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a citizen’s journal by Thomas Nephew

Law and the Long War: the Hoess Opening

Posted by Thomas Nephew on 23rd September 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.

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“Law and the Long War,” by Benjamin Wittes – a blog discussion

Posted by Thomas Nephew on 18th September 2009


Click the image to
place an order for
this book with
Powell’s Books.

This post announces an ambitious and possibly quixotic effort — the attempt of a legal layperson like myself to launch and carry on a discussion about Benjamin Wittes’ “Law and the Long War: The Future of Justice in the Age of Terror,” published in 2008.

Luckily, I’ll be joined in this discussion by my friend “The Talking Dog,” whose legal acumen and training — as well as self-deprecating wit and engaging writing — are always in evidence at his blog of the same name.  “TD’s” interviews of lawyers, policy makers, human rights leaders (most recently with NYU’s Karen Greenberg), and even Guantanamo detainees have been genuine journalism, and are among the finest things the American blogosphere has produced.

Our plan is to take the book chapter by chapter, at no precise schedule other than to take the chapters in sequence.  We hope readers will check Wittes’ book out from the library, borrow it from a friend, or buy a copy for themselves, so they can read along with us and join the discussions we hope for.

We’ve tentatively decided to divide the chapters up as follows:

Announcements – here at newsrackblog and the talking dog
Introduction – discussions at both newsrackblog and the talking dog
Chapter 1.  The Law of September 10 – discussion here at newsrackblog
Chapter 2.  The Administration’s Response – discussion at talking dog
Chapter 3.  The Real Guantanamo – discussion at the talking dog
Chapter 4.  The Necessity and Impossibility of Judicial Review – discussion here at newsrackblog
Chapter 5.  The Case for Congress – discussion here at newsrackblog
Chapter 6.  The Twin Problems of Detention and Trial – discussion at the talking dog
Chapter 7.  An Honest Interrogation Law – discussion at the talking dog
Chapter 8.  Surveillance Law for a New Century – discussion here at newsrackblog
Conclusion – discussions both at newsrackblog and the talking dog

To leave some time for readers to join in (and for me, at least, to gather my thoughts), our first posts about Wittes’ introduction will be sometime around the middle of next week.  At this blog, this post will serve as one “home page” for the overall effort, and the outline above will link to each post as it is written.  We’ll also try to provide “prior chapter” and “next chapter” and other useful navigational links within each post, time permitting.

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Why is this worth doing?  I’m tempted to simply answer: what could be more important?  Whether it’s always clear or not, our lives and our rights are both at risk.  We have to evaluate those risks, and decide what to do about them.

For my part, though, this is also partly just an attempt to become more “fluent” in the legal underpinnings of the debates about the habeas corpus and other human rights of detainees, the costs and benefits of the expansion of executive powers,  and the conduct of international relations and military force in this so-called “long war” of ours.

There are also more immediate reasons to do so: Wittes and his book have proved quite influential, perhaps especially of late.  On its publication, the book merited extended discussion at numerous legal blogs, and gained respectful and often warm reviews in the popular media and the academic press.

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