Legal policy for a twilight war.

All these suggestions can be criticized as a time consuming, academic effort for which there was no time during the threatening days of 2002 and beyond. Yet, if the problem had been properly framed, the analytical effort suggested here could have been done quite rapidly, in days or weeks. And there were months and years to deepen understanding. To get some perspective, also reflect a moment on the effort private firms will devote to the analysis of far less consequential matters, from acquiring a company to building a refinery.

My hypothesis is that the problem was not properly framed, and that lawyerly interpretation was often substituted for thorough policy analysis at the critical and formative subcabinet and expert level. The result produced a situation in which cabinet principals, and the President, were not well served--even if at the time they thought they were getting what they wanted in those very anxious days. In time, perhaps, more information will allow a firmer judgment on whether my hypothesis is correct.

V. THE TRANSITION OF THE AMERICAN APPROACH DURING 2006

This process of transition was spurred on by congressional action, especially the role of John McCain and by the Supreme Court's decision last year. (29) But the transition was already well underway in 2005, and all the main options had been fully developed before the Supreme Court ruled.

The U.S. government has made a comprehensive adjustment in its approach to the conduct of the armed conflict and associated operations against violent Islamist extremist groups such as al Qaeda.

The public debate is still dominated by lawyers, arguing over the details of the legislation passed last year. But it is important to recognize all of the elements of the policy change embedded in and surrounding President Bush's more narrowly focused September 2006 address. (30) I'll list just nine of the elements in this new paradigm.

1. The decision that we need a sustainable policy for the long haul built on partnership: domestically with the Congress; internationally with allies and partners.

2. A new and public Army field manual and DOD directive providing baseline policies for the detention and treatment of captured terrorists.

3. A new approach to military commissions, already underway before the Supreme Court's decision and then informed by it as well.

4. Employing those military commissions for major war criminals and al Qaeda's leaders, not Usama's driver. (31) These commissions will finally bring the 9/11 conspirators to justice and, I hope, usher in a process where America will be reminded what the struggle is really about.

5. The decision announced in the East Room of the White House that America does intend to close Guantanamo. (32) The glide path is necessarily lengthy and difficult, working on problems involving thirty three different countries, many of whom don't want their people back. There are still decisions to be made about how to replace and improve the Guantanamo detention system.

6. The vital decision to disclose and explain a particular CIA interrogation program, implicit in the decision to bring the 9/11 conspirators to justice (and one reason that decision was so difficult for the administration).

7. The decision to transition such a special interrogation program so that it has different capabilities, different goals, and different methods. Guidelines for future treatment of such captives will be developed in consultation with Congress so that the Executive can sustain an important intelligence collection program for the future.

8. Putting the program in a more durable legal framework. Such a framework reiterates America's commitment against torture, but also accepts, as a minimum standard, that America will adhere to common Article III of the Geneva Conventions. (33)

--Incidentally, the legislation passed in 2006 did not reinterpret the meaning of the terms in Article III. Congress, and the United States, do not have the authority to reinterpret such international treaty terms unilaterally. The legislation did clarify the relation between those binding treaty provisions and the scope of federal criminal liability for violating them, specified in Title 18 of the U.S. Code. (34)

9. An offer to foreign governments, telling them that the U.S. government has listened to their concerns and challenging them to work with us on what President Bush called "a common foundation to defend our nations and protect our freedoms." (35)

The work of now building a more viable coalition, at home and abroad, is well begun. Foreign governments are now quietly wrestling with hard questions they had hitherto avoided, and in turn, posing hard questions to American officials about the scope and character of their policies.

This process is healthy. With this framework, and the predictable policy and political deliberations that are already unfolding, the United States has an excellent opportunity to develop a durable and effective legal policy approach for worldwide operations against Islamist terrorist groups. To keep the pendulum from swinging too hard back and forth, America's leaders need to strike the right policy balance, avoiding an unconscious slide back toward the magnetic poles of absolutist legal propositions.

(1.) See Extraordinary Rendition, Extraterritorial Detention, and Treatment of Detainees: Restoring Our Moral Credibility and Strengthening Our Diplomatic Standing: Hearing Before the Senate Foreign Relations Comm., 110th Cong. (2007), available at http://www.senate.gov/~foreign/testimony/2007/ZelikowTestimony070726.pdf (testimony of Philip Zelikow).

(2.) Indictment of Usama Bin Ladin, United States v. Usama Bin Laden, 98 Cr. (S.D.N.Y. Nov. 4, 1998) (indictment does not list traditional case number).

