(Im)Plausible Legality: The Rationalization of Human Rights Abuses in the
American “Global War on Terror”
By Rebecca Sanders
Ph.D. Candidate
University of Toronto
[email protected]
416-960-0738
Paper presented at the British International Studies Association American Foreign Policy
Conference
University of Leeds, UK
September 14, 2010
Draft version – please do not quote without permission
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The shadowy world of secrets and lies associated with intelligence agencies has
always coexisted uneasily along side the rule of law, individual freedoms, and checks on
government power favored by democracies. Post 9/11, this tension reemerged as a central
theme in American political debate, reflecting the growth of controversial interrogation,
detention, and surveillance practices. While observers are largely agreed that a perfect
storm of a terrifying homeland attack, the frightening “otherness” of Islamic militants,
and the pre-existing ideological proclivities of the Bush administration combined to
facilitate extensive human rights abuses, how precisely to characterize America’s
embrace of various forms of torture, extraordinary rendition, permanent imprisonment,
and warrantless wiretapping remains subject to interpretation.
This paper focuses on one important dimension of this interpretive puzzle namely the role of legality in shaping US counterterrorism policy. Different conceptual
and historical models are available for comparison. Political theorists are increasingly
drawn to a “state of exception” frame, often analogized to the growth of fascism. As the
neutral, independent rule of law recedes, sovereign power reveals itself as the real source
of order. Alternatively, the doctrine of “plausible denial” favored throughout the Cold
War has a more American pedigree. Human rights abuses at home or abroad, unsavory
alliances, and illegal activities are pursued covertly with the intent of evading discovery,
responsibility, and justification.
While both models capture important dimensions of contemporary forays into the
“dark side” in the name of emergency necessity, this paper suggests that the so-called
“Global War on Terror” (GWOT) differs in several respects. On the one hand, abuses
have become official government policy, publicly justified and legally defended by top
administration lawyers. Yet on the other, for the most part, the constitutional order has
not been suspended in favor of unmitigated sovereign power. Rather, a doctrine of
“plausible legality” distinguishes the post 9/11 period from previous precedents. Legal
opinions have attempted to reinterpret the positive law to authorize abusive policies.
They have been carefully crafted to maximize immunity for human rights violations,
minimize responsibility for decisions, and avoid criminal accountability mechanisms.
Despite widespread criticism from lawyers and rights advocates, this strategy of legal
rationalization has proved remarkably effective. It has allowed human rights abusers to
‘get away with it.’
The exploration of “plausible legality” sheds lights on the relationship between
legality and state security practice. While law does impose explicit and consequential
restrictions, its constraining capacity is partial and limited. Indeed, law as conceived by
certain Bush executive strategists has actually enabled several controversial policies, not
simply by providing a cloak of legitimacy, but by partially framing the underlying logic
of action. Law’s ambiguous relationship to contemporary counterterrorism should prompt
renewed attention to the connection between law and power by international relations
theorists and human rights advocates.
Human Rights Abuses in the American “Global War on Terror”
While new details are constantly emerging, human rights abuses by American
security agents in the conduct of the GWOT is old news. Several factors colluded to
produce these violations. For the first time since Pearl Harbor, the US found itself
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directly under attack by a faceless adversary. Public fear and anger along with policy
makers’ anxious desire to prevent another strike helped legitimize “a whatever it takes”
attitude. Pundits, academics,1 and even TV shows like Fox’s 242 fuelled the flames with
“ticking bomb” scenarios.3 Meanwhile, the seemingly impenetrable religious, racial, and
cultural difference of Muslim extremists served to dehumanize them in the eyes of many.
Combined with the hawkish predilection for military aggressiveness and executive power
held by Bush, Cheney, and their national security team,4 US inexperience with direct
intelligence interrogation and detention in the post-Vietnam era, and the frustratingly
asymmetrical, amorphous nature of Al Qaeda, these conditions created a context ripe for
the growth of abusive practices.
Evidence points to the systematic application of torture and “cruel, inhuman, and
degrading” (CID) techniques in military and intelligence interrogations at the
Guantánamo Bay (GTMO) prison camp, overseas military bases and prisons, and
mysterious CIA “black sites.”5 Declassified memos, reports, and congressional
investigations suggest torture emulated the simulated torture used by the Survival
Evasion Resistance Escape (SERE) training program, itself premised on the actual torture
experience of American captives.6 Methods have included physical and sexual assault,
stress positions, environmental and dietary manipulation, prolonged isolation, sleep
deprivation, inducement of fear and humiliation, and most famous, but relatively less
common, “waterboarding,” the purpose of which was to induce “learned helplessness,” a
state of psychological and physical dependence that breaks down detainee will to resist.
In other cases, countries known for their brutality like Egypt, Syria, Jordan, Morocco,
Afghanistan, Pakistan, and Uzbekistan tortured suspects after they were subject to
“extraordinary rendition” or deportation outside legal channels and safeguards.7 Upon
entering office, President Obama denounced torture, mandated humane treatment, and
pledged to close Guantánamo.8 However, concerns remain about rendition and detention
conditions abroad.9 Moreover, the Obama administration has embarked on a highly
controversial program of “targeted killing,” often by means of unmanned aerial vehicles
or drones employed outside of traditional military theatres.
