by Peter Margulies. New York: New York University Press, 2010. 240pp. Cloth. $39.00. ISBN: 9780814795590.

Reviewed by David S. Mann, Professor Emeritus, College of Charleston. Email: mannd [at]


Make no mistake, this is a point of view book; the subtitle gives it away. At the outset, readers of this review should know that I have a point of view, too; my favorite Senator is Bernie Sanders (I-VT); I wanted to like this book; a rather faithful viewer of MSNBC, a lot of what Margulies wrote about I had seen on Maddow, Matthews, (more recently) O’Donnell, or (until recently) Olbermann. I wanted more, and that was the temptation which drew me, as a retired professor, to complete this assignment.

Lucky for those interested in this topic, the April 18th edition of LPBR reviews WHEN GOVERNMENTS BREAK THE LAW: THE RULE OF LAW AND THE PROSECUTION OF THE BUSH ADMINISTRATION, by Austin Sarat and Nasser Hussain (eds.). While I have only read the review, it looks at first glance that the two works could be companions to one another.

Margulies begins with what he refers to as “The perfect storm of politics, ideology, and crisis,” chapter one’s title. He refers to detours “from sound policy, practice, and law” (p.7). Often in this book the author ties people to ideas, and here refers to the the imperial presidency model as the first source of ideology. Margulies asserts that Dick Cheney, David Addington, and John Yoo were all “champions of unilateral presidential power” (p.8). Add a variety of components such as Margulies’ belief that the unilateralists/imperialists supported the broad brush of U.S. v. CURTISS-WRIGHT, the appointment of John Ashcroft as Attorney-General, and the events of 9-11 and you have that perfect storm. Margulies also believes that these same folks disregarded Justice Jackson’s solution to disputes between presidential and congressional power in YOUNGSTOWN SHEET AND TUBE V. SAWYER. Given all of that, detours included the detentions of US citizens, executive surveillance, the creation of the Department of Homeland Security (here he refers to “follies” (p. 21)) and FEMA’s response to Katrina.

Chapter 2 discusses how the Bush administration went about “targeting individuals and groups” (the chapter’s title), and begins with this: “In May 2002, the Justice Department accused the environmental activist group Greenpeace of tempting sailors into vice. . . . [citing] an obscure, 140-year-old statute aimed at aggressive marketing by seaside taverns which bar boarding a vessel in an unauthorized fashion. . .” (p.25). The dominant targets in this chapter are immigration and related policies. For instance, Margulies spends several pages on the post-9-11 roundup of Muslim persons of interest. In the first of several seemingly unrelated examples, the author directs attention to [*296] asylum and immigration issues. He talks about Haitian refugees, who might be hiding terrorists, and who were detained under a John Ashcroft order: “Risking one’s life in a rickety vessel in the turbulent Caribbean surrounded by scores of bona fide Haitian refugees, however, seems like a markedly inauspicious start to a terrorist infiltration” (p.31).

But the big ticket item of Chapter 2 and on into Chapter 3 is Guantanamo. Margulies spends some time on extraordinary rendition and enhanced interrogation techniques, a lot of which had been reported in various news outlets. A scant page addresses the FBI watch list, about which I have an extended comment and tribute.

Walter F. Murphy, one of the greatest scholars of any generation in our field, was on the “no fly” list. He gave the 2007 Constitution Day speech at Charleston School of Law, where he talked about some of his extended delays at various airports. Carrying his retired US Marines i.d. (his experiences in Korea are re-told in his novel THE VICAR OF CHRIST) made no difference. He insisted he was on the list because of essays, speeches, and statements he made in opposition to and in concert with what would be the theme of this book. He was angry; most of this, I recall, Murphy alluded to himself on the CONLAW listserve at that time. (At dinner that night in Charleston, as an aside, Murphy spoke highly of his former student Samuel Alito, and Murphy insisted that Alito was qualified to sit on the High Court.) Margulies might have used this portion of the book to pay tribute to Murphy. I do here instead.

