The Legal Theory Bookworm recommends Law and the Long War: The Future of Justice in the Age of Terror by Benjamin Wittes. Here is a description:
Six years after the September 11 attacks, 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—its military and executive branch, as well as its citizens—in the midst of a conflict unlike any it has faced in the past. Now, in the twilight of President Bush’s administration, Brookings Institution fellow Benjamin Wittes offers a vigorous analysis of the troubling legal legacy of the Bush administration as well as that of the U.S. Congress and the Supreme Court. Law and the Long War tells as no book has before the story of how America came to its current impasse in the debate over liberty, human rights, and counterterrorism and draws a road map for how the country and the next president might move forward.
Moving beyond the stale debate between those fixated on the executive branch as the key architect of counterterrorism policy and those who see the judiciary as the essential guarantor of liberty against governmental abuses, Wittes argues that the essential problem is that the Bush administration did not seek—and Congress did not write—new laws to authorize and regulate the tough presidential actions this war would require. In a line of argument that is sure to spark controversy, Wittes reveals an administration whose most significant failure was not that it was too aggressive in the substance of its action, but rather that it tried to shoulder the burden of aggressiveness on its own without seeking the support of other branches of government. Using startling new empirical research on the detainee population at Guantánamo Bay, Wittes avers that many of the administration’s actions were far more defensible than its many critics believed and actually warranted congressional support. Yet by resisting both congressional and judicial involvement in its controversial decisions, the executive branch ironically prevented both of those branches from sharing in the political accountability for necessary actions that challenged traditional American notions of due process and humane treatment.
Boldly offering a new way forward, Wittes concludes that the path toward fairer, more accountable rules for a conflict without end lies in the development of new bodies of law covering detention, interrogation, trial, and surveillance. Sure to discomfort and ignite debate, Law and the Long War is the first nonideological argument about a controversial issue of vital importance to all Americans.
And from the L.A. Times review:
"Law and the Long War" addresses an impressively broad range of questions, but its greatest shortcoming is Wittes’ failure to fully and fairly plumb whether U.S. criminal law already offers the best possible solutions to the problems he raises. As Georgetown University law professor David Cole notes in a recent essay in the New York Review of Books, Britain has successfully prosecuted all manner of jihadist conspiracy plots through its criminal courts, with numerous groups of defendants sentenced to long prison terms. Cole suggests that the British approach has been informed first and foremost by long and bloody experience — 1,800 deaths and 20,000 injuries — with repeated terrorist attacks by the Irish Republican Army in decades past. Today, Britain’s multicultural population offers vastly more candidates for terrorist recruiters than does the United States, but at present the only debate there is over the maximum length of detention before a suspect must be formally charged, in stark contrast to the U.S. legal morass that Wittes hopes to resolve.