In addition to torture, the post 9/11 detention and trial regime transgressed laws
and norms. Within the US, immigration detention and material witness warrants were
stretched to hold thousands of Muslim men incommunicado after 9/11.10 Abroad,
captives have been denied Geneva protections and status review hearings, been subject to
the invented category of “unlawful enemy combatants,” been held indefinitely and
sometimes secretly without trial, and often lack access to legal counsel. Attempts at
instituting trial procedures have proved just as problematic. President Bush’s Military
Commissions failed to provide minimum due process standards.11 Much to the chagrin of
human rights advocates, the Obama administration has kept modified military
commissions on the table and is currently prosecuting Omar Khadr, considered by many
to be a child soldier, in such a forum. The one-year timeline for the Guantánamo prison’s
closure has long passed. Even if it does eventually shut down, many fear the creation of a
“Guantánamo North.”12 The president has made clear that there are prisoners that cannot
be tried or released, the only other alternative presumably being continued indefinite
detention.13
Closer to home, domestic spying became institutionalized under the Bush
administration. The PATRIOT Act extended existing intrusive powers like National
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Security Letters, now widely used by the FBI.14 Innovations included the “Terrorist
Surveillance Program” (TSP), itself just one component of the still classified “President’s
Surveillance Program” (PSP), which mandated the National Security Agency, a foreign
intelligence agency, to spy domestically on Americans without a legally required search
warrant.15 With the explosion of privately owned fiber optic networks,16 the TSP relied
on partnerships with the nation’s leading telecom firms, sparking intense debates over
corporate responsibility and immunity. Once again, the new administration has failed to
make a clean break. The executive continues to put forth sovereign immunity and state
secrets claims to block investigations and litigation regarding warrantless surveillance.17
All this18 is not for lack of laws. In fact, the international human rights and
humanitarian legal regimes and domestic American protections were better developed by
the turn of the millennium than any time previously. Prohibitions on torture are absolute
and non-derogable. In addition to being considered a jus cogens peremptory norm in
customary law, torture and CID are barred by the Geneva Conventions, the Convention
Against Torture (CAT), and the International Covenant on Civil and Political Rights
(ICCPR). Historically, the US was one of the first to pioneer rules of treatment with the
Civil War era Lieber Code. Domestically, the federal anti-torture statute, the War Crimes
Act, the Uniform Code of Military Justice (UCMJ), the Army Field Manual, and the
United States Constitution forbid abuse. US immigration law and the international
principle of non-refoulment prohibit deportation to torture.
Likewise, habeas corpus has been a core rule of law norm for centuries.
Customary international law, the Geneva Conventions, and the ICCPR lay out due
process standards in military and non-military contexts. The US Bill of Rights clearly
demands due process in civilian courtrooms, as does the UCMJ in military contexts. On
the other hand, surveillance law is less well developed. Despite the general principle of
national sovereignty, no international convention specifically regulates intelligence
surveillance. Domestically, however, the Fourth Amendment bars warrantless search and
seizure while the Foreign Intelligence Surveillance Act (FISA) bars domestic intelligence
surveillance without special dispensation from the Foreign Intelligence Surveillance
Court (FISC).
As such, it seems reasonably clear that international and US law prohibits the
above-described abusive practices. The extent of these legal frameworks in conjunction
with the reality of post 9/11 abuses thus raises the question, how and why has law
constrained and failed to constrain security and intelligence practice? What role did law
play in preventing, not preventing, or even enabling abuses? Several alternatives are
explored in the following sections.
State of Exception: The “Legal Black Hole”
Theorists have increasingly interpreted the Bush administration’s approach to law
within the framework of emergency, siege, and exception.19 Drawing comparisons with
dictatorships, advocates of this approach understand post 9/11 policies along a
continuum, often ending in fascism. The leadership not only breaks the law and commits
abuses; it invokes unlimited authority to justify the evisceration of the rule of law and the
suspension of rights protections. In doing so, the emergency exception risks becoming the
permanent rule.
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The concept of prerogative, the exercise of arbitrary or discretionary political
power outside the rule of law, has long concerned liberal constitutional thinkers. In the
Lockean tradition, when law is silent or when faced with situations of emergency, rulers
may be compelled to invent or even go against the letter of the law in the interest of the
greater good. “Prerogative is nothing but the power of doing publick good without a
Rule” writes Locke.20 But “who shall be Judge when this power is made right use of?” he
asks. Only “appeal to Heaven,” he suggests, is possible if rulers and the people
disagree.21 The concept of prerogative ironically shares much in common with the
formulation of sovereign power articulated by one of the greatest critics of the liberal rule
of law, Weimar and later Nazi jurist Carl Schmitt, whose ideas are often referenced in
accounts of post 9/11 politics. Schmitt’s conceptualization of emergency calls into
question the fundamental constitutive relationship between law, including basic domestic
constitutional structures, and power.
Schmitt argued that exception and rule, power and law are mutually dependent.
