Institutionalizing Counterterrorism: A Review of Legislating the War on Terror: An Agenda for Reform Edited by Benjamin Wittes

Abstract:     
Late last year, Benjamin Wittes compiled a series of ten essays that offer a range of suggestions for congressional action with respect to U.S. counterterrorism policies. He means for the text not to be taken as a fluid whole, but rather as a series of independent observations and examinations of the broad, complex swath of legal and policy issues encompassing the once-called War on Terror.

The authors of the various pieces range greatly in both their backgrounds and political persuasions. Contributors include noted scholars as well as practitioners, including former officials from both Democratic and Republican administrations, but, Wittes tells us, the common thread among them is the belief in the value of legislative action to help shape the contours of the continuing U.S. confrontation with terrorism. In this period of institutionalizing counterterrorism legal authorities in such a way as to recognize evolving strategies and constantly changing tactics, this text overwhelmingly favors statutory lawmaking to establish what can be done, rather than relying on jurisprudential fiat to decree what cannot.

What follows will read more like a book report than a book review, but, with a modicum of commentary interspersed throughout, it offers an outline of the key points of each chapter, with the goal of piquing the reader’s interest in this interesting compilation. The ten chapters are: I. Nine Democracies and the Problems of Detention, Surveillance, and Interrogation, by Mark H. Gitenstein. II. Administrative Detention: Integrating Strategy and Institutional Design, by Matthew C. Waxman III. Long-term Terrorist Detention and a U.S. National Security Court, by Jack Goldsmith. IV. Optimizing Criminal Prosecution as a Counterterrorism Tool, by Robert M. Chesney. V. Better Rules for Terrorism Trials, by Robert S. Litt and Wells C. Bennett. VI. Refining Immigration Law's Role in Counterterrorism, by David A. Martin. VII. Modernizing FISA: Progress to Date and Work Still to Come, by David S. Kris. VIII. National Security Issues in Civil Litigation: A Blueprint for Reform, by Justin Florence and Matthew Gerke IX. Looking Forward, not Backward: Refining U.S. Interrogation Law, by Stuart Taylor Jr. and Benjamin Wittes. X. Targeted Killing in U.S. Counterterrorism Strategy and Law, by Kenneth Anderson.

Number of Pages in PDF File: 8

Keywords: Terrorism, intelligence, Congress, government, legislation, legislate, national security, interrogation, surveillance, detention, targeted killings, immigration, criminal law, Fourth Amendment, litigation, international law, FISA, CIPA

Accepted Paper Series