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 Guantanamo 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 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 discomfit and ignite debate, Law and the Long War is the first non-ideological argument about a controversial issue of vital importance to all Americans.

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