a citizen’s journal by Thomas Nephew

Law and the Long War: the Hoess Opening

Posted by Thomas Nephew on September 23rd, 2009

“The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again.  At one point the previous year, they had actually arrested him but, not realizing who he was, had let him go.  Unable to track him down now, they managed instead to locate and detain his wife…”

Thus begins the introduction to “Law and the Long War,” Benjamin Wittes’ book length polemic for new laws in new times.  The story continues with the wife being told her sons would be flown to their likely deaths in a hostile country unless she gives up her husband, which she does.  Wittes uses the case to introduce his theme:

“In the years since September 11, 2001, a gulf has opened up between the views of elites, mostly but far from exclusively liberals, and majority opinion on such questions of presidential power as detention, surveillance, interrogation, and trial of suspected terrorists. … Public opinion has tended to regard these issues pragmatically — tolerating tough measures and contemplating with relative equanimity the deprivation of certain rights to terrorist suspects that are nonnegotiable in a civilian context…”

Not so the “academy, the press, and the human rights world,” beguiled by moral absolutes and transfixed by the fear of executive power.  They’re out of luck now, though, because Wittes is about to spring his trap:

But let me now confess that I have adjusted somewhat the facts of my opening anecdote… The plane was really a train; the country was Germany; the soldiers were British, not American; the year was 1946. And the high-value detainee was no Al Qaeda figure, not even a figure who posed a great prospective danger, but one of the great mass murderers of all time: Rudolf Hoess, the commandant of Auschwitz.  […]

If the tactic — and the absence of any judicial review of its use — does not suddenly seem more defensible … [then my] purpose in this book is to shake somewhat the certainty of your nonconsequentialism and, in particular, your faith in judges as the essential check on such executive behavior.  I share neither your certainty nor your faith and can only thank God that neither did the British soldiers who captured Rudolf Hoess.

Now I certainly stipulate that Rudolf Hoess was a very, very, very bad and odious man who deserved to be arrested, tried, and punished.  But I still wonder if this isn’t a very odd opening anecdote for Wittes to choose.

For, as Wittes even acknowledges, Hoess was “not even a figure who posed a great prospective danger.” The war was over, the Holocaust was over; little remained to be prevented.  This might not seem a great difficulty – the sheer scale of Hoess’s crimes demanded that justice be done and punishment meted out.  But it is — even for Wittes; in fact, especially for him.

That’s because one of Wittes’ chief assertions in the introduction (and throughout the rest of the book) is that in wartime “legal rules are inevitably less absolute, less truly legal, in this context than, for example, in the domestic civilian context” — and that “[d]iscerning the reason requires no great imagination: The stakes are too high for anything else. […] … even the worst individual crimes represent manageable horrors from a societywide point of view.  Terrorism, by contrast, involves horrors on an altogether different scale.  And international conflict at its core is about avoiding harms — particularly catastrophic harms — prospectively, not retroactively accounting for them.” (p. 9-10)

Yet “avoiding harms prospectively” is precisely not what Wittes’ Hoess example was about; again, the harm was done, the war was over.  And this not just a debating point: while Wittes advocates what he calls “preemptive” policy explicitly premised on avoiding prospective catastrophic harm, his very first example widens his approval to other “preemptions” of the law — even as he ignores the obvious retort that Hoess might well have been caught by more acceptable means the next day or the day after that.  (Indeed, he might have been caught the day before; as Wittes relates, Hoess had already been arrested once but wasn’t recognized for who he was.)

This, in turn, leads to a partial response to Wittes’ other concern: what he sees as the legislative branch’s abdication of its responsibilities, a political vacuum then filled by the judicial branch’s overweening, misguided efforts to adjudicate issues that are properly none of its business.  To be sure, Wittes frames this in what becomes his familiar “neither/nor,” balancing style: by themselves, “[n]either unilateral rule making on the part of the president nor judicial review of whatever rules he makes up can mold a stable long-term architecture for a war that defies all of the usual norms of war.”