As articulated in the famous formulation, “Sovereign is he who decides on the
exception,”22 exceptions occur when power beyond the law identifies a threat that cannot
be addressed within the rules, thus ushering in a state of exception that is not derived
from preformed norms or law.23 In this way “the exception in jurisprudence is analogous
to the miracle in theology.”24 Like the miracle, there is no way to define or anticipate the
exception.25 This reveals the nature of sovereign power, which is fundamentally the
“monopoly to decide.”26 It is the exception, not the rule, which unmasks the real basis of
the legal order and the liberal fiction of the neutral rule of law. As Strong explains, “if
life can never be reduced or adequately understood by a set of rules, no matter how
complex, then in the end, rule is of men and not of law-or rather that the rule of men must
always existentially underlie the rule of law.”27
Italian political theorist Giorgio Agamben has become one of the most popular
interlocutors in the Schmittian revival. Agamben argues that the state of exception has
become a permanent omnipresent possibility in modern political order. It is the
“dominant paradigm of government in contemporary politics,”28 the primary “technique
of government” and the “constitutive paradigm of the juridical order.”29 In his biopolitical reading, exceptions have the power to reduce undesirables to homo sacer or
“bare life” that can be killed but not sacrificed, to life that lacks value and is constantly
subject to violence. For Agamben, the victims of Nazi concentration camps were the
ultimate bearers of this condition. The camp is the place where “everything is possible,” a
space of stable normalized exception where “the sovereign no longer limits himself...to
deciding on the exception on the basis of recognizing a given factual situation (danger to
public safety): laying bare the inner structure of the ban that characterizes his power, he
now de facto produces the situation as a consequence of his decision on the exception.”30
The camp collapses inside/outside, exception/rule, and licit/illicit, making the concept of
juridical protection meaningless. According to Agamben, America’s post 9/11 policy,
particularly detainment at Guantánamo, is comparable to the Nazi lager.31
Many scholars have emphasized the similarities between the Bush
administration’s theory of executive power and the Schmittian concept of the sovereign
decider. As explained by Scheurman, “In the spirit of Carl Schmitt, influential voices in
the administration interpret the executive branch’s authority to determine the fate of
accused terrorists along the lines of a legal black hole in which unmitigated discretionary
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power necessarily holds sway.” They advocate a fundamentally “norm-less realm of
decision making.”32 The “legal black hole” of indefinite detention and attacks on habeas
corpus protections at Guantánamo have gained particular attention from critics.33 The
administration’s “lawfare” doctrine, notes Horton, went so far as to cast human rights
lawyering as synonymous to terrorism, echoing Schmitt’s critique of liberalism and
veneration of politics over justice.34
For popular authors like Naomi Wolf, the post 9/11 world has “historical echoes”
of fascism, contemporary events are “mirrored in history.”35 She proceeds to make
numerous comparisons, analogizing the rhetoric of the administration to that of the
Nazis.36 More importantly she argues, there is a “structural echo”: “the way dictators take
over democracies or crush pro-democracy uprisings by invoking emergency decrees to
close down civil liberties; creating military tribunals; and criminalizing dissent.”37 By
invoking threats, establishing secret prisons, developing paramilitary forces, surveilling
and infiltrating ordinary citizens groups, arbitrarily detaining people, targeting
individuals and restricting the press, casting dissent as treason, and subverting the rule of
law, the Bush administration set America on a path towards the fascist tipping point.
There is no doubt that much in the contemporary period lends itself to the concept
of a state of exception. Scholars have noted that appeals to emergency have infected US
constitutional order since the beginnings of the Cold War38 and that constant presidential
demands for emergency powers have eroded distinctions between war and peace.39 As
Nixon summed up his version of the “imperial presidency” over thirty years ago, “When
the president does it, that means it’s not illegal.”40 This has overtly manifested post 9/11
with the invocation of the theory of the “unitary executive” by the administration.
Arguing that Article II of the constitution gives the president exclusive control of
defense, proponents exempt the executive from congressional oversight or judicial
scrutiny. Echoing the language of exception, John Yoo gives the president absolute
monopoly to decide: “The Framers…created an executive with its own independent
powers to manage foreign affairs and address emergencies which, almost by definition,
cannot be addressed by existing laws.”41 In war, the normal rules no longer apply.
This aggressive assertion of executive power is evident in the huge number of
executive orders and “presidential signing statements” issued by the Bush administration.
For example, the McCain Amendment to the Defense Appropriations Bill of 2005
attempted to prohibit CID treatment of prisoners. Upon signing, President Bush
essentially declared the law not binding: “The executive branch shall construe Title X in
Division A of the Act, relating to detainees, in a manner consistent with the constitutional
authority of the President to supervise the unitary executive branch and as Commander in
Chief.”42
The legal rationales underlying warrantless surveillance further illustrate this
paradigm. In authorizing the NSA to spy domestically on Americans without a FISC
warrant, the administration simply ignored FISA. To justify this apparently illegal order,
the Department of Justice claimed presidential prerogative in matters of war43: “The NSA
activities are supported by the President’s well-recognized inherent constitutional
authority as Commander in Chief and sole organ for the Nation in foreign affairs to
conduct warrantless surveillance of enemy forces for intelligence purposes to detect and
disrupt armed attacks on the United States.”44
However, despite echoes of Schmittian jurisprudence, in practice wild claims of
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executive authority have not generally been the sole basis for conducting controversial
programs. As will be discussed later, legal rationales for controversial policies were
formulated with a distinct awareness of myriad legal restrictions on certain practices. The
constitutional order was not suspended. More often than not, congress cooperated with
the executive on matters of national security, delivering the PATRIOT Act, the Military
Commissions Act, and the FISA Amendments Act. Indeed many claims of executive
authority were gratuitous and unnecessary to achieve desired ends.45 While Supreme
Court rulings have remained relatively deferential to presidential power on matters of
national security,46 the courts have continued to play an independent role, rejecting at
least some executive arguments in Hamdi, Hamdam, Rasul, and Boumedienne. As much
as it may have wanted to, the Bush administration did not blatantly ignore contrary
judgments.47
Moreover, programs like the TSP were conducted in total secrecy until revealed
by the New York Times in 2005. The White House frequently stonewalled congressional
subpoenas.48 Despite its tough rhetoric, it appears the Bush administration was not eager
to openly declare a state of exception or justify a turn to emergency powers. Clearly,
executive power has grown tremendously, but not anything is possible in this context.
