The authors span a considerable swath of the political spectrum, but they all believe that Congress has a significant role to play in shaping the contours of America's confrontation with terrorism. Their essays are organized around the major tools that the United States has deployed against al Qaeda as well as the legal problems that have arisen as a result.
• Mark Gitenstein compares U.S. and foreign legal standards for detention, interrogation, and surveillance. • Matthew Waxman studies possible strategic purposes for detaining people without charging them, while Jack Goldsmith imagines a system of judicially reviewed law-of-war detention.
• Robert Chesney suggests ways to refine U.S. criminal law into a more powerful instrument against terrorism. • Robert Litt and Wells C. Bennett suggest the creation of a specialized bar of defense lawyers for trying accused terrorists in criminal courts.
• David Martin explores the relationship between immigration law and counterterrorism.
• David Kris lays out his proposals for modernizing the Foreign Intelligence Surveillance Act.
• Justin Florence and Matthew Gerke outline possible reforms of civil justice procedures in national security litigation.
• Benjamin Wittes and Stuart Taylor Jr. investigate ways to improve interrogation laws while clarifying the definition and limits of torture.
• Kenneth Anderson argues for the protection of targeted killing as a counterterrorism tool.
How should Congress authorize, regulate, and limit counterterrorism tools, and under what circumstances should it permit and encourage their use? The authors of this book share a commitment to pushing a reluctant Congress to play a more active role than it has to date in writing the rules of the road.
Benjamin Wittes is a senior 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, 2008). He is also a member of the Hoover Institution's Task Force on National Security and Law.
Wittes offers a subtle and deeply considered portrait of a decent man who fundamentally misconstrued his function under the independent counsel law. Starr took his task to be ferreting out and reporting the truth about official misconduct, a well-intentioned but nevertheless misguided distortion of the law, Wittes argues. At key moments throughout Starr's probe -- from the decision to reinvestigate the death of Vincent Foster, Jr., to the repeated prosecutions of Susan McDougal and Webster Hubbell to the failure to secure Monica Lewinsky's testimony quickly -- the prosecutor avoided the most sensible prosecutorial course, fearing that it would compromise the larger search for truth. This approach not only delayed investigations enormously, but it gave Starr the appearance of partisan zealotry and an almost maniacal determination to prosecute the president. With insight and originality, Wittes provides in this account of Starr's term a fascinating reinterpretation of the man, his performance, and the controversial events thatsurrounded the impeachment of President Clinton.
Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices, and greater citizen awareness of the same. In Detention and Denial, he illustrates how U.S. detention policy is a tangle of obfuscation rather than a serious set of moral and legal decisions. Far from sharpening focus and defining clear parameters for action, it sends mixed signals, muddies the legal and military waters, and produces perverse incentives. Its random operation makes a mockery of the human rights concerns that prompted the limited amount of legal scrutiny that detention has received to date. The government may actually be painting itself into a corner, leaving itself unable to explain or justify actions it may need to take in the future. The situation is unsustainable and must be addressed.
Preventive detention is a touchy subject, an easy target for eager-to-please candidates and indignant media, so public officials remain largely mum on the issue. Many Americans would be surprised to learn that no broad principle in American jurisprudence actually prohibits preventive detention; rather, the law "eschews it except when legislatures and courts deem it necessary to prevent grave public harm." But the habeas corpus legal cases that have come out of the Guantánamo Bay detentionfacility—which remains open, despite popular expectations to the contrary—have addressed only a small slice of the overall issue and have not—and will not—produce a coherent body of policy.
U.S. government and security forces need clear and consistent application of their detention policies, and Americans must be better informed about them. To that end, Wittes critiques America's current muddled detention policies and sets forth a detention policy based on candor. It would set clear rules and distinguish several types of detention, based on characteristics of the detainees themselves rather than where they were captured. Congress would follow steps to "devise a coherent policy to regulate the U.S. system of detention, a system that the country cannot avoid developing."
As a child in small-town Oklahoma, Elizabeth Warren yearned to go to college and then become an elementary school teacher—an ambitious goal, given her family's modest means. Early marriage and motherhood seemed to put even that dream out of reach, but fifteen years later she was a distinguished law professor with a deep understanding of why people go bankrupt. Then came the phone call that changed her life: could she come to Washington DC to help advise Congress on rewriting the bankruptcy laws?
Thus began an impolite education into the bare-knuckled, often dysfunctional ways of Washington. She fought for better bankruptcy laws for ten years and lost. She tried to hold the federal government accountable during the financial crisis but became a target of the big banks. She came up with the idea for a new agency designed to protect consumers from predatory bankers and was denied the opportunity to run it. Finally, at age 62, she decided to run for elective office and won the most competitive—and watched—Senate race in the country.
In this passionate, funny, rabble-rousing book, Warren shows why she has chosen to fight tooth and nail for the middle class—and why she has become a hero to all those who believe that America's government can and must do better for working families.