Jane Mayer's important book, The Dark Side, should be read together with two other significant books, Ben Wittes' Law and the Long War and Philip Bobbitt's Terror and Consent. The reason these books are best studied in tandem is that Mayer convinces the reader that the Bush Administration, especially Cheney and associates, shredded the Constitution and utterly unhinged the check and balance system, all in order to allow an unprecedented, abusive concentration of power in the hands of the president. However, she leaves it to the other two books to answer this question: given that the United States does face a new kind of threat, how should the next administration deal with terrorists within the framework of the Constitution and a well balanced democracy?

Her account of gross and systematic abuses is well documented and horrifying. One sometimes finds it hard to believe that she is writing about the United States. However, by not offering any other way to fight terrorism, she leaves the impression that no significant changes are needed in our laws, which is hardly what Wittes and Bobbitt show. The fact that the Bush Administration went overboard, way overboard, does not necessarily mean that we should or can deal with terrorists by simply adhering to the Geneva Conventions, or that we should deal with them as if they were garden variety criminals. In effect, a case can be made that the best way to ensure that no such abuses occur in the future is to make some limited, and above all closely monitored, adaptations to our laws. One should not overlook the fact that not only our laws but the Constitution itself is a living document that has been repeatedly reinterpreted to take into account changing social and historical conditions. Thus over the last decades, well before Bush, numerous doors were opened in the wall that supposedly separates state and church. The right to free speech was greatly extended , to put it mildly, thanks to ACLU's endeavors in the 1920s. And a wholly new right, to privacy, was forged rather recently.

Mayer is a journalist who works by telling anecdotes. Bobbitt and Wittes are legal scholars. Bobbitt points out, in a highly convincing manner, that none of our old models of thinking fit the new world. The traditional concepts of nation, war, and terrorism, and major parts of domestic and international law--must be recast. Neither the notion of treating terrorists as enemy soldiers nor that of dealing with them as criminals will do. Correctly, Bobbitt is especially concerned about the combination of terrorists and WMDs. Hence, he is calling on us to find ways to abide by our laws but also realize that they must be changed. The specifics Bobbitt's powerful book provides are highly nuanced and complex, but not fully worked out. However, he wisely avoids the trap Mayer falls into, by judging the ways we deal with terrorists by the laws forged for soldiers wearing uniforms that identify them as combatants and indicate which state is accountable for them. In short, in my words, much of the Geneva Conventions do not apply to terrorists and the rest will have to be updated.

If Bobbitt approaches the world from 30,000 feet, Wittes' feet are firmly planted on the ground. He provides a fine compliment to Bobbitt by in effect adopting the basic precept that our basic concepts, laws, and treaties must be adapted, and he goes a fair way to outline what must be. For instance, while he rejects the ways Bush et al acted, he favors extended incarceration of terrorists, under procedures to be worked out by Congress, i.e. via new laws, rather than by judges. The detainees will have access to a court, but only to a special one, and will be treated fairly and in line with procedures to be established, but will not be able to enjoy the full rights Americans are entitled to. Wittes would maintain the ban on torture but would allow for some flexibility in integration methods in emergencies. And he acknowledges that what is considered reasonable search must take into account new electronic technologies and new means of communication.

All three books are much richer than can be laid out here. However they all point to the same general conclusion: between mechanically applying pre 9/11 percepts and going wild, lies a world largely yet to be charted. It is a world of carefully modified laws and institutions that take into account the new kind and level of terrorism, without sacrificing our basic commitments to freedom and rights. We need a new Geneva Convention, rather than vainly seeking to apply the old one or running circles around it.

Amitai Etzioni is a professor of international relations at The George Washington University. For more discussion, see Security First (Yale 2007). To contact him, write comnet@gwu.edu or visit www.securityfirst.com