Wednesday, March 09, 2011

Book Review: Law and the Long War

Wittes, Benjamin. Law and the Long War: The Future of Justice i the Age of Terror. New York; The Penguin Press, 2008.

This book started out slow. Really slow. So slow he really needs a disclaimer: "If you've been paying any attention at all to the news for the last six years, you can skip the first six chapters." It gets better after that, but I cannot, in good faith, recommend a book that is basically a blow-by-blow retelling of the Bush era. The best part of the first six chapters is this quotation from Al Gore: "That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action! The guy is a terrorist! Go grab his a**!"

In last two chapters, he finally gets around to his thesis, that judicial overreaching in response to executive overreach is really no improvement, and that Congress is the only branch with the authority to create an environment in which the war on terror can be successfully prosecuted. I'm a fan of the idea of Congress as well, but haven't had a real Congress that inspires my confidence in, oh, my lifetime.

In chapter seven, "An honest interrogation policy," he doesn't provide any exact policy guidance, but rather gives an outline of what a policy might look like. It's helpful, in its way, but it seems to be dodging the question. The closest thing he offered to guidance was the "Las Vegas" policy--that which happens in counter-terrorism, stays in counter-terrorism. Rather than focusing on the specific techniques used, you have to clearly define who might be subject to it, so that these techniques don't migrate to the criminal justice system. I would add, as part of that, that those who are employed in counter-terrorism, if that is the case, should never be employed thereafter in civilian law enforcement. That's how techniques move, and that is what we want to avoid.

He did, however, argue that whether our national idealists like it or not, the United States is going to have a policy on detentions and torture. If we do not have official standards, they're going to be conducted unofficially in black sites and renditions. Those are a cause of high-mindedness, not a cause of government overreach. They would much more willingly conduct these activities with oversight and shielding than conduct them without authority.

In chapter eight, the big idea for me was his definition of privacy. He argues that privacy law has focused on the data itself, the who, what, when, where, why, and how of data, and not on the use that it is put to. He argues that the invasion of privacy happens not when a computer system detects a transmission somewhere in the world and scans it. The true invasion of privacy happens when the computer's algorithm determines that it has acquired significant data, and that data is referred to a human for analysis and possible action. Our privacy law should require a warrant at that point. It would make the job of the intelligence court a bit harder, I would think, to evaluate the evidence that a computer returns, but it makes sense. Ones and zeros are not privacy, when it becomes flesh and blood it is privacy.



Blogger dangel smith said...

great book. thanks for sharing!

Seattle Real Estate

11:24 PM  
Anonymous Grant said...

Thanks for the review, I feel insprired to read it now, skipping the first 6 chapters probably.

1:00 PM  

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