Counter-Terrorism and the Rule of Law
Editor’s Note: This is an excerpt from “Book Review Roundtable: Law’s Wars, Law’s Trials” from our sister publication, the Texas National Security Review. Be sure to check out the full roundtable.
Richard Abel, Law’s Wars: The Fate of the Rule of Law in the U.S. “War on Terror” (Cambridge: Cambridge University Press, 2018) and Law’s Trials: The Performance of Legal Institutions in the U.S. “War on Terror” (Cambridge: Cambridge University Press, 2018)
As the long post-9/11 era of U.S. counter-terrorism enters its third decade, it has grown easier to identify distinct genres within the sizable body of work assessing the legal costs of U.S. actions. One body of work has focused squarely on the damage counter-terrorism policies have inflicted on individual civil liberties and human rights, including how expansive surveillance compromised the right to privacy, how torture and abuse undermined the promise of human dignity, how indefinite detention of some individuals violated the right to liberty, and how particular acts of targeted killing violated the right to life. Such policies implicated, and at times transgressed, a long list of prohibitive rules codified in domestic and international law and designed to limit the kinds of things governments can do to people in the name of national security.
A second collection of work has looked at the damage wrought by the post-9/11 wars on legal and political institutions, on process values of regularity and fairness, and on the ability of legal structures to constrain government power or hold it to account. It is a body of scholarship commonly characterized by its attention to the much used and abused concept of “the rule of law.”
While the rule of law is today invoked with increasing frequency as though it is synonymous with “the list of rules,” the phrase classically meant something quite different. Rule of law referred to the core principles and institutional structures by which any lawful action may be taken and by which any legal rule may be applied, interpreted, or changed. Without hoping to engage the many libraries’ worth of scholarship devoted to debating what those principles are, few would dispute that they include the very basic idea that people will be governed by publicly available rules that are known in advance, are applied equally in all cases according to their terms, and are binding on both private individuals and the conduct of the government itself. In works focused on the rule of law, the concern is with how policies were introduced and implemented. Did the president have the constitutional authority to take a particular action? Did the secrecy surrounding government action compromise the ability to hold public officials to account? Were like cases treated alike, according to fixed or predictable applications of law, or did the government slip into seemingly arbitrary assertions of power?
Richard Abel’s sweeping two-volume collection fits firmly within the latter body of work. It aims not to catalog particular violations of legal rules after 9/11, but rather to examine how legal structures built for constraining power, inside the government and out, fared in pushing back against those violations. The answer he offers is mixed: “[D]efenders of the rule of law achieved only partial victories — all that is ever possible.”
In one sense, it is hard to contest that conclusion, particularly when so many of the policies studied in Abel’s books, as well as the institutional responses to them, are still unfolding. Forty detainees remain at Guantanamo Bay, for example, while multiple legal cases involving those detainees are pending in U.S. federal court. Proceedings in military commissions are now entering their 17th active year. CIA “black sites” and “enhanced interrogation techniques” are formally no longer part of the U.S. repertoire, but 2016 presidential candidate Donald Trump campaigned and won on a platform that called for a resumption of such techniques. Efforts continue apace in U.S., foreign, and international courts to hold original perpetrators of torture to account. Analogous policy issues continue to arise as U.S. forces are still in Afghanistan and Iraq, and continue to carry out counter-terrorism missions in multiple other countries. The wisdom and legality of operations in putative service of those missions — including, for some, the controversial strike last year against Iranian Gen. Qasem Soleimani — remain a chronic part of the national political debate today.
Yet even within the existing record, Abel’s account leaves unclear what he would consider a more decisive victory for the rule of law. While Abel regularly describes failures to correct or punish government officials who violated laws as failures of the rule of law, not all post-9/11 excesses or accountability gaps are attributable to failures of the particular structural checks he describes. Or, as the examples below illustrate, they may reflect rule-of-law problems in some institutions but not others.
