Law's Wars, Law's Trials

The liberal state is founded on the rule of law, whose core meaning elicits broad agreement and support across the political spectrum. But bitter experience reminds us that the rule of law is most endangered precisely when it is most essential—when the state feels itself threatened: the Miners’ Strike and IRA bombings in the UK and during the two World Wars, Cold War and civil rights and anti-war movements in the US.The “war on terror,” which George Bush declared in response to the 9/11 attack and Barack Obama continued, has committed numerous violations of the rule of law. In this lecture I analyze the fate of the rule of law in the US during those two administrations because those who defend it must maximize their limited resources and political capital in what I fear will be an endless “war on terror.”I begin by examining five principal terrains on which the rule of law has been contested: Abu Ghraib, whose expose by Seymour Hersh and CBS forced the US to confront the sexualized abuse of prisoners; Guantanamo Bay, where hundreds detained indefinitely without charge resisted with the only means available—by interposing their bodies; the tortures that government lawyers authorized for detainees in secret prisons, on the battlefield, and in Guantanamo; the global web of electronic surveillance revealed by the media and Edward Snowden; and crimes committed on the battlefield: extraordinary rendition, secret prisons, targeted killing, and civilian casualties. Then I turn to courts—the institution uniquely responsible for identifying and correcting rule-of-law violations. Here I examine six legal processes: civilian prosecutions of alleged terrorists, military commissions of so-called High Value Detainees in Guantanamo, courts martial of military personnel for war crimes, habeas corpus petitions by Guantanamo detainees, civil damages actions by victims of both the “war on terror” and terrorism, and violations of the civil liberties of Muslims, travelers, demonstrators, and others.This broad canvas allows me to draw comparisons across all these domains, identifying the individuals, institutions, and processes that most and least effectively protected the rule of law. I conclude by offering historical comparisons with other campaigns to redress major social wrongs.