Legislating the War on Terror: An Agenda for Reform
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Legislating the War on Terror: An Agenda for Reform

by Benjamin Wittes

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The events of September 11 and subsequent American actions irrevocably changed the political, military, and legal landscapes of U.S. national security. Predictably, many of the changes were controversial, and abuses were revealed. The United States needs a legal framework that reflects these new realities. Legislating the War on Terror presents an agenda for


The events of September 11 and subsequent American actions irrevocably changed the political, military, and legal landscapes of U.S. national security. Predictably, many of the changes were controversial, and abuses were revealed. The United States needs a legal framework that reflects these new realities. Legislating the War on Terror presents an agenda for reforming the statutory law governing this new battle, balancing the need for security, the rule of law, and the constitutional rights that protect American freedom.

The authors span a considerable swath of the political spectrum, but they all believe that Congress has a significant role to play in shaping the contours of America's confrontation with terrorism. Their essays are organized around the major tools that the United States has deployed against al Qaeda as well as the legal problems that have arisen as a result.

• Mark Gitenstein compares U.S. and foreign legal standards for detention, interrogation, and surveillance. • Matthew Waxman studies possible strategic purposes for detaining people without charging them, while Jack Goldsmith imagines a system of judicially reviewed law-of-war detention.

• Robert Chesney suggests ways to refine U.S. criminal law into a more powerful instrument against terrorism. • Robert Litt and Wells C. Bennett suggest the creation of a specialized bar of defense lawyers for trying accused terrorists in criminal courts.

• David Martin explores the relationship between immigration law and counterterrorism.

• David Kris lays out his proposals for modernizing the Foreign Intelligence Surveillance Act.

• Justin Florence and Matthew Gerke outline possible reforms of civil justice procedures in national security litigation.

• Benjamin Wittes and Stuart Taylor Jr. investigate ways to improve interrogation laws while clarifying the definition and limits of torture.

• Kenneth Anderson argues for the protection of targeted killing as a counterterrorism tool.

How should Congress authorize, regulate, and limit counterterrorism tools, and under what circumstances should it permit and encourage their use? The authors of this book share a commitment to pushing a reluctant Congress to play a more active role than it has to date in writing the rules of the road.

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Legislating the War on Terror

An Agenda for Reform

Brookings Institution Press

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ISBN: 978-0-8157-0310-5

Chapter One


Nine Democracies and the Problems of Detention, Surveillance, and Interrogation

The United States faces vexing questions concerning how to safeguard civil liberties and human rights in the face of threats to its national security, and its experience has resulted in a unique balancing of those concerns. But the threats against the United States are not unique; other nations have faced—and still face—terrorist threats. Those nations have confronted the same type of threats in light of their own civil libertarian and democratic traditions. As the United States considers the long-term legal architecture for its confrontation with terrorism, it is instructive for the country to look beyond its borders to examine the successes and failures of international efforts to combat similar—though not identical—threats. Without abandoning either U.S. ideals in the pursuit of a hermetic sort of security or U.S. safety in the pursuit of unbridled personal autonomy, the country can learn from the experiences of other nations—from the similarities and differences in their approaches and those that the United States has taken. While some of the choices of other states reflect the particular concerns of their unique local democratic cultures, others reflect wisdom from which Americans might learn.

This chapter surveys the responses among a number of democratic countries around the world to three fundamental problems with which the United States has struggled since the September 11 attacks: the circumstances under which a government may detain individuals without criminal process; the proper limits on interrogation techniques; and the circumstances under which a government may subject persons whom it does not detain to domestic electronic surveillance.

My purpose in these pages is not to advocate any particular policy. It is to set up the discussion in the chapters that follow concerning the details of policy trade-offs by comparing the U.S. response so far in these three areas with those of eight other democracies: Australia, France, Germany, India, Israel, Spain, South Africa, and the United Kingdom. Three of these countries—Australia, India, and the United Kingdom—share the common law tradition of the U.S. judiciary. Three others—France, Germany, and Spain—come from a civil law tradition. The remaining two—Israel and South Africa—exhibit aspects of both traditions. Each of the countries is party to major international agreements such as the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

While it is common to discuss the U.S. response to terrorism since September 11 as excessive in comparison with the responses of other countries, the survey reveals a more complicated picture. For while U.S. law, particularly as interpreted by the Bush administration, is indeed more permissive in some respects than the laws of some other democracies, it is also significantly more restrictive in other respects. Indeed, in such areas as surveillance and detention, the survey is striking for the remarkable diversity of approaches that recognizably democratic countries have taken. By contrast, the democratic world has converged toward an increasingly uniform rejection of harsh interrogation tactics—which perhaps explains the world's horrified reaction to the Bush administration's interrogation policies, which deviated substantially from the emerging consensus.

One striking feature of the survey is that no other democracy has proceeded under the executive power model advanced by the Bush administration. Where foreign counterterrorism powers are broader than comparable U.S. powers, they are broad by statute, not by asserted inherent authority. That fact to some degree reflects the uniqueness of the U.S. constitutional system, in which the executive branch does not depend on the legislature for its powers. But that observation also has important process implications. For it means that foreign prime ministers and leaders are much less likely to be operating in stark tension with the legislature in pursuing even robust counterterrorism measures than was the Bush administration.

