strange mélange of international crime, vigilantism, government enforcement, espionage, and sabotage. But it is a grave, if common, mistake to think about the problem narrowly as one of cybersecurity. Cyberspace, after all, is merely the platform on which the many-to-many threat and defense environment has developed the furthest to date. So when dealing with networked computers, we are shocked—but not too shocked—that Anonymous can take on major corporations. And we are shocked—but not too shocked—that Wikileaks can take on the US government. And we are shocked—but apparently not too shocked, since the case only merits in-passing news coverage—that a fellow in California can write malware to turn the web cameras of hundreds of women and girls on them, take compromising pictures of them, and then use those images to extort them into making pornographic videos for him.[1]

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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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