With some interesting exceptions, the United States has not overtly claimed the right to
torture people, put prisoners in concentration camps, ignore the Bill of Rights, or break
international treaty obligations.49 In this sense, how post 9/11 policy is different from, not
simply similar to the exception paradigm, is important for understanding the terrain of
contemporary human rights abuses.
Plausible Deniability: “No Blood, No Foul”
Throughout post WWII American history, the doctrine of “plausible denial” was
ubiquitous. Yet it has been a less common frame of reference for analysts seeking to
understand contemporary developments. Most observers perceive that something
important is different after 9/11 - that old patterns of conduct have changed. Nonetheless,
there are echoes of this paradigm in the current day that are worth exploring.
Unlike a state of exception, practices conducted under the cover of plausible
denial do not suspend the law or openly transgress norms, but violate them stealthily. The
demand for denial evinces awareness of the distinction between legality and illegality and
the risk of sanction, embarrassment, and blowback that might accompany the latter.
While secrecy to protect “sources and methods,” for instance to conceal the identity of an
informer, is a legitimate necessity for clandestine intelligence collection, plausible denial
has traditionally been associated with covert action. Covert action denies agency. As
explained in NSC 1012, covert operations should be “so planned and executed that any
U.S. Government responsibility for them is not evident to unauthorized persons and that
if uncovered the U.S. Government can plausibly disclaim any responsibility for them.”50
Covert action ranges from propaganda, to financial aid, to violent intervention. As
defined by contemporary US law, covert action is “an activity or activities of the United
States Government to influence political, economic, or military conditions abroad, where
it is intended that the role of the [government] will not be apparent or acknowledged
publicly.”51
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For much of the Cold War, plausible denial of covert action was the name of the
game. Long time intelligence journalist Thomas Powers captures the ethos. “Think of
intelligence organizations as the instrument of a nation’s id-the desire of a government to
do certain things without having to explain, defend, or justify them. Fairness, justice,
restraint and respect for the rights of others may be important terms in the public
language of international politics” he notes, but when a state feels threatened it “may seek
recourse outside of official remonstrance and international law, and may seek to impose
its will in secret with methods it would never confess publicly.”52 As the 1954 Doolittle
Report put it, the threat of an “implacable enemy whose avowed objective is world
domination by whatever means and at whatever cost” necessitated that “hitherto accepted
norms of conduct” cease, that “long-standing American concepts of “fair play”” be
reconsidered, and that “no one should be permitted to stand in the way” of the
“fundamentally repugnant philosophy” of ruthless covert action.53
Avoiding Soviet retaliation, conflict escalation, and counter-espionage were
pragmatic motives for secrecy. But stealth concerned more. For instance, “backfire,”
Secretary Rogers told Kissinger in the context of America’s support for General
Pinochet’s coup in Chile implied “Getting caught doing something. After all we have
said about elections, if the first time a Communist wins the U.S. tries to prevent the
constitutional process from coming into play we will look very bad.”54 Through omission
and commission, plausible denial facilitated intelligence activities that violated other
countries’ sovereignty, promoted anti-democratic forces, engaged in paramilitary
violence, or was implicated in illegal, immoral, or hypocritical behaviors.
American covert policy took many problematic forms over the years. The CIA
secretly manipulated elections and distributed propaganda in post war Europe.55 They
backed coup attempts in Iran, Guatemala, Indonesia, Vietnam, Cuba, Congo, Chile,
Greece, and Pakistan.56 Assassination plots targeted Fidel Castro, Rafael Trujillo, and
Patrice Lumumba,57 while spooks toyed with mind control and psychological torture
experiments.58 Proxies waged vicious wars in Central America, Southern Africa, South
East Asia, and Afghanistan. Dictatorial allies with infamously poor human rights records
received financial aid, political support, and officer training at places like the School of
the Americas.59 Meanwhile, on the home front, American intelligence agencies illegally
spied on and sabotaged civil rights, new left, and anti-war organizations.60 As
characterized by the ground breaking Church Committee reports of the mid 1970s:
“Previous excesses of drug testing, assassination planning, and domestic activities were
supported by an internal structure that permitted individuals to conduct operations
without the consistent necessity or expectation of justifying or revealing their
activities.”61 Human rights abuses were not the declared policy of emergency
government, rather secrecy created an atmosphere of amoral impunity.
