- The Washington Times - Tuesday, May 19, 2009

In the years since the terrorist attacks of Sept. 11, 2001, Congress has largely escaped the backlash faced by the Bush and Obama administrations on how to deal with suspected terrorists, for the simple reason that the legislative branch has done little to define the legal boundaries of U.S. counterterrorism efforts.

Some scholars and experts see this inaction as a dereliction of duty by Congress as an institution, a failure that transcends partisanship.

“There is an enormous amount of blame to go around Congress in both parties in terms of the abandonment of the field on the part of the legislature over the last seven years,” said Benjamin Wittes, a senior fellow at the Brookings Institution, a liberal Washington think tank.

Paul D. Clement, solicitor general under President George W. Bush from 2005 to 2008, called Congress “the missing branch” during the years after the Sept. 11 terrorist attacks, which killed about 3,000 people in New York, Virginia and Pennsylvania.

“So much of this was a dialogue between the [Supreme Court] and the executive branch,” Mr. Clement said, labeling Congress’ passivity a “damning indictment.”

“We have a separation-of-powers framework that’s really premised on a powerful Congress,” said Mr. Clement, now a Supreme Court specialist at King & Spalding LLP.

To prod Congress into some action, Mr. Wittes is collecting essays from a wide range of legal experts on how Capitol Hill can and should legislate on a wide range of counterterrorism issues. The essays will appear in book form in July.

Last week, Mr. Wittes organized a two-day conference at the historic Montpelier estate, home of the nation’s fourth president, James Madison, where some of the essay authors as well as big legal names like Mr. Clement and former Justice Department lawyer Jack Goldsmith spoke to a small group of journalists, including a Washington Times reporter.

“A lot of these questions are questions we should have been debating starting no more than six months after 9/11, and both for reasons of executive silliness and for reasons of legislative cowardice, we did not take on until those problems became much more difficult and much more acute,” Mr. Wittes said.

“At this point, the hour is late, and we don’t really have a lot of time to waste on it. And the longer we wait, the more the rules get written by the judiciary in a fashion that doesn’t optimize the political, legal and national-security interests of the country.”

A senior congressional aide involved in foreign policy and counterterrorism matters agreed that “Congress has been very circumspect in legislating on these matters.”

“To some degree it’s probably because of the classified nature of some of this, and some members probably are afraid to push too many changes because it might lead in the wrong direction,” said the aide, who spoke about congressional performance and motivation on the condition he not be identified.

A multitude of legal questions await resolution on issues such as interrogation and detention rules as well as protections for state secrets in legal trials.

President Obama sparked an uproar on the left and drew praise from the right for his recent decisions to restart military commissions for terror suspects and to fight disclosure of additional photos of detainee abuse as well as for his administration’s use of the state secrets privilege. However, these are just the first of many tough decisions he’ll face at the intersection of law and counterterrorism.

The White House has left open the possibility of holding some detainees indefinitely, and could reinstitute some Bush-era coercive interrogation techniques after an ongoing review is completed. Either one of those decisions would inflame already simmering critics on the far left.

Still, the congressional aide was not optimistic about groundbreaking new legislation. “I don’t know there’s going to be a whole lot that’s going to change that in the future,” the aide said.

Nonetheless, Mr. Goldsmith and Mr. Wittes said that Congress needs to do a better job of narrowing the definitions of who can be detained as an enemy combatant and what constitutes torture.

Mr. Goldsmith, now the Henry L. Shattuck professor of law at Harvard University, argued in a paper for Mr. Wittes’ book that the enemy should be defined thus: “terrorists who are in the command structure of al Qaeda and its co-belligerent terrorist organizations, and terrorists who directly participate in an armed conflict against the United States.”

The current standard, formulated by the Bush administration, is “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

Mr. Goldsmith, who as head of the Justice Department’s Office of Legal Counsel in 2004 defied the Bush administration by overturning post-Sept. 11 rulings that underpinned harsh interrogation of terror suspects, calls the standard “too vague and too malleable.”

Nonetheless, Mr. Goldsmith said at Montpelier that the U.S. will need to hold some terrorist detainees “for decades.” He laid out a system in which the burden of proof on the government increases with time if officials want to continue holding an individual.

Mr. Wittes argued that the current definition of torture is not precise enough, and suggested specific language so that some mild coercion is allowed but some more forceful practices approved by Bush administration lawyers “fall clearly on the criminal side of the line.”

Matthew Gerke and Justin Florence of the Georgetown Center on National Security and Law argued that Congress must act to prevent the executive branch from abusing the state secrets privilege in court trials.

The two attorneys said that whenever possible, the government should not be able to get cases dismissed simply by claiming that key evidence is classified. Cases should go forward as often as possible, even if the classified information cannot be admitted, and judges should also review the information to ensure that it is indeed sensitive and vital to national-security interests, they said.

Mr. Florence noted that, in his April 29 press conference, Mr. Obama said that the state secrets privilege statute “should be modified” because it is “overbroad.”

Mr. Obama also appeared to endorse the idea articulated by Mr. Gerke and Mr. Florence.

He said, “Searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it’s not such a blunt instrument.”

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