Author Archives | Benjamin Wittes

Liberty and Security: Hostile Allies

Hoover Institution, November 10, 2011 “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” —Benjamin Franklin They are perhaps the most famous words ever written about the relationship between liberty and security. They have become iconic. A version of them appears on a plaque in the […]

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Legality of Targeting American-Born Terrorists

Brookings Institution, October 28, 2011 Summary: An explanation of the law governing the targeting an American citizen overseas—in light of the killing of Anwar Al Awlaki.

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John Brennan’s Remarks on the Obama Administration’s Policy on Combating Terrorism

Brookings Institution, September 26, 2011 On September 16, 2011, President Obama’s chief counterterrorism advisor, John O. Brennan, told conferees in a keynote address at the Harvard Law School-Brookings conference (part of the new Harvard Law School-Brookings Project on Law and Security) that the United States must not let down its guard in fighting terrorist organizations […]

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Against a Crude Balance: Platform Security and the Hostile Symbiosis Between Liberty and Security

The Brookings and Harvard Law School Project on Law and Security, September 21, 2011 “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” —Benjamin Franklin They are perhaps the most famous words ever written about the relationship between liberty and security. They have become iconic. A […]

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Transfers of Guantánamo Detainees to Yemen: Policy Continuity Between Administrations

Coauthored with Robert M. Chesney and Matthew Waxman Briefing to the House Armed Services Subcommittee on Oversight and Investigation, “Transfers of Guantanamo Detainees to Yemen: Policy Continuity Between Administrations,” June 15, 2011. Thank you for the opportunity to brief the subcommittee on the problem of transfers of Yemeni detainees from Guantánamo Bay. Yemeni transfers have, since […]

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Brookings ECPA Event

May 17, 2011 A panel event at Brooking on reforming the Electronic Communications Privacy Act.

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Are Harsh Interrogation Tactics Justified?

Brookings Institution, May 13, 2011 Summary: We can’t duck the question of effectiveness, but we must consider the moral and legal aspects, as well as the risk to the United States’ reputation, and the nation’s commitment to human rights and justice across the globe.

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The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking

Coauthored with Robert M. Chesney, Larkin Reynolds and The Harvard Law School National Security Research Committee. Brookings Institution, May 12, 2011. In January 2010, the Governance Studies department at Brookings released a paper entitled “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking.”  In that paper, two of the present authors sought to describe […]

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Detention and Denial at Politics & Prose

Politics and Prose, March 5, 2011 A speech I gave on Detention and Denial: The Case for Candor After Guantanamo, at Politics & Prose—my local bookstore in Washington D.C.

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Assessing the Risk of Guantánamo Detainees

Brookings Institution, April 25, 2011 The press has discovered that it is shocked that America is releasing dangerous people from Guantánamo Bay. The New York Times reports, based on a new cache of Wikileaks documents, that Guantánamo detainees classified as low risk had turned out to be major terrorists, and that detainees classified as “high […]

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Databuse: Digital Privacy and the Mosaic

Brookings Institution, April 1, 2011, “The question of privacy lies at, or just beneath, the surface of a huge range of contemporary policy disputes. It binds together the American debates over such disparate issues as counter-terrorism and surveillance, online pornography, abortion, and targeted advertising. It captures something deep that a free society necessarily values in […]

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Can President Obama and Congressional Republicans Reach a Deal on Guantánamo?

Brookings Institution, March 10, 2011 Is there a deal to be done between President Obama and congressional Republicans on Guantánamo? On the surface, the prospects don’t look good. Congress has slapped a series of impediments on detainee transfers from the base. In issuing his Executive Order to create a review process for Guantánamo detainees this […]

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Imperiled By Innovation

Hoover Institution, February 16, 2011 Imagine that the Gulf oil spill had taken place as a consequence of a premeditated attack, rather than an accident. The damage is the same as it was; the oil flowed in the same volume. The only difference is volition: In this dark fantasy, someone meant to do it. In […]

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Time for Obama to Embrace Guantanamo

Brookings Institution, January 21, 2011 It is now two years since Barack Obama promised to close the detention facility at Guantanamo Bay within one year. It is one year since he missed his self-imposed deadline. And as he has no prospect of fulfilling his promise, it is almost certainly one year before he faces his […]

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Preventive Detention in American Theory and Practice

Coauthored with Adam Klein. Harvard National Security Journal, January 18, 2011 It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups1 and in a great deal of legal scholarship.2 It treats the […]

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Rationalizing Government Collection Authorities: A Proposal for Radical Simplification

Coauthored with Rabea Benhalim and Wells C. Bennett. Brookings Institution, January 7, 2011 The life of every person in an advanced industrialized country is a mosaic of digital information stored on public and private computer servers around the world. Most of the tiles of your own personal mosaic do not reside in your hands. They […]

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No Place to Write Detention Policy

Co-authored with Jack Goldsmith, The Washington Post, December 22, 2009 Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. These judges, not experts in terrorism or national security and not politically accountable to the electorate, inherited […]

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Detention and Denial: The Case for Candor after Guantánamo

