Book Review: When Governments Break the Law edited by Sarat and Hussain
Book Review: Austin Sarat and Nasser Hussain, eds., When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration. New York University Press: New York, 2010, pp. 231. $ 25.
9/11 was a watershed moment in many respects. Unsurprisingly, a significant part of its implications have to do with law. Indeed, addressing the myriad threats, real and imagined, required the harnessing of lawyers to sanction the Bush Administration’s strategy on the “war on terror.” The charges against the Bush Administration are familiar. They include unauthorized domestic surveillance, misrepresentation to Congress about the reasons for going to war in Iraq, and the use of torture.
In the years immediately following the terrorist attacks, academic literature on emergencies flourished. Now, two years after the departure of the Bush Administration, academics have begun asking, what, exactly, is the legacy of that Administration? More specifically, how should we think, and perhaps more importantly, what should we do, about the actions of that Administration?
The new volume of essays edited by Austin Sarat and Nasser Hussain is a welcome addition to this literature. Rather than go into the question of whether Bush officials actually broke the law, Sarat and Hussain assume, as do the other authors, that Bush officials can be prosecuted for their conduct. Thus, the authors focus on whether they should be. The essays, then, seek to problematize the concept of the rule of law as it pertains to public officials and political crimes.
The book presents six diverse views on the appropriateness of prosecutions. The first three essays support one form or another of prosecution, whereas the last three essays oppose it. All essays tackle complex questions such as the relationship between law and emergencies, the interaction of law and politics and how that relationship informs the decision whether to prosecute, and, most importantly, the requirements of the rule of law. This review proceeds by examining the arguments each writer makes for or against prosecutions.
In her contribution, Claire Finkelstein favors prosecution as a requirement of the rule of law. She argues that the Bush Administration pretended to adhere to human rights norms but in reality violated them. This divergence between statements and practice is troublesome, and Finkelstein develops a framework she terms “free riders on international agreements” as a way of investigating the desirability of prosecutions. Free riders pay lip service to the international human rights treaties from which they benefit, but violate them freely. Free riding makes international cooperation on human rights difficult, because other countries might not cooperate with you if they know that your actions and statements diverge. This can result, according to Finkelstein, in exclusion from the group of nations which cooperate on the international level. Moreover, accepting the actions of Bush officials means acknowledging free riding, which signals to other participants that we would accept their free riding as well, which will ultimately erode the basic terms of international cooperation (49).
Finkelstein argues that the “further the public reason of a government journeys from its actual administrative functioning, the greater the reach of executive power, and, as an associated phenomenon, the more enfeebled the rule of law.” (39) If the statements of the regime differ from the actual practice, the robustness of the rule of law is impaired. The rule of law thus depends on the “relative transparency of governmental reasoning.” (40) Prosecution would vindicate the rule of law, because it would bring into line two constitutional principles that the Bush Administration violated. First, that the sovereign himself is a creature of the laws and bound by them. Second, that the executive branch is constrained by other branches (44). Consequently, failing to prosecute means not repudiating the violence done to the rule of law and implies endorsement of these acts (55).
The problem, of course, is that all countries’ words and actions diverge when it comes to human rights commitments, a point Oona Hathaway has persuasively made in her research on compliance with human rights treaties. If all countries display an overt level of commitment but utilize covert actions which undermine some human rights provisions, this would suggest that free riding is tolerated to a certain extent. Moreover, it also wouldn’t provide deterrence against entering into such agreements in the first place, something Finkelstein is wary of.
Daniel Herwitz’s essay continues Finkelstein’s theme by inquiring as to what would happen if there were no prosecutions. His concern is that by not deploying human rights instruments we would be normalizing the exception. At the same time, he is acutely aware of the danger of implementing these instruments in a way that confirms their powerlessness, which he thinks would be the likely result. Still, he believes that there will be important symbolic capital if such an instrument would be used against former Bush officials (71). Concerned that a congressional inquiry would polarize American society, Herwitz recommends an internationally driven inquiry into US abuses, even if that were to fail (72).
