Benjamin Wittes (BW)—[00:00:24:00] Yes. So, I mean you already see that in the counter-terrorism space. And, look, state-to-state conflict has not gone away from the world. So, I, you know...but, one thing that networked computers, networked, you know, cheap air travel...Right? International air travel. All these, you know...telecommunications...all these things have given us is the ability of very small groups of individuals to exert force against very powerful states. You know, that’s the subject of Philip Bobbit’s book, Terror and Consent, and it’s also the subject of this guy’s book [holds up John Robb’s Brave New World]...this is an excellent little, it’s a great little read, actually.

And, the converse of that is that groups of people whom we have traditionally thought of as criminals, we now think of in a more military context. And, part of that is because they’re acting like it. That is, you know, they do things that we think of as ‘Acts of War.’

Part of it is that they act from places that we cannot project power in the form of the criminal justice apparatus. So, you know, in order to arrest somebody, you need to have some degree of physical control and jurisdiction. Right? If you think about it in legal terms, the concept is jurisdiction over the place in which they’re operating. Right?

So, if somebody is in Yemen, in a part of Yemen that is not really a governed space, well, you can issue criminal process to, you know, an arrest Warrant. And you may be able to send some FBI agents to Yemen. But, there’s kind of a limit to what you can do.

And there [is] this group of people that are kind of waging war against us and who are in physical locations in which the only plausible way to reach them is through instrumentalities we tend to associate with the projection of military force rather than the projection of criminal justice force. And so, all of that does tend to cause a convergence of military and criminal authorities in ways that even 25 years ago were...would have been very surprising.

[00:03:24:01] Does the convergence of military power & prosecuting criminal law, with the reality of terrorism across borders, threaten our ideas & traditions of the limits of domestic government power?

[00:03:32:16] You know, there’s been a lot of talk about that. But, the reality has not gone in that direction...though it’s been talked about a lot.

So, there’s been no act of military force worth talking about on US soil in connection with counter-terrorism. Right? There’s been three people, one of whom was actually captured abroad, so only two people who were captured domestically who were treated outside the criminal justice system. Both of them were returned to the criminal justice system after some period in military custody because it kind of didn’t work.

—[José] Padilla and [Ali Saleh Kahlah] al-Marri.—

So, both of them are now in federal prison. And, the Obama Administration has made clear that it, at least, will never hold, will use the criminal justice system exclusively for domestic captures.

So, you know, I think there’s—and I doubt very strongly that any subsequent administration, at least in the near term, without some change in legal structure, would revisit that.

So, I mean, I think what you can say is that the Bush Administration had a relatively brief experiment with treating the domestic space as battlefield. It was brief and very tentative. It migrated away from it. The Obama Administration has show no interest that as a premise. And, yes, there is some open legal question as to whether there’s legal space in which to do it.

I think we’re moving away from that, actually. I think we’re moving toward a model in which we use criminal justice authorities pretty exclusively domestically. We use...military authorities and covert intelligence authorities very aggressively beyond the shores of the United States but not in allied countries with functioning legal systems.

So, in other words, if you’re in the United...if you’re attacking the United States from Afghanistan, we’re going to blow you up, if we can. And, we may even do that, if you’re a US citizen. But, if you’re in Paris and you’re attacking the United States, we’re going to pick up the phone and  call the French police and ask them to arrest you.

And so, a big part of the regime, broadly speaking, is a question of where you are physically and what the degree of capacity we have to exert law enforcement authorities in that jurisdictions looks like.

Now, there are places, there are areas where the convergence is more complicated even than that, though. When you look at what US troops were doing in parts of Iraq during the Surge—in parts of Afghanistan now, there are certain law enforcement elements of that. So, it’s not just, you know, the government having, using military and covert intelligence powers that we associate with warfare to go after people whom we associate with, you know...we would traditionally have thought of as criminals. It’s also using the military to do things like, you know, policing neighborhoods. Right? That we would traditionally think of as...you know, a whole lot of the “COIN” (counter-insurgency) strategy involves delivering law enforcement services. Right? And so, it’s also using the military in ways that kind of look a little like law enforcement.