Undoubtedly, covert operations to influence political outcomes around the world
continue today. More importantly, counterterrorist activities have increasing come to
resemble covert action, blurring the line between intelligence and paramilitary activities.
Such operations are often unacknowledged rather than traditionally covert, are “overt
covert.”62 As Vice President Cheney explained in language echoing the sentiments of
earlier eras, “We also have to work, though, sort of the dark side, if you will. We’ve got
to spend time in the shadows in the intelligence world. A lot of what needs to be done
here will have to be done quietly, without any discussion, using sources and methods that
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are available to our intelligence agencies, if we’re going to be successful. That’s the
world these folks operate in, and so it’s going to be vital for us to use any means at our
disposal, basically, to achieve our objective.” According to Mayer, Cheney studied the
notorious Vietnam Phoenix Program – “a program of state sanctioned torture and
murder” as a model.63
Post 9/11 versions of the “repugnant philosophy” included the practice of
extraordinary rendition that outsourced brutal torture of alleged terrorists to proxies.64 For
example, Canadian citizen Maher Arar faced months of horrific interrogation in Syria
after he was secretly deported by US authorities.65 Rendition denial is key for all parties
involved. The US cannot justify blatant torture and receiving Muslim states fear the
political consequences of close cooperation with America. Overwhelming evidence
suggests such denials are, to put it politely, prevarication.
In addition to ghost prisoners, torture denial has taken other forms. As Rejali
documents in his extensive study, many interrogation techniques like stress positions,
isolation, sleep deprivation, environmental manipulation, and water torture favored in the
GWOT have a long pedigree in democracies that are concerned about public image
because these methods leave few obvious scars or marks, making them difficult to prove.
“Public monitoring leads institutions that favor painful coercion to use and combine clean
torture techniques to evade detection, and, to the extent that public monitoring is not only
greater in democracies, but that public monitoring of human rights is a core value in
modern democracies, it is the case that where we find democracies torturing today we
will also be more likely to find stealthy torture”66 he explains. Without the photographic
evidence that emerged at Abu Ghraib, it would arguably have been near impossible to
establish the extent of abuses. Not surprisingly, the CIA destroyed waterboarding tapes of
Abu Zubaydah and al-Nashiri.67 At Camp Nama in Iraq, the walls “were posted with
placards warning against leaving marks on the detainees, with the motto “No Blood, No
Foul,”” reports Mayer.68
Knee jerk secrecy has been pervasive since 9/11 in variety of contexts. Previously
available documents were reclassified, banal inquiries were made subject to Freedom of
Information Act requests, journalists who produced critical stories were denied access to
policy makers, and leaking was made subject to increased sanctions.69 “Secrecy was both
the Bush administration’s rhapsody and its ruin,” notes Lichtblau.70 While President
Obama has increased openness with the declassification of several important OLC
memos and investigative reports, secrecy continues. For example, when British judges
planned to release information about British intelligence agency involvement in torture,
Secretary of State Hilary Clinton threatened to end intelligence cooperation.71 President
Obama reversed his earlier decision to make more Abu Ghraib photographs publicly
available. The government has invoked sovereign immunity and the so-called “state
secrets privilege” to block disclosure of illegal domestic surveillance evidence, in many
ways endorsing the position of the previous administration.72
Despite the post 9/11 turn to covertness, secrecy has hardly been effective or long
lasting. As Olson notes, “The U.S. intelligence community has been under a magnifying
glass: second-guessed at every turn, criticized in Congress, and lambasted in the press.
Long gone are the days when American spies could do whatever they needed to do
“quietly, without any discussion.””73 Journalists and human rights investigators have
revealed an extraordinary amount of information about security and intelligence
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practices. The current scandal surrounding videos and documents posted online by the
organization Wikileaks highlights the extent to which new media can aid disclosure.
Daniel Ellsberg had to surreptitiously photocopy every page of the Pentagon Papers. Now
information can be downloaded almost instantaneously.
Policy makers, moreover, may not always want to conceal their actions. Vice
President Cheney announced America’s embrace of the “dark side.” President Bush
informed reporters that the CIA was using “alternative” procedures of interrogation.
Notwithstanding recent protestations about revealing “sources and methods,”74 just about
all the details of officially sanctioned torture, including waterboarding, were available
long before President Obama’s April 2009 declassifications. While never openly
admitting illegality, the Bush administration was not averse to informing domestic and
international audiences of America’s new tough stance, that as Confer Black told the
Senate, “After 9/11, the gloves come off.”75 Intimidating enemies and building a
reputation for ruthlessness through “shock and awe” theatrics was a significant strategic
goal in itself.76
With these limitations on secrecy in mind, when the harsh light of day inevitably
shone on the administration’s controversial programs, there was always, it appears,
another strategy in the works. This was also a plan of denial, but not the traditional kind.
It would not primarily conceal or deny factual information, but would insist that no laws
were broken.
Plausible Legality: The “Golden Shield”
There are multiple ways in which governments may evade accusations of human
rights violations. As typologized by Stanley Cohen in a pre 9/11 study of state responses
to human rights monitoring, implicatory denial is premised on justifying violations.