A prominent theme in Herwitz’s essay is that of transitional justice. Discussing the restorative capacity of South African Truth and Reconciliation Committees (TRC), Herwitz concludes that TRC won’t work in the U.S. Unlike the TRC, one cannot expect a compromise between warring factions, victim testimony will be difficult to obtain, as will qualified immunity (77). Still, Herwitz argues that American exceptionalism is not very different from what white South Africans claimed back then, with the support of the US government which viewed them as an anti-Marxist bulwark (79). Similarly to white South Africans, the U.S. “reveled in contempt for those outside the country who did not agree with its policies, just as the National Party has done.” (83) Launching an international inquiry, however complicated, would have symbolic meaning that can outweigh the probable failure: facts would emerge, an archive will be constructed, and victims will be given voice.
The South African analogy does a lot of work for Herwitz, yet it seems strained. It is hard to see how American support for that regime, morally repugnant though it was, leads to the remedy he proposes. More importantly, since Herwitz predicts that such an inquiry is bound to fail, wouldn’t that confirm the powerlessness of human rights instruments, something which underscores his concern for the rule of law?
Dissatisfaction with either a domestic prosecution or an international inquiry drives Lisa Hajjar’s analysis. Domestic unaccountability is unrealistic, she argues, given the way all government branches seek to protect public officials (110-111). International tribunals are problematic because they reinforce the state-centrism of the international order, reflecting the inherent power imbalances (96). They include compromises which are needed to gain the support of powerful nations, thus making these mechanisms weaker. Think, for example, of the U.S.’s retreat from the Rome Treaty and signing bilateral agreements with countries guaranteeing immunity to Americans from the jurisdiction of the ICC (96).
Consequently, Hajjar favors the use of universal jurisdiction (UJ). UJ closes any gap of impunity in cases where the contravening nation does not prosecute its own, which is likely if the conduct was not an aberration but part of a systematic plan (92). Hajjar believes that UJ is the best and only option because Europeans are used to applying international criminal law provisions and it would be an important symbol for the proposition that no one is above the law. This, she thinks, might deter other such behavior by other countries (112).
Hajjar does an excellent job of describing the use of UJ in European courts following 9/11. This includes prosecuting (or attempting to prosecute) officials in Spain, Belgium, and Italy, among others. But the use of UJ has also illuminated its problematic aspects. Powerful states, such as the U.S., can use their power to avoid liability and influence UJ laws in states where a petition was filed. This, in fact, has already happened in Belgium and Spain (as Hajjar acknowledges). Thus, states that have UJ might lose out politically and economically when allowing such claims to go forward, which might make them ultimately reluctant to grant this option. Of course, the utilization of UJ can also result in show trials, political pandering, power displays, and, even, a weakening of international law norms. UJ might work, then, if many countries, and powerful countries at that, join the mechanism. But herein is the rub. Powerful countries that tend to find themselves engaged in armed conflict will be more reluctant to have UJ. Moreover, it would seem that even if UJ proved to be effective in some cases, it would mostly serve to target relatively inferior officials, whereas those ultimately responsible would escape liability. This is not inconsequential, but it does fall short of the promise of full prosecutions.
This brings us to the three writers who object to prosecution. These essays acknowledge the harms resulting from Bush Administration policies, but they pose the question whether prosecutions are the best way, all things considered, to address them.
Stephen Holmes’s essay takes a decidedly realpolitik tack by arguing that no high level official will be prosecuted. Ideal justice, Holmes claims, is different from political reality (122). Focusing on the theme of the rule of law, Holmes argues that the rule of law is not an intrinsic guarantee against injustice, since it is merely the rule of laws made by people with biases, interests and particular ideologies (124).
Holmes examines the ways in which law is habitually lenient toward the powerful. Those who are close to power don’t need to break the law because they can shape it and influence it (124). Building on Jonathan Swift’s image of the law as a spider web, where small flies are ensnared, but forceful hornets break through and escape, Holmes argues that law provides immunity for powerfully networked people (128). Bush officials carefully worked to protect themselves against any future embarrassment. They didn’t institute the draft and money was borrowed from China instead of levying new taxes. Further, there is an almost inexhaustible toolkit which officials can enjoy: OLC legal cover, congressional authorizations, state secrets doctrine, appointment of judges, acting through proxies such as private contractors, and so on (129). This is complicated by the reluctance of any future administration to move forward on prosecutions. Such a move would distract from Obama’s current policy agenda and would be perceived as a political trial, a type of victor’s justice (139).
Holmes’s conclusion is that it is better to recognize this than try to prosecute officials. He warns that failing to convict will give the officials the argument that they have been vindicated, whereas discussing the reality of the law would deny them that narrative and expose the legal system for what it is.
