The Slightly More Conservative Side

The one area where I continue to get attacks from my more liberal friends is on national security matters. Anyone who knows me personally understands that I am a very defense obsessed person, though I do not like unnecessary weapons systems. I also have a firm belief in creating a workable structure for national security in the war of terror. This means finding a balance between a civil libertarian viewpoint and a hawkish stop at nothing to get the terrorist viewpoint.

I got giddy this morning during my NPR fun. Ari Shapiro reported about Benjamin Wittes. Wittes works at Brookings, and I have actually heard him speak many a time, including about his famous book Law and the Long War, which outlines the complicated legal issues in the War on Terror. He is pragmatic, and I personally enjoy how he tries to balance between these views as well.

Wittes's new plan is something worth reading. While I have not yet had the time to curl up and digest the ideas, what strikes me is the careful crafting of what is going on. It acknowledges that the major conflict involved in the matter. We do not want to undermine the rights that this country supports. However, on the other hand, he also understands clearly that we need preventative detention. Such powers are part of the laws of war, and he writes this seeks to supplement the laws of war. Of course, my own personal initial reaction is that this clarifies the laws of war. One should note, at least, that the power of the Executive and Congress is limited by the natural laws of war that all sovereigns have. See Brown v. United States, 12 U.S. 110 (1814), Story, J. dissenting (holding that Congress can restrict the powers of the Executive through statute, but implying that they cannot expand war powers beyond what natural law gives).

The policy seemingly excludes U.S. Persons from the process. It does allow for hearsay at the initial hearings after 14 days, but it does not allow for evidence obtained by torture. During the hearing a judge decides and can extend preventative detention for about 6 months. After that it happens again. This could lead to an infinite loop, however, the courts themselves have often shown that they grow tired of such loops. In some sense, Boumediene may reflect that idea.

Since I come from a somewhat left view, I will address those concerns. Many just reject outright the idea of preventative detention as wrong. They believe that a trial is necessary. However, Wittes points to the notion that intelligence gather is not the main goal. It is collateral. The goal is to disrupt terrorist networks and hold the most dangerous terrorists until these disruptions occur.

People argue that we have a system for this. It's called the Criminal Justice System, which requires trial and the high evidentiary standards of the Fed. R. Evid. However, the trial system ultimately fails. The most dangerous targets often are the very ones whose hands are clean. Low ranking people in the organization do the dirty work. They carry the bombs. They make the phone calls. The higher ups stay out of sight, and thus, evidence to convict is limited. However, releasing them may make the situation worse, because they are the very ones with dense links in these terrorist networks. Taking them out for a time disrupts the network, and the idea is that release can occur.

I remain concerned about the matters of process and rights. However, I also remain concerned about security as well. As I often warn my more liberal friends, should these terrorist networks succeed because we lacked a preventative detention system, the PATRIOT Act will look like nothing.