The Enemy Within: Dueling Constitutional Law Professors

By FAREED ZAKARIA

Everyone accepts that “the rule of law” is the foundation of liberties in the Western world. But when did this hallowed tradition begin? Obviously there’s no exact moment, but one could reasonably point to the day in 1215 when, in a small borough outside London called Runnymede, King John was forced by his barons to sign Magna Carta. That document protected the rights of feudal lords, but in doing so it outlined — for the first time in history — legal procedures that even the king had to follow. These limitations are set out in Article 39 of the document, which states that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

This writ — or written order — has developed over the years as the principal check on arbitrary state power, the original human right, allowing a person who has been arrested to challenge the legality of that detention. It is called the “great writ,” habeas corpus, or “produce the body so that it may be examined.” Habeas corpus was codified by the British Parliament in 1640 and 1679 and is one of a handful of common laws explicitly referred to and protected in the American Constitution. Alexander Hamilton, the most zealous exponent of executive power among the founding fathers, noted that habeas corpus provided “perhaps greater securities to liberty and republicanism” than any clause of the Constitution.

But as of Oct. 17 of this year, this great writ has been substantially weakened in the United States by the assent of both the presidency and Congress. The Military Commissions Act of 2006 eliminates habeas corpus for anyone defined as an “unlawful enemy combatant,” as well as all aliens, including permanent residents — green-card holders — of the United States. There remains a form of judicial review for “unlawful enemy combatants,” but it is one that the administration seems allowed to bypass (though the exact legal status of unlawful combatants remains unclear). In effect, federal courts appear to have been stripped of their historic role in assessing the legality of detentions if the executive branch claims that these arrests are part of the war on terror.

How did we come to this point? Do the dangers of terrorists and terrorism require so broad a shift in the balance of powers and such an outright challenge to the liberty of the Republic? What is the justification behind these moves? John Yoo has tried to answer these questions in “War by Other Means: An Insider’s Account of the War on Terror.” He is well placed to do so. He was a deputy assistant attorney general in the Justice Department from 2001 to 2003 and became one of the principal authors of the Bush administration’s policies regarding arrests, detentions, interrogations and the treatment of prisoners. Since 2003, as a professor at the University of California, Berkeley, Law School, Yoo has vigorously defended the Bush administration’s legal actions and approaches.

At the heart of Yoo’s argument is the notion that we are at war. “If, during the cold war,” he writes, “the Soviet Union had sent K.G.B. agents to drive airplanes through American skyscrapers, the United States would have retaliated, our nation would have gone on a war footing. ... Why should status as an international terrorist organization rather than a nation-state make a difference as to whether we are at war?”

Everything in Yoo’s analysis follows from this fundamental premise. Detaining operatives of Al Qaeda presents no constitutional problem because they are, in effect, prisoners of war. “Hundreds of thousands of enemy prisoners of war were captured in Vietnam, Korea and World Wars I or II, and their imprisonment was never reviewed by an American court.” Think of all the objections people have made to the Bush administration’s policies and ask yourself, “If we were in the middle of World War II and these were German soldiers, would it be permissible?” Yoo acknowledges, for example, that the administration chose Guantánamo as the prison camp for suspected Qaeda warriors precisely because it did not want federal courts to have any jurisdiction over the place. For Yoo, since we are at war, we need an aggressive interpretation of executive power — inherent in the president’s role as commander in chief — and one that bypasses Congress, the courts and peacetime protections like checks and balances.

But are we really at war? And if so, who are we at war against? Is it just Al Qaeda or more than that one organization? Is it, as the president has often said, a war on terror itself? Many experts have pointed out that you cannot declare war on a tactic (terrorism). As the international policy analyst Grenville Byford noted in Foreign Affairs, wars are more fruitfully declared against proper nouns (Germany, Japan) than common nouns (terror, poverty). If this is a war, moreover, when will it end? How will we know it has ended and whether we have won or lost? These questions do not have easy answers, as Yoo’s own analysis demonstrates. While arguing throughout the book that we are at war, he also insists that we should not apply the most well established rules of war, the Geneva Conventions, to Qaeda prisoners because, well, we are not at war. The conventions are meant to apply to uniformed soldiers captured in war, and that does not describe prisoners in the current conflict.

The practical problems in applying the war model reveal the complexity of our circumstances. During World War II, there was rarely any doubt whether captured German soldiers were in fact fighting for the enemy. But with many of those captured as part of the war on terror, it remains extremely unclear whether they are, in fact, enemies of the United States. Is it necessary to torture some of them in ways that peacetime laws might prohibit? Yoo tends to answer these questions with assertions like “Both Porter Goss, the past director of the C.I.A., and Vice President Cheney, who know far more than they can reveal publicly, have said that such operations are vital to protect the United States from attack.” Well, that settles it then.