This is, of course, true. But it does leave one somewhat frustrated. Accepting Holmes’s argument means conceding a status quo bias which is unlikely to be remedied through the recognition that law is a game played by the powerful to protect their interests. If indeed that is the case, then it is unlikely that realizing this will have the transformative effect Holmes seems to think it will. If the game is “rigged,” we still might be powerless to change it.
There is, then, something nihilistic about Holmes’s argument, something which I take Paul Horwitz to be responding to in his essay. Trying to show that the crimes committed by the Bush Administration can be addressed, though not redressed, without invoking criminal prosecution, Horwitz argues that the rule of law can’t give us an answer to the question whether to prosecute. However, Horwitz argues that there is a difference between the rule of law and its implementation. He suggests we think of democracy as a method to implement the rule of law. Thus, the rule of law can be implemented not only by the judicial process but also through the operation of the political process (155). The election of Obama and the passage of the Bush administration might be a response, though incomplete, to the misdeeds of the latter. Democracy guarantees that the rules of the political game are ultimately subject to popular control, thus serving “as both an important component of, and an implementing device for, the rule of law” (160).
Like Holmes, Horwitz also urges a pragmatic all-things-considered perspective. The choice of what policy to implement, he argues, depends on a kind of cost-benefit analysis (168). In the Bush context, we need to look at the future costs of prosecution. It’s possible that our democracy functions well, Horwitz hypothesizes, because it “proved itself capable of implementing the rule of law through the democratic process.” (171) Prosecutions might upset that balance by destabilizing the political process (174). Horwitz’s point is important. The rule of law is not only a rule of legalism, but also of politics. Thus, it can manifest itself not just through a juridical form, i.e. prosecutions, but also through politics, i.e. elections.
Of course, the upshot is de facto immunity for Bush officials, who, as Horwitz acknowledges, committed grave harms. True, Bush is no longer in office, but his term was over anyway. Other officials are also out of the political picture. But political banishment is not exactly punishment, as painful as it might be for some. Perhaps the American people (though not the victims) have moved on and would rather not engage in prosecutions, but the risks entailed in prosecution are, at best, speculative, even if plausible. Thus, we are still left with some discomfort that is not alleviated merely by equating the rule of law with election returns.
The last essay, by Stephen Vladeck, seeks to bolster the point that the rule of law can be transmitted in ways more meaningful, and perhaps more effective, than prosecutions. Vladeck compares the Bush transgressions to the internment of Japanese citizens during WWII. Korematsu stands for the impermissibility of internment even though no one was prosecuted for the policy. The evidence about the harm and wrongfulness of internment came out as a result of a public campaign led by the victims. Similarly, the violations to the rule of law done by Bush officials can be remedied without criminal liability, as long as information is in the public record so that the people can make informed judgments (188).
According to Vladeck, we understand that internment was a mistake even though no one was charged, and the same can be achieved regarding post 9/11 crimes. Moreover, if criminal prosecution was initiated, it would be difficult to prove mens rea, and attempts to establish liability can backfire if in the end the OLC’s conduct was to be vindicated (206). For Vladeck, a commission of inquiry will be able to discredit government conduct while creating the important historical record.
It is somewhat difficult to summarize a book containing six very different essays. On first blush, the question seems simple. If, as all the authors in this volume concede, Bush Administration violations can be prosecuted for their alleged crimes, shouldn’t we, in accordance with the rule of law, proceed with such prosecutions? This, however, is just the jumping off point. This is a great book precisely because the authors clearly succeed in demonstrating the complexity and problems with each seemingly simple solution. Neither solution, prosecuting or not prosecuting, will leave the reader completely satisfied, but this is exactly the point.
Ultimately, the events that transpired after 9/11 teach us a valuable lesson about the pliability and malleability of the law. In all the cases that are addressed, the Bush Administration did seek legal cover. Thus, what we have here is not politics shunning law, but politics using law to achieve its ends, even if these ends are illegal. And yet, this is the deep irony. Using law to legalize something which cannot be legalized raises the question of what, exactly, is the role that law plays in its own subversion. The essays in this volume take a meaningful and helpful step in the direction of answering this question.
Adam Shinar is a Clark Byse Fellow and S.J.D. candidate at Harvard Law School.