by Jordan J. Paust. New York: Cambridge University Press, 2007. 326pp. Hardback. $85.00/£45.00. ISBN: 9780521884266. Paperback. $29.99/£17.99. ISBN: 9780521711203. eBook format. $24.00. ISBN: 9780511353031.
Reviewed by Keith Rollin Eakins, Department of Political Science, The University of Central Oklahoma. Email: keakins [at] ucok.edu.
In response to the deadly attacks against the United States on September 11, 2001, the Bush Administration engaged in an illegal, “dirty war” against terrorism involving cruel and inhumane treatment, secret detention, and forced disappearance of captured persons, while simultaneously lying about and denying the occurrence of these events. Such tactics violated international law, degraded American values, weakened US influence abroad, and threatened American democracy and the rule of law. These are the dire conclusions of Jordan J. Paust, Professor of International Law at the University of Houston, in his thoroughly documented work, BEYOND THE LAW: THE BUSH ADMINISTRATION’S UNLAWFUL RESPONSES IN THE “WAR” ON TERROR.
Paust is the author of INTERNATIONAL LAW AS LAW OF THE UNITED STATES which argues strenuously in favor of the primacy of international law over national law, and this theoretical approach guides much of his harsh criticism of the Bush administration’s efforts in fighting terrorism. Paust’s book is divided thematically with chapters consisting of revisions of his previously published law journal articles. Given the book’s structure, I will present a brief summary of its themes, followed by an overall assessment.
Paust begins by documenting how the administration planned and facilitated the denial of Geneva Convention protections for those detained in the conflicts in Iraq and Afghanistan. For example, Seceretary of Defense Donald Rumsfeld approved illegal tactics such as stripping detainees naked, employing hoods, using dogs, and so on. Although Rumsfeld later rescinded blanket approval of these tactics, a Department of Defense Working Group he created legitimated them by declaring that Geneva Convention protections do not apply to members of al Qaeda and the Taliban. Paust argues that these plans and authorizations are criminal violations of the laws of war.
He then examines the topic of “war and enemy status,” asserting that under international law the United States cannot be at “war” with al Qaeda as it has none of “the characteristics of a state, nation, belligerent or insurgent” (p.49). Paust discusses the international legal tests for prisoner of war status, combatant status, and combatant immunity status, and argues that the administration’s attempts to change the laws of war by denying protections to those qualified – such as regular armed [*136] forces of the Taliban – are ill-conceived and dangerous.
He then analyzes the authority to determine detainee legal status and rights and argues that international and US law require judicial review and, contrary to Bush administration claims, do not sanction complete deference to the Executive. Paust asserts that international law applies “as law of the United States” because the US is bound by the treaties to which it has agreed and because “customary international law is part of the laws of the United States” (p.71). Furthermore, he discusses US Supreme Court and lower federal court decisions in cases such as HAMDI v. RUMSFELD, PADILLA v. BUSH, and others, concluding that “judicial robes must not smother liberty and due process” lest they be “in some measure complicit in terrorist attacks on human and constitutional rights” (p.84).
Paust next blasts the Bush administration’s controversial assertions of expansive commander in-chief powers which he refers to as the “commander-above-the-law theory.” He argues it is an illegitimate justification for the violation of international law – such as the US engaging in illegal interrogation of detainees – as well as the transgression of domestic law – such as Bush administration ignoring the Foreign Intelligence Surveillance Act (FISA) and engaging in illegal surveillance. Paust states that the administration’s preference for this legal theory is ahistorical, ideological, and contrary to legal precedent and the views of the majority of the Founders and Framers of the Constitution. He argues further that the 2001 congressional Authorization for Use of Military Force (AUMF) did not authorize a “war,” but rather a limited use of appropriate and necessary force against those directly involved in or aiding the 9/11 attacks.
Finally, Paust criticizes the Bush administration’s anti-terrorism Military Commissions. The initial program, he argues, involved clear “violations of human rights, the laws of war, and various other international laws” (p.119). For example, the Department of Defense (DOD) rules denied detainees the right to obtain meaningful judicial determination of the lawfulness of their detention. Furthermore, detainees were subject to unfair rules of evidence inadmissible in US courts or courts-martial. The scheme, Paust concludes, is one that is fundamentally “mean-spirited” and “anti-American” in tone (p.119) and he discusses the Supreme Court’s criticism of it in HAMDAN v. RUMSFELD as well as the many shortcomings unresolved in the subsequent Military Commissions Act of 2006.
As one might suspect from the book’s title, Paust is unrestrained in displaying his passionate opposition to the actions of the Bush administration, and some readers accustomed to a more neutral tone may be put off. Obviously, big stakes are involved, and Paust seems to want to leave readers with a sense of his perception of the magnitude of harm done and costs incurred by the Bush administration. Nevertheless, his outrage seems to cause him to make occasional important, unsupported assertions outside his area of expertise. For example, he claims: “Resultant war crimes have undoubtedly contributed to increased violence in Afghanistan and Iraq and have served as a terrorist [*137] recruitment tool” (p.46). Of course this is a plausible argument to make, but it begs citation. Paust’s outrage also seems to cause him to dish out a great deal of moral condemnation of the Bush administration. For example, in decrying their treatment of terrorism suspects, Paust even goes so far as to quote the Bible: “’Verily I say unto you, inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.’ Matthew 25:40” (p.46).
But Paust is more effective as international law scholar than as moralizer and his expertise is evident. While many of his arguments are familiar, his legal analyses, despite being one-sided and occasionally naïve (for example, he makes an earnest argument about “unanimous affirmations by Framer’s and Founders” (p.20)), are solid, and his extensive citations undergird them with authority and rigor sometimes lacking in similar works. And the book’s overall theme – the assertion that the US must be subject to international law – is woven skillfully and relentlessly throughout the various issues addressed in the book. However, because Paust takes a traditional legal approach to his arguments, this book may be of limited use for those instructors who emphasize the “science” aspect of their political science courses.
In conclusion, the book is a provocative, fairly well-researched critique of the Bush administration’s war on terror. It raises important questions about the desirability of the US government’s current tactics in this struggle, makes convincing arguments about their patent illegality both in violating domestic and international law, and presents a strong case for the primacy of international law over US law. Paust’s conclusions are jarring and make a significant contribution to this important public debate. Because the book is a collection of Paust’s revised law journal articles, however, it is at times both disjointed and redundant and, most notably, lacks a concluding chapter tying it all together.
This reviewer would recommend the book as a supplemental text for an upper-division undergraduate civil liberties course (it is a short book – in typical law review fashion its 167 pages of notes garner more room than the main text). However, given Paust’s strong opinions, and his general failure to consider those contrary to his, it is recommended that it be paired with a work offering an opposing viewpoint.
Paust, Jordan. 2003. INTERNATIONAL LAW AS LAW OF THE UNITED STATES. Durham, NC: Carolina Academic Press.
HAMDAN v. RUMSFELD, 126 S. Ct. 2749 (2006).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
PADILLA v. BUSH, 233 F. Supp. 2d 564 (S.D.N.Y. 2002).
© Copyright 2008 by the author, Keith Rollin Eakins.