Ben asks an interesting question about the effectiveness of the British independent reviewer. I didn’t have a chance to meet Mr. Anderson while he was here in Washington, but several years ago, I did meet his predecessor Lord Carlile. At the time, I thought it was a very effective mechanism for “inside” review of decision-making within the system. When I met Lord Carlile, his focus was not on the prospective review of legislation but rather on the retrospective validation or invalidation of individual detention decisions.
As I understand the British system, by tradition this role was played by a respected attorney who was appointed from outside the ranks of the governing party. Thus the position was filled by an “elder statesman” whose views carried a decent amount of weight within the Home Office. Perhaps more significantly, the threat of a public dissent is, I am told, enough to usually sway the government party to modify its position.
Like Ben, I was quite impressed with the architecture of the system. I recommended that an internal review of all detention decisions be conducted by some neutral like the President’s Intelligence Oversight Board, which is as close as we can come to the British “Wise Old Man” model of review in our own system. [This was, of course, before the current system of review was developed.] Sadly, I despaired of the obvious answer — Congressional oversight — as unlikely to be effective.