(3.) NAT'L COMM'N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT 108-20, 126, 132-134, 139, 142-43 (2004).

(4.) See id. at 115-16, 190 (discussing the Aug. 7, 1998 bombings of the U.S. embassies in Kenya and Tanzania and the Oct. 12, 2000 attack on the USS Cole in the Yemen port of Aden which killed 17 crew members).

(5.) See id. at 47-48 (citing Jihad Against Jews and Crusaders: World Islamic Front Statement, AL QUDS AL ARABI (London), Feb. 23, 1998, at 3, translation at http://www.fas.org/irp/world/para/docs/980223-fatwa.htm); Usama Bin Ladin, Declaration of War Against the Americans Occupying the Land of the Two Holy Places, Aug. 23, 1996, translation at http://www.globalsecurity.org/security/ profiles/osama_bin_laden_declares_jihad_text.htm.

(6.) David Johnston, C.I.A. Tells of Bush's Directive on the Handling of Detainees, N.Y. TIMES, Nov. 15, 2006 at A14; Barton Gellman & Jo Becker, The Unseen Path to Cruelty, WASH. POST, June 25, 2007.

(7.) See Larry O. Natt Gantt, II, Deconstructing Thinking Like a Lawyer: Analyzing the Cognitive Components of the Analytical Mind, 29 CAMPBELL L. REV. 413, 440-41 (2007) (confirming that most law students follow the style of writing known as IRAC, in which he or she identifies the issue, states the rule pertaining to that issue, analyzes the given facts according to the rule, and comes to a conclusion).

(8.) Henry S. Richardson, Moral Reasoning, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., 2007), available at http://plato.stanford.edu/ entries/reasoning-moral/ (defining moral reasoning as a form of practical reasoning, in which one determines a question involving right or wrong, virtuous or vicious, and then acts on his or her determination).

(9.) See, e.g., JAMES Q. WILSON, THE MORAL SENSE 247-49 (The Free Press 1993); EDMOND CAHN, THE MORAL DECISION: RIGHT AND WRONG IN THE LIGHT OF AMERICAN LAW 190 (Ind. Univ. Press 1955).

(10.) See STANDARDS FOR APPROVAL OF LAW SCH. [section] 302(a)(5) (2007), available at http://www.abanet.org/legaled/standards/20072008StandardsWebContent/Chapter %203.pdf (requiring law schools to instruct students in "the history, goals, structure, values, rules and responsibility of the legal profession and its members"); Leonard M. Niehoff, The Lessons of Legal Ethics, CHRON. OF HIGHER EDUC., May 12, 2006, at 5 (describing law students' understanding in a legal ethics class that attorneys may need to compromise personal morality in order to fulfill professional obligations).

(11.) See generally JOHN YOO, WAR BY OTHER MEANS (2006).

(12.) Robert Looney, Economic Costs to the United States Stemming From the 9/11 Attacks, STRATEGIC INSIGHTS, Aug. 2002, http://www.ccc.nps.navy.mil/si/ aug02/homeland.asp.

(13.) NAT'L COMM'N ON TERRORIST ATTACKS UPON THE U.S., supra note 3, at 71-76 (covering the indictments in connection with the explosion of Pam Am Flight 103 over Lockerbie, Scotland in 1988, the World Trade Center bombing in 1993, and the Manila air plot in 1995); Indictment of Usama Bin Ladin, United States v. Usama Bin Laden, 98 Cr. (S.D.N.Y. Nov. 4, 1998) (indictment does not list traditional case number).

(14.) See Joseph P. "Dutch" Bialke, Al-Qaeda & Taliban Unlawful Combatant Detainees, Unlawful Belligerency, and the International Laws of Armed Conflict, 55 A.F. L. REV. 1, 32 (2004) (explaining how the Taliban helps and supports foreign al Qaeda terrorists' entry into Afghanistan).

(15.) See generally YOO, supra note 11; JACK GOLDSMITH, THE TERROR PRESIDENCY (2007).

(16.) GOLDSMITH, supra note 15, at 164-65. See generally Memorandum from Daniel Levin, Acting Assistant Attorney Gen., to James B. Comey, Deputy Attorney Gen. (Dec. 30, 2004), available at http://hei.unige.ch/~clapham/hrdoc/docs/ dagmemo.pdf (superseding the memorandum of Aug. 1, 2002 and defining new limits for the term "torture").