Legislating the War on Terror: An Agenda for Reform

Brookings Institution Press
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The events of September 11 and subsequent American actions irrevocably changed the political, military, and legal landscapes of U.S. national security. Predictably, many of the changes were controversial, and abuses were revealed. The United States needs a legal framework that reflects these new realities. Legislating the War on Terror presents an agenda for reforming the statutory law governing this new battle, balancing the need for security, the rule of law, and the constitutional rights that protect American freedom.

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.

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About the author

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.

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Additional Information

Publisher
Brookings Institution Press
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Published on
Feb 1, 2010
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Pages
420
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ISBN
9780815704171
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Language
English
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Genres
Political Science / American Government / Legislative Branch
Political Science / General
Political Science / Political Freedom
Political Science / Terrorism
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Content Protection
This content is DRM protected.
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How is Kenneth Starr's extraordinary term as independent counsel to be understood? Was he a partisan warrior out to get the Clintons, or a savior of the Republic? An unstoppable menace, an unethical lawyer, or a sex-obsessed Puritan striving to enforce a right-wing social morality? This book is the first serious, impartial effort to evaluate and critique Starr's tenure as independent counsel. Relying on lengthy, revealing interviews with Starr and many other players in Clintonera Washington, Washington Post journalist Benjamin Wittes arrives at a new understanding of Starr and the part he played in one of American history's most enthralling public sagas.

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.

A brilliant, authoritative, and fascinating history of America’s most puzzling era, the years 1920 to 1933, when the U.S. Constitution was amended to restrict one of America’s favorite pastimes: drinking alcoholic beverages.

From its start, America has been awash in drink. The sailing vessel that brought John Winthrop to the shores of the New World in 1630 carried more beer than water. By the 1820s, liquor flowed so plentifully it was cheaper than tea. That Americans would ever agree to relinquish their booze was as improbable as it was astonishing.

Yet we did, and Last Call is Daniel Okrent’s dazzling explanation of why we did it, what life under Prohibition was like, and how such an unprecedented degree of government interference in the private lives of Americans changed the country forever.

Writing with both wit and historical acuity, Okrent reveals how Prohibition marked a confluence of diverse forces: the growing political power of the women’s suffrage movement, which allied itself with the antiliquor campaign; the fear of small-town, native-stock Protestants that they were losing control of their country to the immigrants of the large cities; the anti-German sentiment stoked by World War I; and a variety of other unlikely factors, ranging from the rise of the automobile to the advent of the income tax.

Through it all, Americans kept drinking, going to remarkably creative lengths to smuggle, sell, conceal, and convivially (and sometimes fatally) imbibe their favorite intoxicants. Last Call is peopled with vivid characters of an astonishing variety: Susan B. Anthony and Billy Sunday, William Jennings Bryan and bootlegger Sam Bronfman, Pierre S. du Pont and H. L. Mencken, Meyer Lansky and the incredible—if long-forgotten—federal official Mabel Walker Willebrandt, who throughout the twenties was the most powerful woman in the country. (Perhaps most surprising of all is Okrent’s account of Joseph P. Kennedy’s legendary, and long-misunderstood, role in the liquor business.)

It’s a book rich with stories from nearly all parts of the country. Okrent’s narrative runs through smoky Manhattan speakeasies, where relations between the sexes were changed forever; California vineyards busily producing “sacramental” wine; New England fishing communities that gave up fishing for the more lucrative rum-running business; and in Washington, the halls of Congress itself, where politicians who had voted for Prohibition drank openly and without apology.

Last Call is capacious, meticulous, and thrillingly told. It stands as the most complete history of Prohibition ever written and confirms Daniel Okrent’s rank as a major American writer.
"Our current stalemate over detention serves nobody—not the military or any other component of the U.S. government that has to operate overseas.... It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that produced a clear victory for nobody."—from the Introduction

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."

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