Benjamin Wittes

Benjamin Wittes is a Senior Fellow in Governance Studies at the Brookings Institution, where he is the Research Director in Public Law, and Co-Director of the Harvard Law School - Brookings Project on Law and Security. He works principally on issues related to American law and national security. Along with Robert M. Chesney and Jack Goldsmith, Wittes cofounded the Lawfare Blog, which is devoted to the nonideological discussions of hard U.S. national security choices. Wittes is also a member of the Hoover Institution's Task Force on National Security and Law. Wittes is a frequent speaker on topics of detention, interrogation, and national security, before academic, government, policy, and military audiences.

Career

Though Wittes writes almost exclusively about law, he is not a lawyer. Rather, he is a journalist by background. From 1997 to 2006, he was an editorial writer for The Washington Post concentrating on legal affairs. Before that, he covered the U.S. Justice Department and federal regulatory agencies for Legal Times.

Wittes has written for a wide range of publications,including The Atlantic and The New Republic for which he wrote regular columns, and Slate, Wilson Quarterly, The Weekly Standard, Policy Review, and First Things.

Books

Wittes has written or edited seven books:

• Campaign 2012: Twelve Independent Ideas for Improving American Foreign Policy (2012). Campaign 2012 provides short analysis of twelve of the most pressing policy issues facing America today. Wittes edited Campaign 2012, and also contributed a chapter with Daniel L. Byman on how the next U.S. president should continue fighting al Qaeda while improving relations with Congress over terrorism policy.
• Constitution 3.0, Freedom and Technical Change], edited with Jeffrey Rosen (2011). Constitution 3.0 details how technological changes that were unimaginable at the time of the Founding Fathers are challenging our notions of things like personal vs. private space, freedom of speech, and our own individual autonomy. Wittes also contributed a chapter on biosecurity, technologies of mass empowerment, and the Constitution.
• Detention and Denial: The Case for Candor after Guantánamo (2010). In Detention and Denial, Wittes writes about how U.S. detention policy is a tangle of obfuscation, rather than a conscious serious set of moral, legal, and policy choices. He writes about the need for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices, and greater citizen awareness of the same.
• Legislating the War on Terror: An Agenda for Reform (2009). Legislating the War on Terror presents an agenda for reforming the statutory law governing counterterrorism and U.S. national security, balancing the need for security, the rule of law, and the constitutional rights that protect American freedom. Wittes both edited Legislating the War on Terror, and contributed to a chapter with Stuart Taylor Jr., on refining interrogation law.
• Law and the Long War: The Future of Justice in the Age of Terror (2008). In Law and the Long War, Wittes analyzes 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.
• Confirmation Wars: Preserving Independent Courts in Angry Times, Rowman & Littlefield (2006). In Confirmation Wars, Wittes addresses the transformations the judicial confirmation process has undergone in recent times. He argues that these changes should not be understood principally in partisan terms, but as an institutional response on the part of the legislative branch to the growth of judicial power over the previous five decades.
• Starr: A Reassessment, Yale University Press (2002). Through ten hours of interviews with the controversial former independent counsel, Wittes examines the role that Ken Starr played in implementing the independent counsel statute and investigating the Clinton scandals. Wittes argues that Kenneth Starr should be best understood as a decent man who fundamentally misconstrued his function under the independent counsel law.

Additional Publications

In addition to his books and shorter writing, Wittes has produced a number of reports and monographs:

• Against a Crude Balance: Platform Security and the Hostile Symbiosis Between Liberty and Security (September 21, 2011). In “Against a Crude Balance”, Wittes argues that we should think of liberty and security as existing in a kind of a “hostile symbiosis” with one another—that is, mutually dependent and yet also, under certain circumstances, mutually threatening.
• “The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking” with Robert Chesney, Larkin Reynolds, and the Harvard law School National Security Research Committee (May 12, 2011). “The Emerging Law of Detention 2.0” describes in detail and analyzes the district and appellate courts’ work on defining the rules of military detention, to date—and thus maps the contours of the nascent law of non-criminal counterterrorism detention that are emerging from the Guantanamo habeas cases.
• “Databuse: Digital Privacy and the Mosaic” (April 1, 2011): In “Databuse,” Wittes explores the possibility that technology’s advance and the proliferation of personal data in the hands of third parties has left us with a conceptually outmoded debate over the protection of personal information, one whose reliance on the concept of privacy does not usefully guide the public policy questions we face.
• “Rationalizing Government Collection Authorities: A Proposal for Radical Simplification” with Wells Bennett and Rabea Benhalim (January 7, 2011). In “Rationalizing Government Collection Authorities,” Wittes looks at part of the problem of regulating privacy—the problem of access by government investigators to individuals’ personal data stored in the hands of third parties and the inconsistent patchwork of laws that currently governs this sort of collection.
• “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking” with Robert Chesney (January 22, 2010). “The Emerging Law of Detention” describes the enormous diversity of opinion among the lower court judges to whom the inactivity of the Supreme Court, Congress, and the Executive Branch had effectively delegated the task of writing the law of detention.
• "The Current Detainee Population of Guantánamo: An Empirical Study" with Zaathira Wyne (December 16, 2008). The “Current Detainee Population of Guantanamo” documents and describes in as much detail as the public record would then permit, the detainee population in American military custody at the Guantánamo Bay Naval Station in Cuba as of 2008.

Major Issues and Controversies

Wittes has played a role in a number of major controversies over the course of his career. He faced criticism, for example, for positions he took concerning Ken Starr in his book Starr: A Reassessment and in Washington Post editorials he was presumed to have written. His views were badly received by those who wanted to paint Starr in a less generous light. Similarly, Wittes was understood to be the voice behind the Washington Post’s support of controversial Bush era judicial nominees, including John Roberts, Samuel Alito, and Miguel Estrada.

More recently, he has been voice in favor of legislation to authorize and regulate non-criminal detention in certain counterterrorism cases--a position that has put him at odds with human rights and civil liberties groups but which the Obama administration has effectively embraced. On the other hand, in 2010, Keep America Safe, an advocacy group headed by Liz Cheney released an online ad casting suspicion on Justice Department lawyers who had previously represented Guantanamo detainees. In response, Wittes wrote a letter, signed by more than 20 prominent lawyers--mostly conservatives--calling the ad “shameful." The letter states,

To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

Since the creation of The Lawfare Blog, there have been a number of back-and-forths with prominent commentators, advocates, and scholars—some of them less substantial than others. Wittes has written, for example, that, while he opposes the publication of classified United States documents by whistleblowers on the document archive website WikiLeaks, he

"actively want[s] more Chinese secrets revealed against the will of the Chinese government. Indeed, were Wikileaks spending more of its time undermining authoritarianism and less of its time undermining democracies, I might admire it. And I would find outrageous efforts by foreign governments to require American news outlets to keep their secrets for them. I’m not against double standards in all circumstances, so it’s possible that the right answer here is hypocrisy: Doing what we need to do and objecting when other countries do the same."

Responding to this statement, Melbourne Law School professor Kevin Jon Heller accused Wittes of preaching "American exceptionalism in full bloom."

Personal life

Wittes was born November 5, 1969 in Boston, Massachusetts, and graduated from Oberlin College in 1990. He is married to Tamara Cofman Wittes.