Justifications may include asserting the righteousness of a cause, claiming emergency
necessity, blaming and dehumanizing the victim, making advantageous comparisons with
others, and rejecting universal standards.77 As discussed, demonizing the enemy is
especially important to justify suspension of law in regimes of exception. On the other
hand, while enemy images remain pervasive, plausible denial is essentially a form of
literal denial – the claim that violations did not happen or someone else was responsible.
This form of denial is often accompanied by attacks on the credibility and motives of
victims, witnesses, and journalists.78
While exception and plausible denial undoubtedly capture many key elements of
post 9/11 policies, neither fully encapsulates it. As previously suggested, the rule of law
has not been officially suspended. Counterterror rhetoric hints at justifications for human
rights violations, but has been hesitant to overtly transgress bright lines. Meanwhile,
literal denial is difficult to maintain. Secrecy has been uneven – at times ineffective, at
others not desired. Rather, security and intelligence practice in the GWOT are better
understood under a third distinctive paradigm, dubbed here “plausible legality”. This
form of interpretive denial reframes meanings, employs euphemisms and legalisms,
fudges lines of responsibility, and claims abuses are isolated incidents.79 These “evasions
are deployed because some categorizations are so pejorative, stigmatic, and universally
condemned that they cannot be openly admitted or defended,” notes Cohen. Rather, states
will pay lip service to human rights considerations, forcing human rights advocates “to
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reveal the pictorial reality (Orwell's "mental pictures") that lies beneath the intricate
facade of legalism. …to expose the gap between noble rhetoric and actual reality.”80
Debate is shifted to the terrain of interpretation – a struggle made all the more difficult by
its legitimate function in normal legal argument.
Plausible legality combines the desire to break with existing norms found in states
of exception with an awareness of reputational and legal risks apparent in the practice of
plausible denial. It attempts to legalize the exception without publicly suspending the
existing order. It aspires to reconcile the normally irreconcilable – to permit the
impermissible without fully admitting the move. As Lichtblau notes, “For the architects
of this new war, there was a constant drumbeat: the rule of law still had to be followed,
they said, but just what those rules really meant was often malleable, subject to twisting,
flexing, and reinterpreting so long as the tactics were justified to stop another attack.”81 In
doing so, plausible legality hides rather than highlights derogations from the rule of law.
While plausible legality was elevated to a doctrinal level post 9/11, it is far from
unprecedented. The indeterminacy of law has long given lawyers an important role in
granting and withholding legitimacy from foreign policy decisions.82 Scholars have
examined the role of law in justifying the 1962 Cuban missile crisis blockade.83 More
recently, NATO’s intervention in Kosovo without UN Security Council approval raised
questions about the role of lawyers and legality in rationalizing violations of the UN
Charter.84 In a highly legalistic society like the United States, legal considerations are
bound to become entangled in political decisions, manipulated to serve various ends.
In the War on Terror, the Office of Legal Counsel at the Department of Justice,
tasked with advising the executive on matters of law, became the central source of this
legal strategy. As Mayer characterizes it, “the lawyers…were defining the
counterterrorism policy, since the elected officials wanted to do everything that the law
could possibly be said to allow.”85 Perhaps most infamous are the 2002 decisions dubbed
the “torture memos,” largely written by John Yoo and signed by Jay Bybee. The first
memo notoriously argued torture “must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of bodily
function, or even death.”86
Despite their often wildly permissive conclusions, OLC’s opinions claimed
conformity to US obligations under international and domestic law and previous
precedent. Presidents have never been bound by customary international law, the
argument went, only domestically enacted treaties. Whether bombing civilians in WWII
or mining Nicaraguan ports in the 1980s, executives have always claimed the right to
ignore normative constraints.87 John Yoo acknowledges torture is illegal under American
law, while asserting the extraterritorial legality of “cruel, inhuman, and degrading
treatment” under the Convention Against Torture.88 The “terrible nature” of Abu Ghraib
abuses is denounced, but Guantánamo is defended.89 Denial of Geneva Conventions
protections is not exceptional, but appropriate and legal: “Far from radical, President
Bush’s decision drew on traditional rules of war. The customary laws of war have always
recognized stateless fighters as illegal, unprivileged enemy combatants…they were never
allowed the status reserved for legal combatants who obeyed the rules of civilized
warfare.”90 The positive law is, claims Yoo, compatible with the controversial policies
pursued. Critics, not the Bush administration, have attempted to change the status quo.
11
From a critical perspective, this position is not totally baseless. The concept of the
uncivilized, barbarian, stupid savage, incapable of reciprocity and restraint and
unprotected by a “high contracting party” revives the “constitutive other” that emerged
with the founding of humanitarian law. With the universalization of the laws of war after
WWII, such notions became obsolete, but War on Terror rhetoric mimics a real
exclusionary tradition: “the US authorities’ case is often not a case to simply violate or do
away with the law, as much as it is a characteristically strict, almost legalistic
interpretation of the law” notes Mégret.91 Johns argues that Guantánamo is “less an
outcome of law’s suspension or evisceration than of elaborate regulatory efforts by a
range of legal authorities. The detention camps at Guantánamo are above all works of
legal representation and classification. They are spaces where law and legal
institutionalism speak and operate in excess.”92 In this sense, OLC’s dubious and
selective reference to precedent, the adoption of banal proceduralism, and invocation of
pre-existing codes and higher sources of authority suggest a hesitancy to fully embrace
the decisional declaration of the exception.