Yet imagine that some legal program were enacted entirely with a view to meeting Wittes’ stated concerns, i.e., resulting in laws granting the President powers to prospectively avoid defined harms in defined and legal ways.  We would nevertheless sometimes be faced with hard legal questions — and given the problems mentioned above, his Hoess case might be one of them.  So the courts would still be called on to interpret the law.

The point is simply that there will always be “chalk lines” — sometimes vague ones, sometimes not — separating the legal playing field from a world deemed out of bounds by a country’s constitution, traditions, and legislative judgment. And deciding when to signal “out of bounds” will always be the judicial branch’s job — whether or not the laws in place at any given moment have Wittes’ seal of approval.

My comments so far have been somewhat critical; I’ll end more favorably, in that I agree very much with Wittes that Congress has all too often been missing in action in the debates around habeas corpus, surveillance, and other civil liberties during this “long war.”  I suspect I’ll disagree in part about why, and about what it should do once (or if) it more vigorously joins that debate.  But I agree that clarifications of executive powers are sorely needed, and Wittes’ book does a service in motivating that need, and ably presenting at least one side of a complex debate.

NOTE: This is part of a series on “Law and the Long War,” in collaboration with “The Talking Dog.” — PRIORHOME – NEXT .
UPDATE, 9/23: Talking Dog‘s post about the introduction.

10 Responses to “Law and the Long War: the Hoess Opening”

  1. Abu Noor Al-Irlandee Says:

    First, let me say that I was pointed to this discussion from your post at TalkIslam. I have not read the book, but I have now ordered it from Amazon. I did see Mr. Wittes on Blogging Heads last year with Dahlia Lithwick. I don’t suspect I’ll be much in agreement with him but I do agree that this is an important discussion and he, as far as I can tell, represents an important perspective in this discussion.

    I agree completely that this opening anecdote is extremely problematic. For the reasons you stated, it is not really helpful to a serious analysis of the issues involved. I think it instead represents an unfortunate reality of the discussion in the popular realm, which is that discussion in that realm is not characterized by serious intellectual argument, but more so by cheap emotional tactics and sound bites designed to give false rationales for policies carried out for other reasons (reasons which I don’t claim to really understand and which I go back and forth as to whether they are well thought out or haphazard and based on inertia). In this emotion centered debate, there is obviously no better way to start than with a Nazi analogy.

    And not just a suspected Nazi, but a well known Nazi about whom there is no question of guilt.

    The most vital part of this public discourse by defenders of Bush (and now Obama) tactics is to remove any possible chance of human identification with the detainees. This is done by first making it clear that the people we are looking for are subhuman and in no way “like us” and second, by assuming at all times that everyone who is captured, detained, tortured, assassinated, threatened, kidnapped, etc. etc. is guilty and is the subhuman enemy. This assumption must be so absolute that to require any proof of this is a sign that one does not “get it.” To notice the fact that in an undeniably large percentage of cases, people did not turn out to be who the government claimed they were is unacceptable.

    Again, these are things well known in elite, academic, left wing, or civil liberties circles but unacknowledged in the public debate. This is so much the case that even when people from the “elite” circles want to enter the public debate, they will sometimes not even challenge the assumptions themselves, but will attempt to make other arguments (torture is demeaning to us, our policies actually make us less safe because Muslims don’t want to cooperate with us or Muslims became more extreme in reaction). My point is not that these are not valid arguments, but I sometimes am alarmed by the way in which these arguments can be seen as tacit admissions of the underlying assumptions I mentioned earlier. (that the people being tortured or kidnapped are evil subhumans and that they are all guilty).

    Like you, I will close with more positive comments. I also agree that congress’ action around these issues has been appalling, perhaps more appalling than that of the Bush Administration. But I don’t put as much weight on this because I don’t doubt that if they had been forced to weigh in they would have simply endorsed the executive’s actions in all cases, perhaps with cosmetic,non-substantive changes. The extent to which even the Obama Administration in power is basically adopting this approach is truly enraging and disturbing. (see Guantanamo, Bagram, Rendition, etc.)

