Coauthored with Wells C. Bennett How much does the relationship between individuals and the companies in which they entrust their data depend on the concept of “privacy?” And how much does the idea of privacy really tell us about what the government does, or ought to do, in seeking to shield consumers from Big Data […]
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Reforming the NSA: How to Spy After Snowden
Coauthored with Daniel Byman, Foreign Affairs, May-June 2014 The long-running debate over the tradeoffs the United States should make between national security and civil liberties flared up spectacularly last summer, when Edward Snowden, a National Security Agency contractor, handed journalists a huge trove of heavily classified documents that exposed, in excruciating detail, electronic surveillance programs […]
Ode on a Video Game
I wrote this poem as part of the “Ode Off,” a friendly ode-writing competition with my friend Hannah Neprash. Each of us assigned the other a news story on which we had to write an ode within 48 hours. Hannah assigned me this New York Times story about the potentially salutary effects of video games […]
Tools and Tradeoffs: Confronting U.S. Citizen Terrorist Suspects Abroad
Coauthored with Daniel Byman By its very name, the Hellfire missile promises to visit Biblical wrath upon those on its receiving end. On September 30, 2011, it delivered just that to Anwar Awlaki, the U.S.-born preacher and an operational leader of Al Qaeda in the Arabian Peninsula (AQAP), who had plotted repeated attacks from his […]
A Recursive Sonnet
I don’t normally write poetry, but many years ago, in reading Keats, I noticed a quirk in the title of one of his sonnets. For 20 years or so, I have meant to write a sonnet about it. I finally got around to it recently.
On Wikipedia, Lawfare, Blogs, and Sources
Coauthored with Stephanie Leutert A large, powerful organization with enormous influence over public debate is stifling discussion of an important national security issue. It has censored emerging ideas by prominent intellectuals and practitioners in the field. It makes irrational, outdated choices about what sources constitute acceptable reading for the public’s delicate eyes. Its conservatism about […]
How Obama Decides Your Fate If He Thinks You’re a Terrorist
Coauthored with Daniel Byman, The Atlantic, January 3, 2013 Over the past two years, the Obama administration has begun to formalize a so-called “disposition matrix” for suspected terrorists abroad: a continuously evolving database that spells out the intelligence on targets and various strategies, including contingencies, for handling them. Although the government has not spelled out […]
Two Parties, One Policy
Coauthored with Ritika Singh, Commonweal Magazine, September 14, 2012 Political parties in the United States, like a spatting couple in a bad marriage, have been fighting over the law of counterterrorism for more than a decade. And like the spatting couple, they have developed an almost rote script for their fight. The script has a […]
How Far Did Roberts Really Stray?
Brookings Institution, June 28, 2012 It was always easier to count to five for an opinion upholding the Affordable Care Act than for one striking it down. In order to strike it down, all five of the high court’s conservatives would have to be rock-solid, they would have to stand together on everything. If one […]
Will Military Commissions Survive KSM?
The Washington Post, May 3, 2012 When Khalid Sheik Mohammed and four others are arraigned Saturday in a military commission at Guantanamo Bay on charges of orchestrating the Sept. 11, 2001, attacks, it will be the public’s first glimpse in several years of the 9/11 mastermind. The event holds the promise of long-delayed justice and […]
Regulating Domestic Drones on a Deadline
Coauthored with John Villasenor. The Washington Post, April 20, 2012. In February, President Obama signed into law a reauthorization of the Federal Aviation Administration (FAA) that requires the agency — on a fairly rapid schedule — to write rules opening U.S. airspace to unmanned aerial vehicles. This puts the FAA at the center of a […]
ConText: An Experiment in Crowd-Sourced Commentary
Brookings Institution, March 16, 2012 What do the Constitutional Convention, the Talmud, and Wikipedia have in common? That’s the question behind a new project Brookings has launched in partnership with the Center for the Constitution at James Madison’s Montpelier. The project, about which I am deeply excited, is at one level an attempt to bring […]
How the Next 10 Years of Guantanamo Should Look
The Washington Post, January 11, 2012 In a decade of policy experimentation at Guantanamo, some efforts have succeeded, some have failed tragically and some are still in process. But far more interesting than the past 10 years is what the next 10 will look like. And that subject seems oddly absent from the current conversation.