Plausible legality is driven by several interacting objectives - to maintain
legitimacy, avoid accountability, and establish immunity. It reflects the difficulty of
literal denial and the growth of a litigious culture that restrains exception. One cannot
simply override or ignore law in the contemporary era. As former OLC attorney Jack
Goldsmith suggests, “the main reason why lawyers were so involved is that the war itself
was encumbered with legal restrictions as never before. Everywhere decision makers
turned they collided with confining laws that required a lawyer’s interpretation and-in
order to avoid legal liability-a lawyer’s sign-off.”93 “Three related Washington
pathologies” have created a culture of shallow legality: “the criminalization of warfare,
the blame game, and the cover-your-ass syndrome. Everyone agrees that risks must be
taken to confront the terrorist threats. But no one wants to be blamed when the inevitable
errors occur. Everyone wants cover.”94 For instance, the torture memos were reportedly
solicited by Cheney to convince the CIA to be more aggressive.95 Perceiving that they
had been burned in the past, the agency was hesitant to cross legal lines. The effort was
successful – the memos became their “golden shield.”96 In this sense, legality itself
became a prime mechanism for avoiding responsibility.
Ironically, however, the OLC’s detailed memos did not translate into in depth
training on the ground. Only two weeks instruction were offered to prepare interrogators
for the use of “enhanced techniques.”97 The nuances of legal decisions failed to trickle
down in a timely manner. According to the CIA Inspector General, “No formal
mechanisms were in place to ensure that personnel going to the field were briefed on the
existing legal and policy guidance.”98 In the early days of the war, the CIA Baghdad
station begged for written legal guidelines, but didn’t receive any.99 There was mass
confusion over such basic questions as who exactly was covered by the Geneva
Conventions.100 As a result, interrogators went beyond legal restrictions in several
instances, employing threats, mock executions, and various forms of unapproved physical
abuse. “Agency personnel reported a range of improvised actions that interrogators and
debriefers reportedly used at that time to assist in obtaining information from detainees.
The extent of these actions is illustrative of the consequences of the lack of clear
guidance at that time” explains the IG.101 The line between these “illegal” actions and
legally authorized techniques will doubtless be subject to further controversy.
12
For many observers, the legal decisions generated by the OLC were obviously in
bad faith, they intentionally obscured the law, distorted precedent, and were part of a
“criminal conspiracy.”102 The purpose of this “illegal lawyering” was to commit crimes
by aiding and abetting human rights violations, making the lawyers as guilty as the
perpetrators.103 Legal decisions reflected a “preordained policy of aggression that came
from the very top” notes Sands. Lawyers “gave their names as jurists to cloak the policy
with a veneer of legality” and such, “bear direct responsibility for decisions.”104
This is not to say, however, that legal argument per se caused human rights
violations to occur. Many practices were underway before they were legally authorized.
If lawyers had rejected proposed policy, they would more than likely have been replaced
with more cooperative attorneys – something that did in fact happen on several occasions.
Decisions were kept secret to avoid scrutiny, undermining any real process of peer
review. Even NSA lawyers were denied access to the legal rationales supporting the TSP,
despite responsibility for executing the program legally.105 Secretary of State Powell and
Attorney General Ashcroft were reportedly cut out of the military commissions
decisions.106 Contrary advice from JAG lawyers was completely ignored.107 When courts
rejected legal arguments, the administration sought new legislation to change the law and
immunize past acts. The Military Commissions Act was a direct response to the Supreme
Court’s Hamdam decision108 while the Protect America Act and the FISA Amendments
Act were designed to protect telecommunications firms from lawsuits. As summed up by
Cole, “The pattern is clear: interpret laws, preferably in secret, to permit what they
would, on any standard reading, prohibit. When those interpretations are made public,
aggressively defend them, regardless of their merit…If necessary, seek congressional
authorization after the fact, preferably with retroactive immunity for all who acted on the
administration’s bad advice in the first place.”109
Plausible Legality and the Case of Torture: “A Controlled Acute Episode”
There is ample evidence of the strategy of plausible legality available. We now
know of dozens of memoranda addressing human rights matters, many of which remain
classified. While plausible legality may not have caused abuses in the counterfactual
sense that abuses would definitely not have occurred in their absence, legal arguments
helped set the contours of emerging policies. Because legality was a loose constraint,
existing law posed certain barriers to exceptional security practices while simultaneously
defining the logic of violation. By examining opinions rendered on torture in more detail,
the logic of plausible legality becomes evident.
On the occasion of the 2004 United Nations International Day in Support of
Victims of Torture, President Bush roundly condemned torture, pledging its worldwide
elimination. “Freedom from torture is an inalienable human right, and we are committed
to building a world where human rights are respected and protected by the rule of law” he
nobly declared, going on to note the United States’ ratification of the Convention Against
Torture and its commitment to “investigate and prosecute all acts of torture and undertake
to prevent other cruel and unusual punishment in all territory under our jurisdiction.”110
How could the president make such bold claims in the midst of the new interrogation
regime? Presuming he was not overtly lying, the answer lies in the legal rationales
developed by the administration’s top legal advisors.