Against this “trust us” doctrine we have Ron Suskind’s richly reported details in his recent book, “The One Percent Doctrine,” which reveal how many people have been wrongly arrested, how often torture produced bad information and how few real benefits have been derived from these aggressive interpretations of law and foreign policy. Yoo explains that torturing Abu Zubaydah — Al Qaeda’s No. 3 leader — was vital to uncovering new plots against America. The president described Zubaydah’s harsh interrogation as crucial to the war on terror. But Suskind actually talked to those who did the roughhousing, and they told him that Zubaydah was in fact unimportant, a man in charge of minor logistics for Al Qaeda like travel for wives and children. What’s more, he was mentally unstable. “The guy is insane, certifiable, split personality,” the F.B.I.’s top Qaeda analyst told Suskind. He provided no information of value whatsoever.

Another complication is that traditionally P.O.W.’s have been held without trial because they were usually released when hostilities ended. But does this model apply in a war of indefinite duration? As the administration has found, as a practical matter, it cannot detain hundreds of people in a legal black hole with no end in sight. Yoo argues that “indefinite” does not mean “forever” and that if prisoners can be returned to their home countries without fear that they will start up terrorist activities again, then they should be released. But, as with much of Yoo’s analysis, everything is left to the discretion of the commander in chief. We are at war, after all.

But it is abundantly clear that the “war on terror” is not a war in the traditional sense and that we do not have an enemy in the traditional sense. In “Before the Next Attack,” Bruce Ackerman, a Yale law professor, points out that the problem of terrorism is not one of a single overarching state that has attacked us and threatens our existence. In fact a key feature of the modern world is that the state has lost control over violence. “The root of our problem is not Islam or any ideology, but a fundamental change in the relationship between the state, the market and technologies of destruction,” Ackerman writes. “If the Middle East were magically transformed into a vast oasis of peace and democracy, fringe groups from other places would rise to fill the gap.” Ackerman’s argument could be put differently. We are facing a situation that is actually more revolutionary than the one portrayed by the Bush administration. It’s not that we’re at war. It’s that the nature of peace has been fundamentally altered. From now on, we will have to worry about small groups, without countries or uniforms, who can cause us serious harm.

Ackerman accepts that the law-enforcement model is not appropriate for the challenge of terrorism, since our aim is not to investigate the next terror attack but to prevent it, in fact to pre-empt it. But that is still a different problem from the threat of a full-scale invasion by a great power. Most important, what we now face is likely to be a permanent condition, and this means we need new rules. Ackerman proposes an emergency constitution that would take effect after a major terrorist attack and would include some of the restrictions of the Bush administration’s approach. But it would also expire periodically and could be renewed only by ever-increasing Congressional majorities. Additionally, courts would be able to review any revisions. Ackerman’s solution may or may not be practical, but at least he confronts the problem intelligently, and he is surely correct to say that it’s not a good idea to respond to particular crises with ad hoc changes to our laws. If we don’t think through the basic structure of rules, rights and protections we want, every new attack will produce creeping but permanent limits on freedom.

There is one aspect of our new condition that neither Yoo nor Ackerman addresses in much depth — the broader political context. The United States is fighting a strange war indeed, one that is, in some fundamental ways, an extended campaign of public diplomacy against ideologies of extremism and violence. This campaign is not simply a matter of battling on the air waves with Al Jazeera across the Arab world. It is a matter of reaching into communities. The best sources of intelligence on jihadi cells have tended to come from within localities and neighborhoods. This information has probably been more useful than any we have obtained from waterboarding or sleep deprivation.

Yoo frequently cites a famous case of Nazi agents — Germans and German-Americans — who landed secretly on Long Island in 1942, planning to destroy key elements of America’s industrial strength: power plants, factories and bridges. They were arrested by the F.B.I. and tried by a military tribunal. The case reached the Supreme Court, which upheld the Roosevelt administration’s actions. Many of the justices did so uneasily, but they felt they could not really overturn the administration’s decision in the midst of World War II. The more notable aspect of this story, however, is that these men were arrested not because of any emergency powers of the executive branch. One of them, who had lived for some years in the United States, turned out to have stronger feelings of affection for America than for Germany. Soon after the agents landed, he contacted the F.B.I., which dismissed his tale at first, but he persisted and, finally, the men were arrested.

In its campaign against terror groups, the United States must summon all the strength and skills it can muster. But perhaps our most potent weapons are the sense people around the world have had that the United States is an exemplar of rights and liberties and that it lives by those principles even under storm and stress. When we suspend the writ of habeas corpus, we cast aside these distinctive weapons and trade them for the traditional tools of dictatorships — arbitrary arrests, indefinite imprisonments and aggressive interrogations. Will this trade really help us prevail?

Fareed Zakaria is the editor of Newsweek International, the author of “The Future of Freedom” and the host of the PBS program “Foreign Exchange.”