by Gabriella Blum and Philip B. Heymann. Cambridge: The MIT Press, 2010. 232pp. Cloth $21.95. ISBN: 9780262014755
Reviewed by Samuel B. Hoff, Department of History, Political Science, And Philosophy, Delaware State University. Email: shoff [at] desu.edu.
Combining their actual government experience – Philip Heymann served as Deputy Attorney General in the Bill Clinton administration, while Gabriella Blum was a legal advisor to the Israeli Defense Forces – with common legal interests which led them to co-teach classes, these Harvard Law Professors collaborated on this work. They assert at the outset that “[i]t is for the most part a fallacy – although an oft-repeated one – that adherence to the rule of law and individual rights necessarily comes at the expense of security needs” (Preface, ix). They chide the George W. Bush administration for rejecting both domestic criminal law and international law while placing the United States on a permanent war footing in the nation’s fight against terrorism. Arguing that the coercion of the “no-law zone” practiced by Bush personnel has been ineffective, Blum and Heymann promote a “third paradigm” which emphasizes practicality and balance while still preserving liberal democratic traditions.
The book is structured in three parts. Part I, containing the first three chapters, applies domestic and international law to the fight against terrorism. In Chapter 1, the authors contend that President George W. Bush weakened the rule of law by not seeking authority for actions from Congress or practicing civil disobedience. Instead, the Bush White House engaged in unwarranted secrecy, supported abusive interrogations, and ignored warnings about violations. Chapter 2 weighs the impact of international law on U.S. actions in combating terrorism. Though there are always some violations of the laws of war during prolonged conflict, critics accuse the George W. Bush administration of a pick-and-choose strategy when it came to adhering to tenets of international law. The result was not only allegations of hypocrisy, but the specter of certain European governments facing lawsuits for following American policy. Chapter 3 offers a detailed case study at how the Bush White House solicited and utilized legal opinions on conducting surveillance following the attacks of September 11, 2001.
In Part II, which includes Chapters 4 through 6, Blum and Heymann examine the manner by which the United States exercised coercive techniques to preserve security and engage in counterterrorism measures. For example, in Chapter 4 the recent history of targeted killings or an assassination policy by the American national government is reviewed. According to the authors, there are a plethora of hazards of such a policy, including the prospect that tit-for-tat killing will lead to a spiraling level of violence. Chapter 5 covers detention of supposed enemy combatants and outlines objections which presidents and their staffs have toward employing criminal [*642] law procedures to adjudicate suspected terrorists. Chapter 6 delineates the Bush administration policy of interrogation of enemy combatants and contrasts it with that announced by the Barack Obama administration. Though the Bush team ignored the costs of torture and eschewed alternatives to it, the Obama White House emphasized that putting an end to torture was necessary in order to recoup U.S. values.
Though offering advice at the end of previous chapters, the authors move from an objective portrayal to a prescriptive counterterrorism strategy in Part III. In Chapter 7, they comprehensively evaluate the advantages and disadvantages of negotiating with terrorists, concluding that doing so may be beneficial if such contact leads to either a transformed relationship between a terror group and a government or holds the promise of ending a prolonged conflict altogether. In Chapter 8, the authors illustrate how reducing the moral support for terrorism must begin with recognition of and tolerance for cultural differences between the West and the Muslim world
In the Conclusion, Blum and Heyman propose countering the irrational, contagious, and disproportionate fear that terrorist attacks often produce through a balanced, reasoned approach, one which is consistent with principles of domestic and international law and which is based on the long-term consequences of decisions. They emphasize the role that citizens must play in preparing for and responding to terrorist activities: “In the event of a new attack, President Obama and his successors must similarly convey to the American people that they expect no less from us than calm, resolve, courage, and continuing commitment to the values and relationships we cherish” (p.193).
Over the last six years, three books have been published which examine counterterrorism measures from broad legal and constitutional perspectives. In his 2005 edited book, Peter Berkowitz brings together several articles which assess the status of enemy combatant cases. In his 2008 study of the manner by which the Bush administration reacted to the 9-11 terrorist attacks, James P. Pfiffner covers issues such as torture, habeas corpus, and surveillance. Benjamin Wittes assesses areas encompassing detention, interrogation, habeas corpus, and preemption in his 2009 book. Of these books, both Pfiffner and Wittes’ study match Blum and Heymann as far as the diversity of topics analyzed, Wittes is much more even-handed in portraying counterterrorism policies pursued by the George W. Bush administration than either Pfiffner or the present pair. For those considering length for class use, the Pfiffner study is closest to the present book in the number of chapters, though Berkowitz’s edited work is closest to the current text as far as length.
The Blum-Heymann text does have a few shortcomings. For instance, the speculative references to Osama Bin Laden in the Introduction and in Chapter 8 are erroneous, as the mastermind of the 9-11attacks was killed in a May 1, 2011 raid on his compound in a small town in Pakistan, not in the tribal region between Pakistan and Afghanistan. Second, while the authors’ prescriptions for dealing with interrogations and negotiating with terrorists are fairly clear, the advice about utilizing targeted killings is inconsistent with the evidence presented in text, [*643] whereas their suggestion for how to treat detainees in the criminal justice process is contrary to current trends and administration announcements. Finally, it is ironic that the co-authors--distinguished law professors both – eschew extended commentary on legal cases emanating from several counterterrorism tactics in favor of a series of pro-con lists. While that feature makes the material easier to comprehend in most situations, the reader is left wondering about the impact of recent court decisions.
Despite the repeated references to “third paradigm,” the authors’ attempt at a cohesive set of reactions to terrorism is less than a connected whole. However, that is not a weakness, for they have largely identified realistic steps to contemplate which exist between the extremes of wartime and peacetime environments and the legal and policy norms which accompany them. By discussing ways to reduce moral support for terrorism, they have introduced a creative concept which has been neglected by previous contemporary studies on the same subject. Read together with Witte’s call for across-the-board institutional accountability for American counterterrorism measures, Blum and Heymann offer an achievable and acceptable approach to fighting a perpetual menace.
Berkowitz, Peter, ed. 2005. Terrorism, the Laws of War, and the Constitution. Stanford, CA: Hoover Institution Press.
Pfiffner, James P. 2008. Power Play: The Bush Presidency and the Constitution. Washington, DC: Brookings Institution Press.
Wittes, Benjamin. 2009. Law and the Long War: The Future of Justice in the Age of Terror. New York: Penguin.
© Copyright 2011 by the author, Samuel B. Hoff.