The Countries

To draw suitable comparisons, it is necessary to be mindful of the threats that each country faces and how its terrorism defenses have been altered by past attacks. The countries surveyed here differ from the United States both in terms of the threats that they face and in terms of their legal systems and civil libertarian traditions. The United States is blessed to have such a deep and storied civil libertarian tradition as well as a vigilant and independent judicial system. The United States also faces a more recent and more manageable domestic threat than that faced by some other countries. What's more, no country in history has ever had to project force abroad the way that the United States has had to in order to confront its terrorism problems at home. The laws of other democracies, in other words, are designed for confronting terrorists locally, not globally.


Australia has a federal system of courts like that of the United States. However, Australia lacks both a constitutional and a statutory bill of rights. Unlike that of the other nations studied here, Australia's exposure to terrorism is recent—there has been no terrorist attack on Australian soil, although numerous Australian citizens were killed in the Bali bombings of 2002 and 2005 and Australian officials have worried about attacks within Australia itself. In the aftermath of September 11, Australia instituted a variety of legal measures to combat terrorism, notably by criminalizing "terrorist acts" and derivative crimes and authorizing the Australian Security Intelligence Organization (ASIO) to adopt special investigative measures; it also expanded ASIO's power to detain suspects in terrorism-related investigations.


France has long faced threats of terrorism stemming both from the importation of foreign conflicts and from domestic terrorist groups. In the 1950s and 1960s, as a consequence of the bitter war in Algeria, mainland France experienced a wave of terrorism. After a lull of more than a decade, terrorism reemerged as a problem in the late 1970s,with attacks by foreign organizations such as the Palestine Liberation Organization, political extremist groups, and separatist movements. During the mid-1980s, France was subjected to the rapid and intense succession of more than twenty deadly attacks that likely were sponsored by Iran and Syria. In the mid-1990s, Algerian Muslim fundamentalists were responsible for several attacks. Since then, France has foiled several attacks linked to Islamic extremists, such as a 2005 plot by Salafi militants to attack targets in Paris. Islamic extremists—most notably transnational groups such as the Algerian Groupe Islamique Armée (GIA), which has links to al Qaeda—continue to pose a serious threat to France. In addition, however, France's large and dissatisfied Muslim community forms 10 percent of its population.

To confront France's long-standing, if constantly morphing, threat of terrorism, French authorities wielded preemptive and intrusive powers long before the September 11 attacks. A system of centralized and specialized investigative magistrates dates back to the attacks of the mid-1980s, and additional legislation enacted in 1996 to prohibit conspiracy to commit terrorism was used in the aftermath of September 11 for preventive arrests and investigations. Those legislative measures have undergone careful scrutiny by legal institutions to determine their compatibility with the rights of individuals protected by France's 1958 constitution. In the wake of September 11 and the London bombings of 2005, the scope of terrorism crimes has expanded still further, penalties have been stiffened, and new investigative techniques have been authorized.


Germany traditionally has perceived its terrorist threat as largely domestic, although that changed to some degree following the September 11 attacks. The most significant terrorist actions occurred in the mid-1970s, when the left-wing Red Army Faction mounted a series of violent attacks against prominent figures. Although international terrorists have sporadically attacked Germany, terrorism has largely been addressed as a matter of criminal law enforcement. September 11 was particularly shocking to Germans because the planning for the attacks took place in Hamburg, raising concerns that the country had become a safe harbor for transnational networks of Islamic extremists planning and initiating terrorism. Two major bomb plots since 2006—one aimed at German trains, the other at U.S. interests in Germany—have further intensified scrutiny of the nature of the terrorist threat and Germany's approach to terrorism.

In response to September 11, the German legislature enacted two broad antiterrorism packages. They were intended to expand existing legal authority to pursue individuals and entities involved in terrorism, enhance the investigative authority of the government agencies charged with combating terrorism, and increase the resources devoted to identifying and prosecuting terrorists. The federal government's response has been necessarily constrained by Germany's constitution—the Basic Law. The German federalist system divides governing authority between the federal government and the sixteen states, resulting in a decentralized security apparatus. Despite Germany's decentralization of power and civil liberty protections, German security authorities have pursued antiterrorism efforts with vigor, detecting a number of extremist cells and possibly thwarting some attacks.


India faces a multitude of internal and external threats. The most visible sources of terrorist activity are external groups in or supported by Pakistan, internal separatists in the northern states of Jammu and Kashmir, and domestic religious extremists. India has experienced terrorist activities aimed against its government, the assassinations of prime ministers Indira Gandhi in 1984 and Rajiv Gandhi in 1991, and, most prominent, an armed attack on Parliament in 2001. It has seen attacks aimed against religious groups and communities—for example, a 2002 attack on a train of Hindu pilgrims, the ensuing pogroms against Muslims, and a 1984 mass attack against Sikhs following the assassination of Indira Gandhi. Moreover, it has seen attacks against the establishment by fringe groups such as the Naxalites (Communists). Most recently, it suffered the devastating 2008 Mumbai attacks against tourist and other infrastructure in India's financial capital. Given the variety and complexity of threats facing India, it is difficult to characterize them in a general manner conducive to supporting broad legislation.