The distinction is not merely semantic. Calling an action a threat to or failure of the rule of law — an accusation made with frequency and accuracy against the Trump administration — can have serious rhetorical and practical effects. Just as false claims about the structural integrity of elections may destructively undermine confidence in American democracy, misplaced claims about the threat to structural legal norms can be used to justify extraordinary institutional responses that may themselves undermine the rule of law. Moreover, even where underlying structural or process failures exist, they may be the result of institutional deficits unrelated to failures of legal rules or norms. In those cases, viewing the problem as primarily legal in nature risks obscuring the need for other vital reforms. Quite often — as was certainly the case in many of the government’s post-9/11 errors — there are failures of more than one kind occurring at once, and there is ample institutional blame to go around. As institutions today work to recover from the exceptional Trump presidency, it seems essential to make sure the post-9/11 story is told in a way that squarely diagnoses what went wrong.
Trading One Rule Violation for Another
Consider one of the episodes Abel invokes to demonstrate a failure of the rule of law: the Obama Justice Department’s decision not to move forward with prosecuting federal agents implicated in the torture-related deaths of two detainees in U.S. custody. As Abel recounts, Attorney General Eric Holder explained the decision not to prosecute by citing Justice Department investigators’ conclusion that “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.” Critics of the decision, including the New York Times editorial board, called “the implications for the rule of law … deeply troubling.” Abel ultimately agrees, describing the failure to secure prosecutions for such offenses as the “rule-of-law defenders’ … greatest defeat.” Because no court had been able to declare such conduct criminally unlawful or formally punish the perpetrators, “rule-of-law [i.e., law] violators can keep claiming their actions were legal.”
Having labored extensively to document scores of detainee deaths in U.S. custody since 9/11, including those who had been tortured to death, I well recall the acute disappointment of Holder’s announcement. Yet, a failure to prosecute seems an inadequate place to lay blame. Prosecutors decide not to move forward with cases for lack of sufficient admissible evidence all the time. And the prospect that there was insufficient admissible evidence to win these cases was unfortunately plausible. As my colleagues and I discovered in combing through the government’s own investigative reports, the initial mishandling of evidence by various personnel often put ordinary criminal prosecution out of reach. Notwithstanding, for example, a U.S. Army medical examiner’s report finding that a detainee in U.S. custody had been strangled to death, the physical evidence that would have been required to prove his cause of death was destroyed due to the detainee’s body having been left on an Iraqi airport tarmac for hours in the blistering heat. Similar problems arose when multiple individuals participated in an interrogation over time. There might be sufficient ordinary evidence to establish the specific culpability of some participants, but not all.
Abel is entirely right to see non-prosecution in such cases as tragic. He would be equally right to call such decisions a failure of justice. But it is not at all clear that non-prosecution was a failure of the rule of law. On the contrary, for the Justice Department to attempt to secure a criminal conviction in a case despite conventionally inadequate proof would risk weakening the regular evidentiary safeguards that aim to make the criminal process fair. No ordinary application of the existing public rules of evidence in such a case would suffice. It would lead us away from the application of ordinary law, publicly known and equally applied. It would likewise risk damaging the credibility of the Department of Justice — an indispensable institution, but not the one responsible for the evidentiary failures that made prosecution impossible. Torturing detainees violated the rules. Asserting state power to evade ordinary rules of evidence risks violating the rule of law.
If evidentiary obstacles were to blame for the decision not to prosecute, a rule-of-law-protecting response to the problem would focus on other ways to make clear the social and political condemnation of the practice of torture — by, for example, imposing adverse career consequences on perpetrators of torture and abuse. It would also address any failures that took place at the evidence-collection stage by holding individuals who failed to preserve evidence to account through internal disciplinary processes (including the military justice system) and by strengthening the availability of those accountability measures, as well as the procedures and training that support them. There may well have been rule-of-law failures in those earlier stages. But whether any efforts were made to address those failings in response to the deaths Holder declined to prosecute is a topic Abel does not address.