Another scant page mentions Valerie Plame as an administrative target. Yet, five pages address incidents where Margulies asserts “the government laid down an elaborate grid of formal and informal rules, regulations, and practices that made attorney-client communications very difficult, sow mistrust between attorney and client, and sometimes even punish clients for seeking access to an attorney” (p.45). Perhaps the content difference rests with the fact that we all heard about Plame – maybe even saw the movie. So perhaps it is correct to provide more detail about that which we know less.

While Chapter 3 has as its title “The Architecture of Impunity,” as mentioned above mostly this is about Guantanamo issues. Margulies refers to geography, coercive interrogation and the infamous Yoo memo about enhanced interrogation, immunity, and the memory failures of Addington and Yoo at Senate hearings. Also in this chapter is a brief take on the US Attorney firings (with no mention of Gonzales’ memory losss). For this entire chapter, again, most of which I saw on MSNBC, there was one sentence that is the essence of the author’s point of view. “In one of the most shameful episodes in the annals of American law, the Bush administration used the Justice Department to shield itself from accountability for coercive interrogations” (p. 59). The exaggeration reminded me of some of Jefferson’s in the Declaration of Independence.

Chapter 4 has as its theme how the Justice Department centralized policy, hired based on the ideology of the applicant, revived the federal death [*297] penalty, and intimidated judges. There also is another portion devoted to the US Attorney firings. Within this chapter, one sentence struck me enough that I had to check the footnote; I had taught an empirically-based course on the Judiciary for over 30 years. Margulies writes, “Bush immigration judges tended to vote substantially more often than their colleagues to deny asylum” (p.96). The difference reported for “sixteen judges for whom comprehensive statistics were available” (id) was 6.6%. The relevant footnote was not from someone’s dissertation or article from Judges’ Journal. It was from the New York Times. Would any serious student of the judiciary think that to be enough evidence? I don’t think so; but for junior scholars who need something to do, here it is. By the way, there were 47 pages of footnotes; this was the only one I checked.

The main topic of Chapter 5 is conspiracy theories. Margulies quotes Robert Jackson that conspiracies are very difficult to prosecute. There are two points in this chapter I want to address. On pages 112-13, Margulies reviews the Padilla case. I showed these pages to someone very close to the early stages of that case, and her/his version of what happened differed slightly from that provided in the book. Margulies asserts that there were four distinct charges of evidence against Padilla that the government changed as facts emerged. My source indicated the four stories did not result in the government changing its charges against Padilla. Rather, the four stories were all part of a broader terrorism charge against Padilla. This may be quibbling, but if one is to be a viable critic, it is important to be completely accurate.

If our minds are allowed to wander back to the Cold War/Red Scare days, part of Chapter 5 becomes more clear. In DENNIS v. U.S., the Court held that leaders of the Communist Party USA were in violation of the Smith Act, knowingly conspiring to advocate the overthrow of the government. In 1957, YATES v. U.S. held that simply attending meetings was not enough to convict. Now we have to worry about whether someone is a terrorist if that person attended a training camp or cell meeting. Margulies does not mention Yates (he does mention Dennis); some may wonder if Yates should be overruled.

Chapter 6 takes the reader out of the realm of terrorism and into the world of the politics of voting. Very relevant to current events, the question during the Bush II era and now is how much voter fraud there is and what to do about it. We can read at the date this review is published that many states are making it more difficult for people to register to vote and for people to identify themselves properly at the polls. Margulies links this discussion to the US Attorney firings and provides examples of voter intimidation. This issue is not over; it may have just begun. Even though aspects of the Bush II era are over at the national level, there are residuals scattered through the states.

Much of the last substantive chapter addresses regulation of business; not just any old companies, rather Hallburton and Blackwater. Much has been said and written about those companies. The author also writes about the prime mortgage excesses and SEC inattentiveness. I have no quarrel with [*298] this chapter or how Margulies treats the topic.

There is a lot on which to reflect here. One bottom line question is whether Margulies makes his case. Maybe/probably. His most stern critics may come from the political right. He will be on the defensive. This brings to mind two questions that I ask as I leave the field. First, why is it than in times of strife, it is the civil libertarian who is on the defensive? Second, what have we learned from this recent history?

DENNIS v. US, 341 US 494 (1951).
YATES v. US , 354 US 298 (1957).

© Copyright 2011 by the author, David S. Mann.