'Law and the Long War' by Benjamin Wittes

The Future of Justice in the Age of Terror

Benjamin Wittes

Penguin Press: 306 pp., $25.95

Benjamin Wittes is an eternal optimist. In 2006, he wrote a smart little book, "Confirmation Wars," which argued that U.S. Supreme Court nominees should not have to endure lengthy appearances before the Senate Judiciary Committee just so that preening senators can wax loquacious for hour after hour of live television coverage. Don't hold your breath.

Now the Brookings Institution fellow and former editorial writer for the Washington Post is back with "Law and the Long War," a rich and thoughtful volume that calls on Congress to extract the U.S. government from the deepening legal morass created by what he views as the Bush administration's ill-managed "war on terror." Don't hold your breath for this, either.

Since Sept. 11, 2001, the executive branch's aggressive efforts to disable possible Al Qaeda terrorists have moved forward with only limited legislative contributions from Congress. Now the administration's detention of hundreds of alleged Al Qaeda operatives at the U.S. naval base in Guantanamo Bay, Cuba, many of whom have been imprisoned there for more than six years, is generating a landslide of courtroom litigation in which the government is playing a losing hand.

A jerry-built system of "Combatant Status Review Tribunals" and attendant military administrative proceedings was set up by the Pentagon to process the prisoners. But Wittes emphasizes that Congress "never grounded the detentions in law -- meaning that the entire edifice . . . stands on a bed of sand." The shakiness of this structure has become especially apparent in recent weeks: First the high court, in a case titled Boumediene vs. Bush, ruled that the Guantanamo detainees have the right to petition for their individual release through habeas corpus actions in federal court. Then a federal appeals court found that Huzaifa Parhat, one of 17 Guantanamo detainees who are Uighur Muslims from western China, did not merit any detention as an "unlawful enemy combatant" whatsoever.