a citizen’s journal by Thomas Nephew

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

Posted by Thomas Nephew on September 18th, 2009

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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.


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.

Most importantly, Wittes’ views are gaining influence within the Obama administration.  For example, shortly after Obama’s somewhat disappointing (to me) speech envisioning “preventive detention” in May, Wittes and Colleen Peppard (a colleague at Brookings Institute) published a well-timed 38 page paper “Designing Detention: A Model Law For Terrorist Incapacitation.” NPR’s Ari Shapiro reported that

…the Obama administration seems to be moving closer to a plan like Wittes’. Administration officials have met with many different people, including Wittes, about preventive detention. But this is the first actual draft legislation. According to several sources outside of government who are familiar with the administration’s thinking, this proposal is getting a lot of attention.

The affinity is not too surprising.  It seems clear to me both Wittes and Obama like to identify and occupy a “middle ground” between “opposite and absolutist ends,” to quote President Obama’s National Archives speech.  The question for the rest of us is whether they’ve identified those extremes and  middle ground correctly, and where fundamental human rights lie on that continuum.

For any newcomers to this blog, I should acknowledge that I’ve increasingly taken the “human rights centric” position on the issues discussed in “Law and the Long War,” and have favored greater restraints on executive power than were acknowledged by the Bush/Cheney administration.  Accordingly (in my view) I favored the impeachment of both Bush and Cheney for what I believed and believe were gross abuses of power, encompassing many of the issues discussed by Wittes in his book. This book challenges many of those views.

On the other hand, my views were not always thus, whether because of terror attacks like 9/11, being at the bottom of a learning curve about these issues, or these and other reasons, I still can’t fully say.  Reviewing this book should challenge me to think about that, and to review the beliefs I’ve come to hold.

We need not to just be ready for the day when there’s another terror attack, but for the day, and days, and months, and years after it.  I think the United States rather miserably failed that test in many ways after 9/11 — and Americans like myself did little to prevent that.  Maybe thinking about this book will help us do better — both now, when those memories have begun to hurt less, and in a future I hope never comes, if new ones must join them.

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

  1. the talking dog Says:


    I’m looking forward to working with you on this; it promises to be a most enlightening exercise, and as you noted, concerns a subject whose importance to our lives can simply not be overstated. The very purpose of terrorism is to throw us off our game, to see whether we’ll take the bait and alter our behavior to conform to our fear… such as, oh, changing our laws permanently when we might not really need to… in reaction to terrorism. Well… looking forward to it.

  2. Nell Says:

    This seems like a very worthwhile project. Does taking part require that a person buy into the idea that we’re involve in a “long war”?

  3. Thomas Nephew Says:

    No, not at all! I did say “so-called long war” above. But even if I firmly believed that our conflict with Al Qaeda/Bin Laden is in fact and ought to be a war, pure and simple, and that it will be a long one, I wouldn’t insist on you doing so. — Still, whether we now approve of it or not, there was a rather overwhelming authorization of military force against Al Qaeda. That may not be the declaration of war that would clinch the argument that we are formally and legally at war, but it seems very close to it.

  4. Aziz Poonawalla Says:

    Thomas, be sure to link each installment at Talk Islam as the topic matter is highly relevant and of interest to the audience there!

    (you have tested your access out right?)

  5. » Blog Archive » Law and the Long War: the Hoess Opening Says:

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

  6. Aziz suggested I notify TI of a series o… « Talk Islam Says:

    […] collaborating with another blogger, “The Talking Dog,” on this. In addition to my announcement and his, I’ve now discussed the introduction here: Law and the Long War: The Hoess […]

  7. Bill Day Says:


    Thank you for undertaking this important discussion. I think that another reason why the discussion is important is that it offers an opportunity to provide a rich context for an important subject, and hopefully you and your readers will take advantage of the strengths of the web to link the discussion to its broader context on the web and in the world.

    Bill Day

  8. Bill Day Says:

    No news from the Newsrackblog, and The Talking Dog is silent, so I figured I would try to move the ball forward with my own comment on chapters 1 and 2 of Mr. Wittes’ book.

  9. Thomas Nephew Says:

    I look forward to reading it. I still plan to write my own comment on chapter 2, I’ve been very busy and also a bit writer’s-blocked about it.

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