Book Ponders How To End Detainees' Legal Limbo

Co-host Ari Shapiro talks with Benjamin Wittes, author of Law and the Long War: The Future of Justice in the Age of Terror. Among the issues they discuss are the right to due process of enemy combatants — and what Wittes sees as a way forward, beyond Guantanamo.

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ARI SHAPIRO, host:

The Supreme Court recently decided that detainees at Guantanamo will have access to civilian courts. Still, the justices have not been specific about exactly what should happen to the detainees in the long run.

Mr. BENJAMIN WITTES (Author, "Law and the Long War"; Fellow, Brookings Institution): What they have done instead is at every stage, they've said, nope. You can't do this. They hadn't said what you can do. No, you can't do this. Maybe if you did this, it's okay. Actually, no.

SHAPIRO: Benjamin Wittes proposes some answers for getting the prisoners out of legal limbo and defining detainee protocol in his new book, "Law and the Long War." Wittes is a fellow at the Brookings Institution, and he used to be an editorial writer for the Washington Post. Thanks for coming in.

Mr. WITTES: Thanks for having me.

SHAPIRO: Well, let me pose a hypothetical that you mention in the book: What happens if we catch Osama bin Laden tomorrow? How do we deal with him legally?

Mr. WITTES: Well, I think the answer to that question is that we have no agreed-upon answer to that question. Now, I think with bin Laden himself, you know, the idea that you could probably muster an indictment in whatever forum you wanted to try him in - whether it were a military commission or U.S. federal court - it's almost certainly very doable.

But if you imagine sort of one or two levels below that, we don't really know on what authority we're holding people, what the role of the courts will be precisely in reviewing them. We don't know how long we're going to be holding them for, and we don't know what forum we're going to put them on trial in if, in fact, we put them on trial at all.

SHAPIRO: Well, whose fault is it that all these years after 9/11 we still don't have an agreed-upon answer to those questions?

Mr. WITTES: First of all, the administration has to take a huge percentage of the blame. They tried to do so much on the power of the executive alone and didn't kind of try to involve Congress in the sort of key design questions of the system they were building. And the absentee player in it has been that body of the United States' government that the Constitution created in order to make new laws for new circumstances.

SHAPIRO: Right. You quote one of your colleagues in the book as saying the Constitution is old and short. And so the answers to this new set of problems are not going to be found in the Constitution. It needs to be a new set of laws crafted by Congress. Describe what those laws would look like.

Mr. WITTES: In a military conflict in which, you know, Congress has authorized the use of force against an enemy that has declared war against the United States, the nature of that conflict necessitates some kind of a detention authority. That is a detention power that is not connected to necessarily a pending indictment in U.S. federal court.

SHAPIRO: And so when you saw a detention authority, you mean conceivably for that person's lifetime.

Mr. WITTES: You know, one would hope that it would never have to go on that long. But, you know, there are a certain group of people that you're going to be holding for a very long time.

SHAPIRO: If, as you proposed, Congress creates a system of military commissions or national security courts that can try these terrorism detainees, human rights groups say that just opens the door to harsh interrogations and secret evidence in things that the U.S. really doesn't and shouldn't condone.

Mr. WITTES: Let me say that I have a lot of sympathy with a lot of human rights groups' complaints, but the baseline that we're operating against is not a rule in which everybody gets charged, you know, or set free. The realistic alternative is the system we currently we have, which is a system in which under a very low legal threshold - that is largely the executive branch's own words - we lock people up with essentially no rules.

And so, you know, I'm a little bit bewildered by the idea that a project like the one that I and others have suggested, you know, of defining the rules and defining the process in which we detain people is retrogressive with respect to the rights of people we're holding.

SHAPIRO: Well, how do you solve these most difficult problems? At the end of the day, what is the system for holding people and processing them in a way that Americans can respect but that still keeps the country safe?

Mr. WITTES: Right. There's a few good guideposts you can use. The first is that when the government wants to detain somebody - just as, you know, with a, you know, violently mentally ill person - if the government wants to detain somebody, it should have to walk into court and establish in a serious processing - which the detainee gets, you know, of a real lawyer who gets access to all the evidence. The government is sort of put through it's paces -it should have to establish that the person is an affiliate member, you know, whatever word you want to use, of an organization with whom we are in a state of armed conflict and that he is in some individual capacity very dangerous.

Secondly, that court that authorizes that detention needs to retain jurisdiction over that detention for as long as it persists. And the government needs to have to come back, you know, on a periodic basis and argue for continued detention.

SHAPIRO: What's the likelihood that this will actually happen?

Mr. WITTES: I'm actually quite optimistic. You know, whether the next president is Barack Obama or John McCain, he is most unlikely to want to spend the eight years of his presidency as George W. Bush did, you know, in a state of endless uncertainty and litigation over every single component of the legal structure of the war on terrorism.

So I think whether the next president is Barack Obama or John McCain, they're going to have a moment early in their presidency where they're going to make the judgment they want as broad a political coalition behind the tough actions they're going to need to take as possible.

And once you decide that, you have only one choice, and that is to go to Congress and get as much written into law as possible. And if you had a sort of systematic across-the-board legislative conversation about these issues, there are a lot of things that you could do that would put the executive on much firmer ground. And I think that's going to be very attractive to the next president of either party.

SHAPIRO: Benjamin Wittes is author of "Law and the Long War: The Future of Justice in the Age of Terror." Thanks a lot.

Mr. WITTES: Thank you.

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The Future of Justice in the Age of Terror

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