[00:08:07:10] Have ideas about government using military & criminal authority changed—converged—at the expense of previously assumed limits?

[00:08:15:25] Right. No, I think, you know, that’s all correct. There is a convergence going on both internationally and to some degree domestically.

And look, the issue that you describe about, you know, scanning license plates—that’s actually actually a different issue. Right? Because license plate numbers are public. Right? They’re not...and so the question there, and it’s actually a question that is a recurring theme throughout the sort of domestic data issues, is how do we really feel about efficiency. Right?

But, what if you can snap a picture of everybody who goes down the street and the facial recognition software is actually really, really good. Right? And so, by walking down the street—which is not a private act. Right? Which is not something that we traditionally associate with you having a lot of privacy rights associated with... You’re exposing yourself to serial criminal investigation in 1000 jurisdictions, all of which can submit your photo for the things that you’re wanted for. Right?

Or, what if, by driving down the street—again, not a private act—there’s perfect efficiency in knowing what your license...you know, what inquiries your license plate is connected with somehow?

I think we haven’t really thought through the question of how we feel about efficiency. It’s a question that databases have really put on the table where whole categories of public data about you are now public in a way, you know, somebody used to have to go to the courthouse and look you up individually. It was all there, if they wanted to know it. But, it wasn’t perfectly accessible to anyone at any time. And now this stuff is. And, I think that there’s...that’s actually a category…to go back to our earlier, you know, our...a category question about: Do we feel the same way about...what information should be public, what information should be protected, if we know that the processing efficiency of that information is near-perfect? That anything that’s public is going to be available to law enforcement. But also to Choice Point. Right? To companies that specialize...But also to me. Right?

I, you know, I meet somebody professionally and I can stalk them and find out, I’ll find out who his girlfriend is, you know, what...you find out all kinds of information just casually looking people up. You meet somebody, you look him up on Facebook, you find out all kinds of things about them. And that’s just the information that he doesn’t really mind if you know. Right?

Then you go to the information aggregators, some of them will charge you money, some of them won’t—you can look up his criminal record. A lot of people actually have them. You know? A lot of good people actually have them.

And, I’m not saying what the right answer to that question is. But there is a question of, ‘Do we think that the same amount of data should be public, if the consequences of public means perfect efficiency of access to anybody who wants it?’ And criminal records is a good example of that. So, this is the prototypical public information. But, if somebody has a record in three different states, it used to be a little bit of an exercise to track down, you know, ‘Where has Ben Wittes been arrested.’ It’s not a...now you can just get somebody’s Rap Sheet really, really easily. And, you know, that does have consequences for people.

—End of Part Three—

For more

GWorks Interviews: Benjamin Wittes,

please visit

Part One: Imagine That

Constitution 3.0 described &

imagining the challenges technology

poses for Constitutional values

Part Two: A Different Day

Technological development, National Security & Constitutional values

Part Four: Limiting Principle

Is a recent Supreme Court case a sign we have hit a Constitutional limit & who should decide

Part Five: Conclusions

Biological weapons made in basements & what readers should take from Constitution 3.0.

EDITOR’S NOTES

Please note: On 16 April 2012, GWorks updated the video for Part Three: Convergence to correct a minor editorial error GWorks made in the credits. In the previous version, the first End Credit read, “End of Part Four”; it now reads, “End of Part Three.”

GOVERNINGWorks filmed GWorks Interviews: Benjamin Wittes on Wednesday 21 March 2012 in Mr Wittes’s office at The Brookings Institution, District of Columbia. GWorks would like to thank Mr Wittes for his generous participation; and Ritika Singh, Mr Wittes’s Research Assistant, and Natalie Fullenkamp for their work to make this interview happen; and The Brookings Institution.

Photo: Book Cover: Constitution 3.0: Freedom & Technological Change. Courtesy The Brookings Institution.

Photo: Benjamin Wittes. Courtesy The Brookings Institution.

Please note: Jeffrey Rosen and The Brookings Institution provided GOVERNINGWorks with a Reviewer Copy of Constitution 3.0.

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues.