by Austin Sarat and Nasser Hussain (eds.). New York: New York University Press, 2010. 240pp. Cloth. $75.00. ISBN: 9780814741399. Paper $25.00. ISBN: 9780814739853.

Reviewed by Daniel Hoffman, Johnson C. Smith University, retired. Email: guayiya [at] bellsouth.net.


This timely collection addresses an important and disturbing question: whether legal authorities, at home and/or abroad, should pursue claims that Bush administration officials committed criminal acts in their conduct of the war on terror. The question calls for a close look at the law/politics distinction and the nature of our current form of government. I must acknowledge a certain lack of impartiality on this subject. There are indeed multiple approaches to the rule of law concept. However, I cannot imagine that, in our republican form of government, the rule of law admits of a doctrine explicitly providing that people of a certain political or social status are immune from criminal punishment. Richard Nixon and Bill Clinton were not immune to either civil suit, criminal investigation or impeachment. None of the contributors to the present book makes a clear, principled case for treating Bush officials differently.

The English Revolution was, in significant part, a repudiation of the idea that the King, or anyone else, was above the law. Of course, it did not equalize the distribution of political influence. The American Revolution launched some further progress in that direction, but it is clear that elites still have a disproportionate influence in electing officials, framing the laws and enforcing them. That makes it even more crucial that they be held strictly liable when they break the laws.

The book consists of a lengthy introduction by the editors, followed by three chapters that argue for prosecution and three that argue against. As the Introduction explains, the focus of the book is not on whether anyone in fact violated the law. Rather, the question is whether, presuming crimes were committed, they should be prosecuted. “[T]he demands of a rule of law in the case of political crimes are not self-evident” (p.4). The editors briefly survey three categories of charges that have surfaced: unlawful domestic surveillance, misrepresenting the case for war with Iraq, and torture of suspected enemy combatants. The relevant legal materials thus include the Foreign Intelligence Surveillance Act, state laws against conspiracy to murder, international law concerning crimes against humanity and war crimes (the latter not expressly mentioned here), and the Convention against Torture, with its implementing domestic law. The ensuing chapters, however, focus mostly on torture.

The Introduction next surveys different conceptions of the rule of law. “The concept . . . is a capacious one, made up of multiple and sometimes even [*172] conflicting norms and values” (p.13). Among other things, our criminal justice system is replete with discretion, and “the need for emergency powers is universally acknowledged” (p.14). [The latter proposition is simply false, since I, for one, respectfully dissent.] Officials may claim necessity as a justification, and may petition Congress for immunity or the president for pardon. There follows a discussion of full disclosure (e.g., Truth Commissions) as a possible, prophylactic alternative to criminal prosecution. Finally, the Introduction highlights the arguments of the six chapters to come.

Chapter 1, by Claire Finkelstein, focuses on the question of torture. She argues that “When a government publicly declares its fidelity to one set of rules while covertly following another, it is effectively rejecting the very idea of governance by rules” (p.40). Yet she confines her inquiry to the possible prosecution of DOJ lawyers, such as Jay Bybee and John Yoo, rather than the higher-ups, George Bush, Dick Cheney, and David Addington, who actually drove the adoption of waterboarding and other “enhanced techniques.” She does not discuss the blatant inequity of punishing the agents and not the principals.

Finkelstein proceeds to show that the OLC memos advanced a radical conception of unlimited sovereignty, inconsistent with rule of law and separation of powers, and that, because they were kept secret, they violated the norm of public reason. “[A]dherence to international agreements cannot be anticipated and relied upon without a system of sanctions for violators in place” (p.53). “What the failure to prosecute signifies is an acceptance of the expanded conception of executive power the Bybee memorandum advances” (p.55). Acceptance? Because inaction can stem from from so many different motives, it seems clear that nonprosecution logically cannot count as a precedent for an affirmative proposition of law. Surely the failure to indict Nixon did not prove that he had broken no law – let alone establish the horrific proposition that “when the President does it, then it’s not illegal.” Finkelstein next argues that the legal defenses of justification (self-defense), necessity (social welfare), and immunity are not available to the OLC lawyers. Her reasoning is less than crystal-clear, and fails to address the line of cases in which courts have kowtowed to the shibboleth of national security. But even if offenders could be successfully prosecuted, she provides no reason to think the attempt will be made.

Chapter 2, by Daniel Herwitz, explores the prospect for remedial actions in the wake of abusive treatment of Guantanamo prisoners. Given the half-hearted nature of domestic reforms so far, he discusses the South African Truth and Reconciliation model, but concludes that it is inappropriate for the American case, because there is no demand on either side for reconciliation between US officials and Guantanamo prisoners. What we can learn from South Africa, he argues, is that both the Afrikaner and Bush administration officials displayed an exceptionalist, “settler mentality” that, they thought, licensed them to ignore international humanitarian norms. This leads him to endorse an international response that would reassert and bolster those norms. Although the World Court does not have [*173] compulsory jurisdiction, “launching a commission of inquiry or legal case [i.e., prosecution for crimes against humanity] in the International Court of Justice would have real symbolic force, a force worth the probable outcome of procedural failure” (p.85), i.e., stonewalling by the US government.