Missing Policy Failures for Law
Other examples that Abel considers involve a mix of failures — some attributable to different institutional failings, some more accurately characterized as failures of the rule of law. Take the original February 2002 “torture memo” produced by the Justice Department’s Office of Legal Counsel. The infamous memo informed federal agencies that interrogation techniques could not be considered a violation of the criminal law against torture unless they produced a level of pain “equivalent in intensity to the pain accompanying … organ failure … or even death.” Abel rightly identifies the memo as “enabling those practices” that resulted in abusive interrogation after 9/11. Parts of the torture memo can be said to pose a serious challenge to the rule of law. But it was not the implausibly narrow definition of torture the memo embraced that caused bipartisan legal condemnation and led the Bush administration itself to withdraw it. It was the office’s claim — without engaging the most relevant legal authorities — that the ordinary federal criminal law against torture did not apply to constrain those acting on behalf of the president of the United States. Here was a rule-of-law failure in the extreme: An internal executive branch structure designed to promote adherence to the constitution’s separation of powers (an allocation giving Congress the power to enact criminal prohibitions against torture) instead promoted its evasion.
Yet, the Office of Legal Counsel was hardly alone in contributing to the torture and abuse of detainees that Abel recounts in several chapters of his book. While Bush administration defenders touted the importance of flexibility in U.S. counter-terrorism, organization theorists had long recognized the importance of systems, planning, and process in security management and response. Indeed, while Abel criticizes vague and erroneous legal guidance and inadequate criminal prosecution for what went wrong in U.S. detention operations, it would be a mistake to view the prisoner abuse at Abu Ghraib, for example, as a rule-of-law failure alone. Among other things, as military investigators ultimately found, “pre-war planning had not included planning for detainee operations” in Iraq. Indeed, the 372nd Military Police Company — the unit in charge of military police operations at Abu Ghraib during the period when the worst abuses were taking place — was a combat support unit with no training at all in detainee operations.
It is entirely reasonable for Abel to focus his book on the performance of legal structures, rather than, for example, political or military institutions. But ignoring the multifarious causes of disasters like Abu Ghraib risks overstating the extent to which the failure belongs to legal structures alone. It may also obscure the importance of reforms beyond those that checks to the rule of law alone can reasonably provide.
In this era of extreme political polarization, it is essential to remain clear-eyed about the distinctions between official behaviors that violate the rules, and those that compromise the rule of law. The post-9/11 era featured more than its share of policy and organizational failures, and far more rule-breaking in the treatment of detainees than any good government should tolerate. And efforts by leaders and advocates to craft what remedy they still can for those behaviors should and do continue. But it would be a mistake to sell short the extent to which commitments to the rule of law in the national security realm remain. Despite stark legal and policy disputes over the propriety of the military detention of U.S. citizen Yaser Esam Hamdi, an alleged Taliban fighter handed over to U.S. forces in Afghanistan in 2002, the Supreme Court voted 8-1 to require that Hamdi have access to legal counsel and an opportunity to challenge the legality of his detention before an independent court. Even this past year, though members of Congress differed sharply over the wisdom of the Soleimani strike, one of the very few bills that won bipartisan majorities in both the House and the Senate was war powers legislation aimed at securing Congress’s institutional involvement in any decision to embark upon a major new conflict with Iran. And despite Trump’s extraordinary efforts to engage the uniformed military in policing domestic political protests, the bipartisan condemnation of those efforts, as well as condemnation from within the military itself, should offer some reassurance that America has thus far weathered the post-9/11 era with some core rule-of-law beliefs intact.
Where one can find them, such bipartisan expressions of a commitment to shared principles are essential in helping to shore up slipping confidence in governmental institutions. They enable officials to rebuild some muscle memory of what it is like to govern across partisan lines and to reinforce normative beliefs in law’s ability to constrain power. And they offer some cause for hope that when the inevitable next set of rule violations arise, there remains a rule-of-law system still able, over time, to correct itself.
Deborah Pearlstein is professor of law and co-director of the Floersheimer Center for Constitutional Democracy at Cardozo Law School in New York. From 2003 to 2007, she served as director of the Law and Security Program at the Washington, D.C.-based NGO Human Rights First.