Obama administration faces national security law challenges


Visiting Professor Jim Baker (R) Speaks as Ben Wittes Looks on (L)

Ben Wittes, a columnist for the New Republic, a fellow at the Brookings Institution, and the author of recently-released Law and the Long War, and Visiting Professor James Baker, former head of the Office of Intelligence Policy and Review at the Justice Department, discussed law and the War on Terror this week in an event sponsored by the Federalist Society.

Wittes focused on the issues facing the incoming Obama administration. Taking a realist’s position on the future of law and the war on terror, Wittes noted that while difficult questions regarding interrogation have been pushed onto the horizon via recent legislation, the next administration will “not be able to not deal with” the issues of detention and trial. Noting promises by both candidates to close Guantanamo Bay, Wittes described how the future of detention, and especially of trial, creates huge issues going forward because there are no easy answers after Guantanamo is closed.

Wittes found each option to be unpalatable politically or strategically. He noted that release of the prisoners through the adoption of broad reading of human rights law would be “a non-starter” because such a plan would seem to require the release of men like Mohamed Khatami, who was a part of the 9/11 plot. Wittes also said that closing Guantanamo and moving the prisoners to other holding locations created problems regarding the reach of courts, the need for large-scale secure facilities, and the lack of desire most members of Congress have for holding a jail full of terrorists in their district. Wittes concluded that a brand new structure needs to be produced in consultation with Congress.

Wittes also discussed the tribulations of the trial system. Repeatedly, Wittes noted that the central problem with designing a trial system in the war on terror is that in regular criminal procedures detention is ancillary to trial, while in the case of terror suspects the act of detention is primary while the trial itself is secondary. Wittes lauded the trial of Salim Hamdan as having been incredibly fair and secured most every safeguard a normal U.S. trial would have. He also criticized Hamdan’s trial for limiting the government’s evidentiary capabilities, which led, he claimed, to a sentence lower than would have been handed down in federal court.

Baker focused his comments on the need to address surveillance law even though, he admitted, “there is no appetite on the Hill for re-engaging on this.” Baker said there is a need to re-engineer the surveillance regime because its complexity has a deleterious effect on agents working in the field. Baker attributed the complexity to the fact that current law came about through the FISA Amendment Act, the Protect America Act, and various FISA court orders issued to fix discrete concerns at moments in time resulting from the United States terrorist surveillance program.

The result, he noted, is that there are numerous ways for an agency to get to the same wiretap, each of which entails different requirements. Baker noted specifically that there are eight different ways to get telephone dialing information. This complexity, Baker insisted, is a “disservice to the country,” because it leads to confusion on the front lines and thus to the potential for abuse or for too much hesitation.

Noting that we will go through “a period of vulnerability” during the transition between administrations, Baker continued to focus on the need to give the men and women on the front lines clear, powerful rules and tools so that they can effectively defend U.S. interests at home and abroad.

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