Chapter 3, by Lisa Hajjar, explores an alternative option: universal jurisdiction. Under this concept, every state has the power to punish a “nonderogable” [no exceptions] crime such as torture, regardless of where it took place or the nationality of perpetrator and victim. Thus, a traveling Donald Rumsfeld or John Yoo could find himself in the sort of spot that Augusto Pinochet did. Despite fierce diplomatic pressures from the US, “courts in Spain, France, Belgium, the UK and the Netherlands have successfully prosecuted dozens of foreign nationals for international crimes” (p.100). Cases against CIA agents and other Americans are pending in Italy, Germany and Spain, but face steady resistance by the US Department of Justice. Hajjar insists that “holding individuals, including government officials, accountable for their crimes is essential to (re)affirm the state’s commitment to the rule of law” (pp.109-110). Given the absence of meaningful civil or criminal remedies at home, prosecutions abroad are “the only conceivable option.” But a foreign court cannot compel access to US government documents, let alone the person of the accused.

Chapter 4, by Stephen Holmes, opens the case against prosecution. Oddly, the argument is almost entirely empirical: “High-ranking American officials have never been held legally accountable for lawbreaking in the pursuit of public safety, as they have understood it” (p.121). “[T]he disheartening but historically customary impunity of high-ranking executive officials” requires a `more realistic understanding’ of the rule of law” (p.122). The reality, Holmes argues, is that everywhere the law reflects asymmetries of power. It is the powerful who shape the law and its enforcement. Holmes observes that lawbreaking during the Bush administration was rampant: hundreds of detainees died in US custody, and hundreds of separate laws were broken. Legal doctrines and processes, however, immunize official lawbreakers. “Could a prosecutor find a unanimous jury, even in Washington, D.C., willing to convict Dick Cheney of authorizing torture?” (p.130). This raises interesting questions about jury instructions and nullification that Holmes does not discuss, but his analysis does imply that Cheney would be allowed to make the sort of political arguments that anti-Vietnam war protestors were not. The law of immunity, like all law, serves the powerful. Holmes explains why neither the Obama administration nor congressional Democrats would gain politically from pursuing these issues. “There will be no transitional justice because there has been no real transition” (p.139).

The exposition so far seems to make an overwhelming case that we do not in fact enjoy the benefits of the rule of law – perhaps that no such thing is even possible. But suddenly Holmes introduces a new point: “[A] trial of high-level Bush officials would quickly turn into a political trial” (p.139). If all law is produced by politics, what makes one trial more political than another? [*174] Why is a trial of Cheney political, in a pejorative sense, if a trial of Ellsberg or Assange is not? If election results can determine what is made a crime, why can they not determine who should be prosecuted? Why should the question, was conduct x a crime, depend on who did it to whom? Holmes does not say, quickly returning to his account of the doctrinal and practical obstacles to legal remedies. Later, he cites the reelection of Bush and Cheney in 2004 as a “dismayingly democratic” source of lawbreakers’ impunity (p.144). Since elections seldom or never turn on questions of legality, this observation has no normative force. If the 2004 election established certain legal principles, which of those did the 2008 election overturn? Holmes’s conclusion, that “it is better, both politically and morally, to admit the inherent bias of the law” (p.149) seems to mean, in effect, “there is no rule of law, get over it.”

Chapter 5, by Paul Horwitz, expands on the argument that democratic elections are a key device for implementing the rule of law. Democracy implements legal doctrines, and implementations “will be as varied as the occasions which give rise to them” (p.157). He follows with an extended attack on “legalism,” without providing an account of the law/politics distinction that maintains any dignity or autonomy for the law. The rule of law embraces “all the varied means through which politics works” (p.163). Really? Taken literally, this statement subsumes dirty tricks, assassinations, even mass terrorist attacks under the rule of law heading. He cites Article V as the mechanism for democratically changing constitutional meta-rules, as if this was a majoritarian process, but he is silent on judicial review. He takes for granted that we have a stable, functioning, democratic process that could be disturbed by taking to court legal disputes that are politically controversial, when “incoming and outgoing political elites” are in unison (p.172). Simply put, this argument supports neither the rule of law nor democracy; it supports the political status quo.

Horwitz cites the crisis of the 1790s and the election of 1800 as demonstrating the effectiveness of political remedies for abuses of power. But that election did not prevent later congresses from enacting sedition laws, some of which remain in force. Only in 1964 did the Court suggest that the 1798 Sedition Law was unconstitutional. In what sense did the political process do “an adequate job of vindicating the rule of law” (p.175)? In what sense is Bush’s “political oblivion,” guaranteed anyway after two terms, an “adequate remedy” for torture victim (p.175)? For that matter, how does the situation in Congress today reflect “the Bush administration’s current state of political oblivion” (p.177)? Is the rule of law not meant to check the will of the people, majority or not?