“Our current stalemate over detention serves nobody—not the military or any other component of the U.S. government that has to operate overseas. . . . It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that […]

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Innovation’s Darker Future: Biosecurity, Technologies of Mass Empowerment, and the Constitution

Brookings Institution, December 8, 2010 “Using gene-splicing equipment available online and other common laboratory equipment and materials, a molecular biology graduate student undertakes a secret project to recreate the smallpox virus. Not content merely to bring back an extinct virus to which the general population is now largely naïve, he uses public source material to […]

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Skip the Trials for Terrorists

Co-authored with Jack Goldsmith, The Washington Post, November 19, 2010 The Obama administration’s critics are missing the point on Ahmed Ghailani. Their reaction to his acquittal this week on 284 criminal counts and conviction on only one exaggerates both the vices of civilian courts and the virtues of military commissions. And it elides an important […]

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Making Our Democracy Work: An Interview with Justice Stephen Breyer

November 10, 2010 This is an interview I conducted with Justice Stephen Breyer at the Brookings Institution on his book, Making Our Democracy Work: A Judge’s View.

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Commission or Court for Khalid Sheik Mohammed? Yes

Brookings Institution, October 29, 2010 Here’s a simple proposal to break the impasse over how to proceed against Khalid Sheik Mohammed and his colleagues: Press charges in both military commissions and in federal court. Call it the John Allen Muhammad model.

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Predator Drones, Targeted Killing, and the Law: A Debate with Mary Ellen O’Connell

October 25, 2010, Fordham Law School This is a debate I took part in with Mary Ellen O’Connell at International Law Weekend back in 2010. I wrote about it at some length in Lawfare in the days after it took place: In reading Mary Ellen O’Connell’s writings on targeted killing in preparation for our debate this weekend, I […]

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A Guantánamo Bay Habeas Corpus Case on Constitution Day

Brookings Institution, September 17, 2010 Today, to celebrate Constitution Day, I wandered down to the D.C. Circuit Court of Appeals to listen to oral arguments in a Guantánamo Bay habeas corpus case. Okay, I admit, I didn’t exactly go to celebrate Constitution Day. I went because the court was hearing a case in which I […]

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Designing Detention: A Model Law for Terrorist Incapacitation

Coauthored with Colleen A. Peppard, Brookings Institution, June 26, 2009 A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects. Over the past several years, non-criminal detention of Al Qaeda and Taliban captives at Guantánamo Bay, Cuba has sharply divided the American polity. Since the change […]

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President Obama Needs More Legal Tactics Against Terrorists

The Washington Post, May 14, 2010 It is a pincer action against the presidency — a bipartisan, cross-ideological effort to make it as difficult as possible to handle domestic national security emergencies. In an unfolding terrorism crisis, the political class attacks whatever means any administration uses to neutralize a major terrorist suspect. If the president plays […]

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What Supreme Court Nominee Elena Kagan Should Expect

The Washington Post, May 10, 2010 Elena Kagan, like the three sitting members of the Supreme Court whose nominations immediately preceded her, warrants confirmation in a matter of hours. Like John Roberts, Samuel Alito and Sonia Sotomayor, she is obviously smart, capable and well-qualified, and her views obviously fall within the diverse streams of thought […]

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Presumed Innocent? Representing Guantánamo Detainees

The New Republic, March 24, 2010 The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal […]

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Khalid Sheikh Mohammed’s Dispensable Trial

Co-authored with Jack Goldsmith, The Washington Post, March 19, 2010 The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. Both sides are busily ignoring the obvious solution: Don’t bother trying them […]

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Brookings Podcast: The Politics and Perils of Guantánamo

March 5, 2010 Opposition to trying alleged 9/11 mastermind Khalid Sheik Mohammed in civilian court has led the Obama administration to consider a military tribunal instead. Meanwhile, controversy continues over when, where and how to try terrorism suspects, and what to do with some 220 detainees who remain at Guantánamo Bay a year after President […]

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The Courts’ Shifting Rules on Guantánamo Detainees

Co-authored with Robert M. Chesney, The Washington Post, February 5, 2010 One judge rules that a detainee’s statements to his military review tribunal are tainted by past coercion — and orders him released. Within days, another judge rules that a detainee’s statements to the same sort of tribunal are not tainted, despite similar abuse — and affirms […]

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The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking

Brookings Institution, January 22, 2010 President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges must write the rules governing military detention of terrorist suspects. As the United States reaches the president’s self-imposed January 22, […]

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The Scouting Report Web Chat: President Obama’s Progress on Closing Guantánamo

Brookings Institution, December 2, 2009 The decision to try accused 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators in New York has brought renewed attention to the thorny problem of how to deal with the detainees at Guantánamo Bay. The announcement followed the Obama administration’s admission that it will not meet its self-imposed January 22, […]

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Legislating the War on Terror: An Agenda for Reform

9/11 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 new legal framework that reflects these new realities.