    Finally, as someone who has given sermons for several years now, I understand that in the habit of trying to start one’s piece with an “arresting anecdote” the purpose is to grab the reader’s attention with something that hopefully exemplifies your broad thesis. My experience has been that having the opening anecdote be truly interesting and attention-grabbing becomes more important than whether it truly exemplifies one’s thesis and it is not unusual to try to stretch a bit to use anecdotes that relate to one’s topic but don’t necessarily hold up as exemplifying one’s thesis when examined more closely.

  2. Thomas Nephew Says:

    You’re right, the Hoess excerpt does lend itself to a charge of hyperbole as well — Wittes comes perilously close to deserving a “Godwin’s Law” demerit (although like Godwin, I generally support raising the Nazi analogy if the shoe fits).

    However, while I may not have been sensitive enough to it, I don’t think Wittes shares or promulgates a “subhuman” view of (Muslim) detainees in general, or even of the known criminals of Al Qaeda; he doesn’t sound unhinged in that way to me. He simply says there really are dangerous people who seek to commit mass murder, and some of them are locked up in Gitmo. True, he may overestimate the danger some people pose; that may amount to the same thing for some readers, but it feels different to me.

    Wittes’ exhibit “B” in the introduction, one Ghassan Abdallah Ghazi Al Shirbi, may be the kind of dangerous person Wittes says he is — he (allegedly) trained in explosives, and (definitely) took pride in his enmity to the US during a combatant status review tribunal hearing. Thing is, the explosives training (=conspiracy to commit murder?) would seem to be stuff one could try him for, yet that hasn’t happened — perhaps that “fact” was waterboarded out of KSM, perhaps there’s some other reason. Wittes just blames it on the Supreme Court for bollixing up the original military commission system.

    You’ve probably hit the nail on the head with the “arresting anecdote” observation, and the analogy to a sermon may be very apt indeed. So maybe I’ve made too much of the “Hoess opening,” but it seems illustrative in a way Wittes didn’t intend. It seems to me much of law proceeds by analogy — “this situation is kind of like this one, a little like that one, not at all like that one, so we can apply this law, that law, but not that law” and so forth. By stretching for an example he showed how a future Benjamin Wittes — let alone a future John Yoo — would be able to stretch for a way to turn the powers Wittes “grants” in Gitmo into powers to do yet more elsewhere.

  3. the talking dog Says:

    You’ve probably hit the nail on the head with the “arresting anecdote” observation, and the analogy to a sermon may be very apt indeed. So maybe I’ve made too much of the “Hoess opening,” but it seems illustrative in a way Wittes didn’t intend. It seems to me much of law proceeds by analogy — “this situation is kind of like this one, a little like that one, not at all like that one, so we can apply this law, that law, but not that law” and so forth. By stretching for an example he showed how a future Benjamin Wittes — let alone a future John Yoo — would be able to stretch for a way to turn the powers Wittes “grants” in Gitmo into powers to do yet more elsewhere.

    That’s exactly right; rather than say the law is expressly about “analogy,” one would say it’s about “authority,” but if “authority” is not precisely “on point,” one does indeed argue that the facts at hand are “a close fit” or at least “analogous” to “the authority.” So in the sense that what Mr. Wittes is giving us is his “legislative history” (assuming some future member of Congress reads his book into the Congressional record, for example), some future civilian or military court can well take it the next level and say, “waterboarding suspect’s children for his location… intended as o.k. by Congress… check.”

    Generally, one’s opening and first chapter or two are “the sizzle” one offers to prospective publishers to get them to think the book is compelling. That said, a flashy Nazi analogy may well get their attention; the problem is, it gets all of our attention, and takes it in a different direction– not off on a tangent, but asking very real questions about the seriousness of the rest of what we are going to read, which on this subject is quite serious indeed, and not somewhere we’d like to see hijacked in this manner.