Chapter 6, by Stephen Vladeck, focuses on the WWII Japanese internment, and on Justice Jackson’s dissenting opinion in KOREMATSU v. UNITED STATES. The internment is now generally regarded as wrongful and unlawful, yet no one was ever criminally sanctioned for it. Vladeck does not identify any statutes that might have been employed to prosecute; his point is that we were able to repent of this episode and to grant reparations without resort to criminal law. He presents Justice [*175] Jackson as arguing that the Court should not have entertained the merits of the case, but should instead have declared exercises of military judgment to be nonjusticiable. Jackson’s opinion is difficult to parse, but the crucial point is his final sentence: “I would reverse the judgment and discharge the petitioner.” This says clearly that Korematsu was treated unlawfully – not that his treatment is beyond judicial review. Could the Justice mean that the statute enabling the internment was unconstitutional, although the executive actions pursuant to the statute were above and beyond the law? I doubt that this was his intention, but the opinion surely cannot stand as an exemplar of reasoning about the rule of law.

What does it mean for Vladeck to say that “infringements upon the rule of law can be properly remedied without individual criminal liability” (p.188)? What is “proper” about modest payments, decades after the fact, to people whose lives had been destroyed? What is proper about officials knowingly deceiving courts, with impunity, about evidence within their possession , as also occurred, by the way, in the landmark case on the state secrets privilege, UNITED STATES v. REYNOLDS? (Korematsu’s conviction was eventually overturned on a writ of error coram nobis, but the same strategy failed with regard to the Reynolds judgment.) It is comforting that Jackson thought courts should intervene “if the general war power should be invoked as a mere pretext for arbitrary government” (p.193). But how can courts determine what is a mere pretext? The war power is confided to Congress, not the president, and the standard must not be intentions, but potential consequences. Courts are sworn to protect the Constitution, whether or not officials intend to violate it.

Following a detailed review of the process leading to repudiation of the KOREMATSU ruling, Vladeck notes with satisfaction that, despite the racist overtones of many administration responses to 9/11, American Muslims were not detained en masse. This reminds me of a moment during the Iran hostage crisis when I queried a DOJ official, Frank Easterbrook, now a federal judge, about President Carter’s order to detain all Iranians in the US for immigration status checks. When he said this was about foreign policy, not personal rights, I asked him whether the same would apply to an order to shoot them. He wen speechless and hung up on me.

Vladeck proceeds to consider the OLC memos justifying torture, which he acknowledges pose a substantial threat to the rule of law. That they were kept secret exacerbates the problem. Given results of lawsuits so far, it seems unlikely that the courts will enforce the law against torture anytime soon. “After all, the question … inevitably reduces to the mens rea of individual officials” (p.205). Why is this inevitable? If torture is a nonderogable offense and international law is part of the supreme law of the land, good intentions should be irrelevant. Vladeck, however, advocates “the appointment of an independent, nonpartisan, high-caliber commission” to document “the nature and origins of the relevant governmental abuses” (p.206). NGOs must insist that the voices of victims are heard. Given the negligible impact of many recent nonpartisan efforts, including the 9/11 [*176] and budget commissions, this does not seem a very promising alternative.

This book is a distressing expose of the feebleness of the rule of law ideal. If high US officials commit major, lethal crimes, the only likely remedy is the judgment of history. The Bush administration, inspired by Cheney and Rumsfeld, took office with an unconcealed agenda of overthrowing all post-Watergate restraints on presidential power and expanding it to the maximum. Crimes were committed, with impunity. Grave “mistakes,” to put it mildly, were followed by promotions, even to the federal bench. The masterminds are finally out of office, but their monarchist rhetoric lives on. Victims have not been compensated. Many are still detained, without prospects for a fair trial. Hollow “reforms” have legitimized some of what was done. Polls show the public is ambivalent about torture. Advocates of prosecution, at home or abroad, seem to be hoping for miracles, while opponents deride the very idea of official accountability as a threat to democracy. Jose Padilla’s torture lawsuit has been dismissed to avoid an “international spectacle,” even while the sitting President of democratic Italy prepares to face the spectacle of trial in that country. No institution or political process has provided or promises to provide secure checks against similar future abuses.

Those who take the rule of law as a valid, serious ideal can only work to educate the public, and hope that the Court will deny John Ashcroft’s bid for immunity in Abdullah Al-Kidd’s suit regarding his unlawful detention, and that Congress will assert its war-power prerogatives regarding the military operation in Libya.

ASHCROFT v. AL-KIDD, DOCKET NO. 10-98 (2011).
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).
UNITED STATES v. REYNOLDS, 345 U.S. 1 (1953).

© Copyright 2011 by the author, Daniel Hoffman.