Drones Are a Challenge — and an Opportunity
Coauthored with Ritika Singh, Cato Unbound, January 11, 2012 David Cortright crafts his essay as a series of cautionary warnings about the rise of drone warfare, but his core argument goes far deeper than drones: Cortright objects to drones, which promise unprecedented levels of humanitarian protection of civilians, chiefly because they facilitate the effective use […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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.
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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, […]
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, […]
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 […]
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. […]
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. […]
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 […]
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 […]
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 […]
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. […]
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 […]
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 […]
State of Civil Unions: California Court Strikes Down Marriage Ban
The New Republic, May 20, 2008 “Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president,” the Obama campaign stated oh-so-carefully in response to this week’s California Supreme Court decision striking down the state’s ban on gay marriage.” He […]
Unusual Nonsense: Supreme Court’s Decision about “Cruel and Unusual Punishment”
The New Republic, April 28. 2008 The Supreme Court recently gave the country an object lesson in the absurdity of the Eighth Amendment – at least, as it is currently understood by the justices. On a single day, it handed down a decision upholding as constitutional the specific mixture of drugs by which thirty states […]
John Yoo Interrogation Memo
The New Republic, April 8, 2008 The disclosure of the former Bush administration lawyer John Yoo’s “torture memo” this week was, in most senses, an exercise less in news than in archaeology. The public has long known the memo existed. And it has also known, in broad strokes, what it says: that military interrogators aren’t […]
What Happens If the Supreme Court Recognizes Individual Gun Rights? Not Much.
The New Republic, March 21, 2008 One thing seemed clear from Tuesday’s Supreme Court oral arguments in District of Columbia v. Heller: The justices are poised to recognize that the Second Amendment confers on individual Americans the right to own guns. The court’s conservatives–save Justice Clarence Thomas, who maintained his customary silence at arguments–evinced little […]
Trial by Fire: How Military Commissions Work and Why They Fail
The New Republic, February 14, 2008 At long last, one way or another we’re about to learn a great deal about military commissions. The charges prosecutors filed Monday against Khalid Sheikh Mohammed and five other alleged September 11 conspirators cannot proceed credibly to trial in anything less than a viable court system. The evidentiary questions […]
Mukasey Has the Capacity to Be a Great Attorney General, But Not the Time
The New Republic, January 31, 2008 Attorney General Michael Mukasey frustrated Democrats yesterday when he refused, again, to tell the Senate Judiciary Committee whether water-boarding counts as torture or is otherwise prohibited by law. At the committee hearing, he declared the question hypothetical, since the CIA no longer uses the tactic. And he declared as […]
Gun Shy: The Justice Department Weighs in on the Second Amendment
The New Republic, January 25, 2008 Shortly after taking office, the Bush administration dropped a love bomb on gun rights enthusiasts nationwide. In May 2001, then-Attorney General John Ashcroft wrote a letter to the National Rifle Association stating “unequivocally my view that the text and the original intent of the Second Amendment clearly protect the […]
The Death Clock: Don’t Count Out the Death Penalty Yet
The New Republic, January 7, 2008 These are heady days for anti-death penalty activists. New Jersey has taken the plunge and legislatively repealed capital punishment–becoming the first state in the modern era to do so. Today, the Court will hear arguments over whether the specific drug cocktail used in lethal injections constitutes cruel and unusual […]
Detention Retention: Are Guantanamo Detainees All Innocent?
The New Republic, December 7, 2007 Seth Waxman, arguing on behalf of 37 detainees at Guantanamo Bay, Cuba, told the Supreme Court Wednesday that each of these men “maintains, as this Court explained [in an earlier case] that he is quote ‘innocent of all wrongdoing.’” Waxman, a former solicitor general, is the kind of oral […]
The Mukasey Ultimatum
The New Republic, October 27. 2009 At his recent Judiciary Committee confirmation hearing, would-be attorney general Michael Mukasey sounded at times positively Alberto Gonzales-like. Pressed on whether waterboarding, an interrogation technique in which interrogators strap the subject to a plank and pour water over his face to create the sensation of drowning, counts as torture, […]
The Democrats and Bush Don’t Really Disagree Much on FISA
The New Republic, October 15, 2007 For all the fire-breathing rhetoric we can expect to hear about modernization of the Foreign Intelligence Surveillance Act in the coming months, last week’s introduction by House Democrats of their bill on the subject makes one thing abundantly clear: The Democrats and the Bush administration aren’t very far apart.
Benjamin Wittes 