    And Thomas’s al-Shirbi point is an excellent one: the man hasn’t stood trial, and indeed, only three highly suspect military commission cases have even gone to “trial”, Hicks’ plea and Hamdan’s “conviction,” both followed by sentences of around nine months, and al-Bahlul’s life sentence, but only after he stood mute at trial refusing to participate even in his own defense. So while the accusations against al-Shirbi may be troubling, why has Mr. Wittes already decided he is guilty of everything he is accused of? (Indeed, even “confessions” at GTMO cannot be accepted at face value given the now undisputable history of torture, whether at GTMO itself, Bagram, by the CIA or Northern Alliance or wherever.) Again, an emotional hijacking that may have done wonders to sell the book to a publisher, but falls flat in trying to sell the argument.

    Great observations in a great post, and great comment by Abu Noor.

  4. Charles Carpenter Says:

    Not all explosives training is conspiracy to commit murder. When I worked as a surveyor for the Forest Service 30 years ago, we had a brief course in safe handling of the minor but dangerous materials we might come in contact with (but not use in surveying). I don’t know what al-Shirbi’s training consisted of, but I think the jump to the most extreme conclusion from the bare allegation presented in an unclassified CSRT transcript is not prudent.

    (I have had some exposure with regard to the training at at least one Al Qaeda camp, and, based on what I know, my example is not intended to be frivolous).

    I doubt that the source of this allegation is KSM, or anyone who was waterboarded. The odds are better than fair that it came from al-Shirbi himself — or that he admitted attending a basic training course, and testimony from a different prisoner about the content of that course is the basis for the specific allegation. The jump from ‘no prosecution’ to ‘must be consequences of torture’ is also imprudent. More likely, it might have been obvious to prosecutors that basic training of this type isn’t actually a crime. Or at least not one that merits the time and expense of a trial, especially with Saudi diplomats calling for the return of their citizens, and the need to keep the Saudis on the reservation with respect to Iraq, Iran, oil, etc.

  5. Bill Day Says:

    Since I am writing at a late hour after finishing the first chapter, I have only a couple of scraps to offer in addition to the excellent analysis above:

    1) I agree that the lack of imminent danger in the Hoess anecdote makes it irrelevant to the “ticking time bomb” scenario.

    2) It is well recognized that sometimes people have to break the law and take the consequences. In the extremely unlikely event of a true “ticking time bomb” scenario, one would expect the President, or his officials, to break the law and take the consequences if necessary. Moreover, no Congress would impeach, and there is a reason for the pardon power.

    3) So far, at least, Wittes has not addressed the widely held expert conclusion that torture is not an effective means of intelligence gathering. There doesn’t seem to be any point to the savage beating Hoess endured other than revenge. I don’t feel any sympathy for Hoess, but I have a problem with summary justice under almost any circumstances. Also, what if they had nabbed and savagely beaten the wrong guy? Finally, what is the relevance of the fact that Hoess was a very bad man to the question of whether people should be tortured in order to gather intelligence.

    4) Wittes’ glib dismissal of legal precedent as a guide to the current crisis is highly irritating. While the principles enshrined in the Constitution and the Bill of Rights may not apply directly to enemy combatants as a matter of law, surely they are a guide to the manner in which a decent society behaves. Likewise, the Geneva Conventions, whether or not they are squarely on point, give a pretty good indication of what the world expects.

    5) Not in the history of the Republic has the Congress taken the initiative on legislation of the scope and magnitude that Wittes demands. The nearest equivalent is probably the Civil Rights Act of 1964. That Act only came to pass because it was buoyed on a wave of popular outrage thanks to MLK and the Movement and rammed through the Congress by LBJ, who was riding on sorrow over JFK’s death and had dirt on most Members of Congress. Leadership on Civil Rights in the modern era came almost exclusively through the executive and the Supreme Court. In the current crisis, it is the Bush administration that failed to exercise responsible leadership in shaping Congressional legislation, and if there is to be responsible legislation, it will only come about because the Obama administration decides to take the lead. At least, that is how I see the political realities.