In response to the December 2001 terrorist attack on the Indian parliament, India passed the Prevention of Terrorism Act (POTA). POTA restored and refined numerous counterterrorism measures that had been enacted under the Terrorist and Disruptive Activities (Prevention) Act (TADA), which was passed in response to the assassination of Indira Gandhi in 1984 but had lapsed in 1995. POTA shared many features with TADA, such as a broad definition of terrorism offenses. Following widespread domestic and international condemnation of POTA, the government of Manmohan Singh made good on a campaign pledge to repeal it in 2004.

In response to the Mumbai terrorist attacks on November 26, 2008, however, the Indian parliament introduced two pieces of legislation, both of which became law within a few days of their introduction. The Unlawful Activities (Prevention) Amendment of 2008 (UAPA) focused more specifically on terrorism than an earlier law, the Unlawful Activities (Prevention) Act of 1967, by introducing a definition of "terrorist act" that was missing from the 1967 legislation and introducing numerous new terrorist offenses. Offenses included raising funds for terrorist acts, organizing terrorist camps, and recruiting anyone for a terrorist act. In addition, the bill extended the maximum period of detention without bail to 180 days. The act also amended the presumption of innocence for terrorist acts to a presumption of guilt if the prosecution shows that substances specified under the definition of "terrorist act" were recovered from the accused or that there is reason to believe that such substances were used in commission of a terrorist act or if expert evidence places the accused's fingerprints anywhere at the site of the offense.

In important respects, the UAPA goes further in its provisions than did the POTA. For example, the POTA's definition of "terrorist act" was almost identical to that of the UAPA; however, the UAPA includes as terrorist acts those that are "likely to" threaten the unity and sovereignty of society, whereas the POTA had been limited to those acts specifically intended to threaten society. The UAPA also does not limit the effects of a terrorist act to Indians but specifically provides that a terrorist act can include striking terror in people of a foreign country or acts intended to induce the government of a foreign country to act. The POTA, by contrast, had not specifically mentioned the people or government of foreign countries. The POTA also had not included the additional terrorist offenses criminalized in the UAPA (such as organizing terrorist camps or recruiting persons for terrorist acts) unless the accused was a member of a prescribed terrorist organization and was recruiting members for that organization.

The second piece of legislation, the National Investigation Agency (NIA) Act of 2008, established a national agency to investigate terrorism offenses and to coordinate with various state and local law enforcement agencies. That is the first time that such an agency had been proposed.


Israel faces threats from surrounding Arab nations and the Palestinian territories, the most immediate coming from militant and extremist groups within the Gaza Strip and West Bank. The second intifada—characterized by the Israeli government as an "armed conflict short of war"—presents the most constant and visible threat, and there is tension between political and military/ security efforts to resolve or ameliorate the situation. Hezbollah, based in southern Lebanon, also presents a prominent threat. In addition, Israeli society has had difficulty in assessing and addressing potential threats from Israeli Arabs who reside within Israel, although there have been few proven instances of terrorist attacks involving Israeli Arabs.

The Knesset passed no legislation in specific response to September 11, but Israeli law has developed in response to the two intifadas. Given its history and geographic location, Israel's experience with terrorism is deep. Many of the specific antiterror measures in place now were implemented in response to the first intifada (1987–94) and the second intifada (2000 onward). Other anti-terror legislation and administrative detention laws predated the first intifada, as did emergency legislation carried over from the pre-state British Mandate, which is still used in dealing with terrorism. Following international momentum in the wake of September 11, Israel adopted terrorist financing legislation in 2004. As a hybrid of common law and civil law, Israel's independent judiciary enjoys wide judicial discretion, including the judicial power to create case law.


Spain has a long history of terrorist attacks on its own soil—largely perpetrated, at least until recently, by Euskadi Ta Askatasuna (ETA), the armed Basque separatist organization. According to Spanish government figures, ETA has killed more than 800 people in terrorist attacks since 1968. ETA attacks have fallen off sharply recently, although the organization was responsible for the Madrid airport bombing in 2006 and the assassination of an ex-politician in 2008. In recent years, Spain also has faced the threat of terrorist attacks from Spanish citizens of North African descent and illegal immigrants from that part of the world; the individuals tried for the devastating 2004 Madrid train bombings, which killed 191 people, were mostly Moroccan citizens.


Excerpted from Legislating the War on Terror Copyright © 2009 by GEORGETOWN UNIVERSITY LAW CENTER AND THE BROOKINGS INSTITUTION. Excerpted by permission of Brookings Institution Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

Benjamin Wittes is a senior fellow and research director in public law at the Brookings Institution. He is the author of Law and the Long War: The Future of Justice in the Age of Terror (Penguin, 2008). He is also a member of the Hoover Institution's Task Force on National Security and Law.

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