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When Governments Break the Law

When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration

Austin Sarat
Nasser Hussain
Copyright Date: 2010
Published by: NYU Press
Pages: 234
https://www.jstor.org/stable/j.ctt9qg520
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  • Book Info
    When Governments Break the Law
    Book Description:

    Recent controversies surrounding the war on terror and American intervention in Iraq and Afghanistan have brought rule of law rhetoric to a fevered pitch. While President Obama has repeatedly emphasized his Administration's commitment to transparency and the rule of law, nowhere has this resolve been so quickly and severely tested than with the issue of the possible prosecution of Bush Administration officials. While some worry that without legal consequences there will be no effective deterrence for the repetition of future transgressions of justice committed at the highest levels of government, others echo Obama's seemingly reluctant stance on launching an investigation into allegations of criminal wrongdoing by former President Bush, Vice President Cheney, Secretary Rumsfeld, and members of the Office of Legal Counsel. Indeed, even some of the Bush Administration's harshest critics suggest that we should avoid such confrontations, that the price of political division is too high. Measured or partisan, scholarly or journalistic, clearly the debate about accountability for the alleged crimes of the Bush Administration will continue for some time.Using this debate as its jumping off point, When Governments Break the Law takes an interdisciplinary approach to the legal challenges posed by the criminal wrongdoing of governments. But this book is not an indictment of the Bush Administration; rather, the contributors take distinct positions for and against the proposition, offering revealing reasons and illuminating alternatives. The contributors do not ask the substantive question of whether any Bush Administration officials, in fact, violated the law, but rather the procedural, legal, political, and cultural questions of what it would mean either to pursue criminal prosecutions or to refuse to do so. By presuming that officials could be prosecuted, these essays address whether they should.When Governments Break the Law provides a valuable and timely commentary on what is likely to be an ongoing process of understanding the relationship between politics and the rule of law in times of crisis.Contributors: Claire Finkelstein, Lisa Hajjar, Daniel Herwitz, Stephen Holmes, Paul Horwitz, Nasser Hussain, Austin Sarat, and Stephen I. Vladeck.

    eISBN: 978-0-8147-8656-7
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction: Responding to Government Lawlessness: What Does the Rule of Law Require?
    (pp. 1-36)
    NASSER HUSSAIN and AUSTIN SARAT

    Today, as in the past, Americans pride themselves on their commitment to the rule of law.¹ This commitment is deeply rooted in America’s history, or so the story goes, and it has been renewed from one generation to the next. From Tocqueville’s observation that “the spirit of the laws which is produced in the schools and courts of justice, gradually permeates … into the bosom of society”² to the present, numerous commentators have said that America has the “principled character … of a Nation of people who aspire to live according to the rule of law.”³

    Invocations of the rule...

  5. 1 Vindicating the Rule of Law: Prosecuting Free Riders on Human Rights
    (pp. 37-68)
    CLAIRE FINKELSTEIN

    On June 26, 2003, the United Nations celebrated “International Day in Support of Victims of Torture.” To mark the day, President Bush issued a statement in which he said:

    The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment. I call on all nations to speak out against torture in all its forms and to...

  6. 2 Guantánamo in the Province of The Hague?
    (pp. 69-86)
    DANIEL HERWITZ

    Certain abusive treatments of prisoners at Guantánamo may arguably be considered crimes against humanity. Not to deploy human rights instruments in the face of such abuses would be to bury the crime and normalize what I shall call in this essay the state of exception through which the United States arrogates unbridled power unto itself. The hard question is: What would be the appropriate human rights instruments to deploy in the face of U.S. alleged abuse in Guantánamo?

    Within the United States a number of options have been activated, with varying degrees of success. These include a Senate Armed Services...

  7. 3 Universal Jurisdiction as Praxis: An Option to Pursue Legal Accountability for Superpower Torturers
    (pp. 87-120)
    LISA HAJJAR

    In June 2009, Wolfgang Kaleck, a German lawyer and one of the world’s leading proponents of universal jurisdiction (UJ), published an article titled “From Pinochet to Rumsfeld.”² The focus is on Europe between 1998 (the year former Chilean dictator Augusto Pinochet was arrested in London on a Spanish warrant) and 2008. During this decade, significant strides in the development and use—the praxis—of UJ have made it possible to indict former U.S. Defense Secretary Donald Rumsfeld in a European court for authorizing and abetting the crime of torture in the context of the post–9/11 “war on terror.”

    If...

  8. 4 The Spider’s Web: How Government Lawbreakers Routinely Elude the Law
    (pp. 121-152)
    STEPHEN HOLMES

    A debate is raging, and not only within this volume, about the wisdom of prosecuting Bush Administration officials for serious violations of the law, domestic and international. Both opponents and advocates of prosecution make dire predictions about what will happen if their conflicting imperatives are not heeded. Conservatives allege that any prosecution of illegal behavior by counterterrorism officials will disarm the country in the face of its deadliest enemies; liberals retort that a failure to prosecute will fatally weaken hitherto robust principles of the American legal and political system.² This debate is theoretically fascinating and politically resonant, but it remains...

  9. 5 Democracy as the Rule of Law
    (pp. 153-182)
    PAUL HORWITZ

    In American politics and political culture, eight years is not an eternity, but it can feel like one. In that time, a presidential administration and its politics can become entrenched as the regnant political culture and orient our political landscape around what comes to feel like a fixed point. It is long enough to make the transition to a new administration, especially one of a different party, seem like a significant change, a meaningful reorientation of our political culture.

    We are in the midst of such a change in political culture, in two senses. We are in the post-Bush era....

  10. 6 Justice Jackson, the Memory of Internment, and the Rule of Law after the Bush Administration
    (pp. 183-216)
    STEPHEN I. VLADECK

    Notwithstanding the force of the rhetoric employed on all sides, the contemporary debate over whether senior Bush Administration officials should be investigated (and potentially prosecuted) for their role in the U.S. government’s torture of individuals detained as “enemy combatants” during the war on terrorism has been curiously indifferent to American history.² Even the most modest perusal of that history reveals—perhaps surprisingly—little precedent for holding personally to account those senior government officials most responsible for our gravest civil liberties and human rights abuses. Perhaps the most prominent example comes from one of the darkest civil liberties chapters in American...

  11. About the Contributors
    (pp. 217-218)
  12. Index
    (pp. 219-230)