  6. Charles Carpenter Says:

    Re: Mr. Day’s (3) — The torture works crowd — like Mr. Wittes and his colleagues who take everything they read in a CSRT at face value — need to account for the conduct that is clear even from the redacted version of the Al Rabia opinion:

    It might be theoretically possible to have a conversation about what kind of detention/interrogation regime one might have if the system was being run by intelligent and competent professionals. Apologists for the actual system, though, present that discussion only as misdirection.

  7. Bill Day Says:

    Wittes has a column in the Washington Post today on Obama’s policy toward Guantanamo:

  8. Thomas Nephew Says:

    Yes, I saw it. What do you think of it? I think you should/could write about it at your blog. (I may try myself, but I’m running behind on *this* discussion, and want to get my thoughts on ‘The Law of September 10’ done tonight. Greenwald outlines what he sees as the positive and the underwhelming aspects of Obama’s decision the other day.)
    – – –
    A heads up: Mr. Wittes contacted me last week to say he’d noticed this discussion series, for which he thanked us. He might do an interview with myself and “The Talking Dog” at the end of the discussion, his time permitting, and he might also join in with comments as the discussion proceeds. I think the level of the discussion has been high so far, and I hope we all keep it that way. More positively, everyone’s unanswered comments and/or questions can be part of what we directly discuss with Mr. Wittes if an interview of some kind happens.

  9. mick Says:

    I have a major problem with the kind of retroactive legislating that Mr Wittes seems to be advocating. The TD quite rightly says in his post, “[T]he executive, which must fight the wars, is often out front in developing such frameworks, and Congress often trails behind in “making the rules”. But we’re not talking about some modernization of outmoded or obsolete legal phraseology, or about bringing antique laws into a new era. What Mr Wittes is asking, like all the apologists for this totally unacceptable policy, both legally and morally, is for us to buy the idea that because there are frightened people in the US, we should all decide just how much of our civil rights we should give up and then build a legal “framework” around it so we can all pretend what we just did isn’t unConsitutional, immoral, unethical, and inhumane. Which, of course, it is.

    This is an argument I’ve heard increasingly since the Viet Nam War, and it has been borderline acceptable even on the left since 9/11. But I have said from the beginning that 9/11 did NOT “change everything”. In point of fact, it didn’t change anything. Not legally, not ethically, not morally. Our responsibilities toward prisoners are the same today that they were yesterday. Mr Wittes is concerned about what he calls our (apparently lamentable) “nonconsequentialism” and our naive faith in judges.

    Frankly, I don’t see that this is a discussion we need to be having. We’ve already had it (and under much more stressful conditions than Mt Wittes’ imaginary terrorist war) and we decided that great pressures do not excuse inhuman behaviour. Period. As for my naive faith in judges, Mr Wittes doesn’t seem to understand that faith has nothing to do with it. The law is decided by judges and has been since Hammurabi. Their decisions have the force of law because otherwise there would be no point in having laws. If the law doesn’t keep the judges in line, there need to be remedies for that.

    You see? In order to reply to Mr Wittes’ absurd notion we have to go back to the third grade and re-explain basic civics and world history. That’s what one always ends up doing with conservatives because they never get tired of fighting the same battles. I don’t have the patience for that any more. I suppose I should credit him for what I’m sure he imagines is his centrist and bipartisan stance but there’s no baby to be split here. The treatment of the prisoners is illegal, immoral, unethical, inhumane, and unnecessary. There is no legitimate legal “framework” that can change that.

    The problem isn’t with the law. The law we have is fine. The problem is getting the assholes who are supposed to protect the Constitution instead of their own power to obey it. And yes, I mean Obama.

  10. Bill Day Says:

    Okay, Thomas, I rose to the challenge (the bait?). My comment on Mr. Wittes’ latest article can be found at .

    Mick, well said. At the same time, I do think Mr. Wittes deserves credit for calling attention to these issues, even if I do not necessarily see eye to eye with him on how they should be addressed. In light of the dearth of civil debate in the country in general, I agree with Thomas that we should take advantage of this opportunity both to seek to inform the public and to raise the general level of discourse.

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