Wittes and other moderate-minded experts of diverse political views appear to agree on the need for policy makers to find a middle course between the Bush and Amnesty International extremes. The best hope for moving toward a decent detainee policy is for the winner of the 2008 presidential election, and the 111th Congress, to look to such experts for guidance.
These experts include (among others) Jack Goldsmith of Harvard Law School, one of the few high-level Bush Justice Department officials handling terrorism issues to leave with his reputation intact; former Clinton Justice Department officials including Walter Dellinger of Duke Law School and Neal Katyal of Georgetown Law School; Elisa Massimino, Washington director of Human Rights First; Kenneth Anderson of American University Washington College of Law; and Curtis Bradley of Duke Law School, who served in the Bush State Department.
Then there is Bill Clinton, who would make a perfect chairman for a national commission on detainee treatment. In a little-noticed National Public Radio interview last fall, the former president outlined a sensible approach to the hypothetical interrogation of a captured terrorist mastermind who is thought to know the plans for an imminent attack:
"You don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding ... if they really believe ... the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of him, then they can present it to the Foreign Intelligence [Surveillance] Court, or some other court, just under the same circumstances we do with wiretaps. Post facto.... But I think if you go around passing laws that legitimize a violation of the Geneva Convention and institutionalize what happened at Abu Ghraib or Guantanamo, we're going to be in real trouble."
Even the wisest experts on these issues disagree about many things—most of all, perhaps, about whether federal courts should have the power (denied by the Military Commissions Act) to hear full-fledged habeas corpus challenges to the military's detention or treatment of non-Americans captured overseas. But many of them appear to agree about some big things:
"Deferential [judicial] review of anemic procedures yielding decisions with enormous consequences for the liberty of individuals captured under murky circumstances," as the forthcoming Wittes article asserts, "is not a recipe either for justice or for public confidence in American prosecution of the war on terror in the long run."