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Law and the Long War: The Future of Justice in the Age of Terror

America is losing a crucial front in the ongoing war on terror. It is losing not to Al Qaeda, but to its own failure to construct a set of laws that will protect the American people during this global conflict. As debate continues to rage over the legality and ethics of war, Benjamin Wittes enters […]

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President Obama’s Decision on Closing Guantánamo

The Washington Post, September 29, 2009 President Obama’s decision not to go to Congress for help in establishing reasonable standards for the continued detention of Guantanamo detainees is a failure of leadership in the project of putting American law on a sound basis for a long-term confrontation with terrorism. It is bad for the country, […]

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United States Detention Policy: Will Obama Follow Bush or FDR?

Co-authored with Jack Goldsmith, The Washington Post, June 29, 2009 Soon after the Sept. 11, 2001, attacks, the Bush administration faced a fateful choice about terrorist detainees: Should it get Congress on board, or go it alone? President George W. Bush bypassed the legislature and for seven years based U.S. detention policy on his own […]

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The Supreme Court Confirmation of Judge Sonia Sotomayor

The Washington Post, May 27, 2009 Only a few years ago, a Supreme Court nominee like Judge Sonia Sotomayor could expect quick, nearly unanimous confirmation. She is, after all, a long-serving appellate court judge who has also served on the district court bench, and she is qualified for the high court in every formal sense. […]

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Looking Forward, Not Backward: Refining American Interrogation Law

Coauthored with Stuart S. Taylor, Jr. Part of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, May 10, 2009 The worldwide scandal spurred by the abuse of prisoners in Abu Ghraib, Guantánamo, Afghanistan and secret CIA prisons during the […]

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The Best Judges Obama Can’t Pick

The Washington Post, May 3, 2009 What do Merrick Garland, David Tatel and Jose Cabranes have in common? All are sitting federal court of appeals judges who were nominated by Democratic presidents. All three are deeply admired by their colleagues and are among a small group of the very finest federal judges in the country. […]

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The Current Detainee Population of Guantánamo: An Empirical Study

Coauthored with Zaahira Wyne. Brookings Institution, December 16, 2008 The following report represents an effort both to document and to describe in as much detail as the public record will permit the current detainee population in American military custody at the Guantánamo Bay Naval Station in Cuba. Since the military brought the first detainees to […]

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Nuts and Deadbolts: A Blueprint for the Closure of Guantanamo Bay

Co-authored with Jack Goldsmith, Slate, December 8, 2008 President-elect Barack Obama has made clear that he will close the Guantanamo Bay detention center. Notwithstanding the news this morning that Khalid Sheik Mohammed and four others want to confess their guilt in the 9/11 plots, closing the Cuban detention center is easier said than done. Closing […]

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Wrenching Choices on Guantanamo

The Washington Post, November 21, 2008 Secretary of Defense Robert Gates came into office wanting to close the American detention operation at Guantanamo Bay, Cuba. Nearly two years later, Guantanamo is still there. Secretary of State Condoleezza Rice has said she wants to close it. Guantanamo will outlast her. Yet, to watch the post-election Democratic […]

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Eye To Eye: Closing Gitmo

CBS, November 14, 2008 Summary: Three possible strategies for the Obama administration to close the prison at Guantanamo Bay.

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One Side Only

Policy Review – Hoover Institution, October 1, 2008 Jane Mayer begins her new bestseller with a subtitle that, even before the book’s opening page, warrants a moment’s reflection: On The Dark Side’s cover appear the words: “The Inside Story of How the War on Terror Turned into a War on American Ideals.” Mayer’s subtitle pulls one […]

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Seven Years Later: Complacency

The New Republic, September 11, 2008 America has grown complacent, and how could it have done otherwise? For years, we have not felt the war our government insists remains a reality. We keenly feel two related wars, the ones in Iraq and Afghanistan. And the war on terror has certainly persisted as a legal reality, and in some sense also as a civic reality. […]

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Testimony on American Interrogation Policy in the War Against Terrorism

Testimony before the House Committee on the Judiciary, “American Interrogation Policy in the War on Terrorism,” July 17, 2008 Thank you, Mr. Chairman and members of the committee, for inviting me to testify concerning American interrogation policy in the war against terrorism. I am a Fellow in Governance Studies and Research Director in Public Law at […]

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How Do We Bring Osama Bin Laden to Justice? America is Clueless

NY Daily News, July 5, 2008 News flash: Osama Bin Laden and his deputy Ayman al-Zawahiri are captured in Pakistani tribal areas and turned over to American custody. What would happen next? Celebratory news stories, cries of a major victory in the war on terrorism – and total confusion. This is the shameful truth: Six […]

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Congress’s Guantanamo Burden

The Washington Post, June 13, 2008 The key words in Justice Anthony M. Kennedy’s Guantanamo opinion do not involve the history of habeas corpus, the territorial status of Guantanamo Bay or the accountability of the executive branch to the rule of law. They appear on the opinion’s penultimate page and are unlikely to attract much […]

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Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System

Testimony before the Senate Committee on the Judiciary, “Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System,” June 4, 2008 Thank you, Mr. Chairman and members of the committee, for inviting me to testify concerning what is probably the single most important unresolved legal policy challenge affecting America’s confrontation with international terrorism: The […]

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