13
The absolute nature of the torture prohibition makes violating it within the bounds
of plausible legality difficult. Declaring the inapplicability of the Geneva Conventions
was one of the first moves made towards this goal. Because Al Qaeda was not a state
party and broke the law of war, it was therefore deemed ineligible for its protections. As
Alberto Gonzales famously stated in a 25 January 2002 memo, the war on terror “renders
obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint
some of its provisions.”111 Similar jurisdictional claims were made regarding other laws:
constitutional protections were limited to the sovereign territory of the United States; the
UCMJ applied to the to military, but not to the CIA; only humanitarian law, as in the
discarded Geneva Conventions, not human rights laws like the ICCPR and the CAT were
relevant to conduct in war. Yet despite these assertions, the administration was clearly
cognizant of limitations on legal interrogation, regardless of Geneva POW status. In
particular, OLC memos were highly preoccupied with the 1984 Convention Against
Torture,112 which clearly defines and prohibits torture, at least in so far as it was enacted
in domestic law via the federal anti-torture statute.113 Article I of the CAT instructs that:
For the purposes of this Convention, the term "torture" means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity. It does not
include pain or suffering arising only from, inherent in or incidental to lawful
sanctions.
Article 2 further clarifies that “No exceptional circumstances whatsoever, whether a state
of war or a threat of war, internal political instability or any other public emergency, may
be invoked as a justification of torture.” Article 3 states that “No State Party shall expel,
return ("refouler") or extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected to torture.”
Given such strict and unambiguous rules, the administration’s pursuit of plausible
legality necessitated resort to convoluted legal reasoning, the core claim being that US
interrogation practices did not meet the definition of torture. While the first Bybee memo
or “torture memo,” Bybee I, is well known, the second Bybee memo, Bybee II, released
in April 2009 perfectly illustrates this logic. Building on Bybee I, the memo considers
what rises to the level of torture in terms of inflicting “severe physical or mental pain or
suffering.” Like Bybee I, it concludes that torture requires pain “of an intensity akin to
the pain accompanying serious physical injury.”114 It then examines several techniques
relative to this criterion, ultimately determining that none constitute torture.
For instance, without citing any rationale, the memo opines that “any pain
associated with muscle fatigue is not of the intensity sufficient to amount to “severe
physical pain or suffering” under the statute, nor, despite its discomfort, can it be said to
be difficult to endure.”115 Neither confinement in a box nor sleep deprivation are thought
to do so either. “Even those techniques that involve physical contact between the
interrogator and the individual do not result in severe pain.”116 As to waterboarding we
learn that “the procedure does not inflict actual physical harm. Thus, although the subject
14
may experience the fear or panic associated with the feeling of drowning, the waterboard
does not inflict physical pain.”117 Rather, “The waterboard is simply a controlled acute
episode, lacking the connotation of a protracted period of time generally given to
suffering.”118 Assuming an absence of undefined “substantial repetition,” the memo states
that “Even when all of these methods are considered combined in an overall course of
conduct, they would still not inflict severe physical pain and suffering.”119
As to mental pain and suffering, the memo concludes that “it is plain that none of
these procedures involves a threat to any third party, the use of any kind of drugs, or for
the reasons described above, the infliction of severe physical pain.”120 Thus the legal
question hangs on whether the conduct “constitutes a threat of severe physical pain or
suffering, a procedure designed to disrupt profoundly the senses, or a threat of imminent
death”121 – assuming the subject is a “reasonable person.” No threats, conclude the
memo, can be inferred from the actions themselves – “the type of actions that could be
reasonably anticipated would still fall below anything sufficient to inflict severe physical
pain or suffering.”122
In a characteristic twist of logic, the memo argues that although the waterboard
“constitutes a threat of imminent death” it is not severe mental pain and suffering because
“based on your research into the use of these methods at the SERE school and
consultation with others with expertise in the field of psychology and interrogation, you
do not anticipate that any prolonged mental harm would result from the use of the
waterboard.”123 The same rationale applies to the application of the techniques in an
escalating fashion – even if they were reasonably inferred to be a threat of severe
physical pain or death – no prolonged mental harm is anticipated. If no severe physical or
mental pain or suffering or prolonged mental harm is anticipated in good faith, there is no
crime: “Because specific intent is an element of the offense, the absence of specific intent
negates the charge of torture.”124
In a particularly convoluted passage referring to the introduction of an insect into
a confinement box, the direct advisory role of the memos in shaping and guiding
interrogation practices becomes clear:
As we understand it, you plan to inform Zubaydah that you are going to place a
stinging insect into the box, but you will actually place a harmless insect in the
box, such as a caterpillar. If you do so, to ensure that you are outside the predicate
act requirement, you must inform him that the insects will not have a sting that
would produce death or severe pain. If, however, you were to place the insect in
the box without informing him that you are doing so, then, in order to not commit
a predicate act, you should not affirmatively leave him to believe that any insect is
present which has a sting that could produce severe pain or suffering or even
cause his death.125
This is not detached analysis, but specific advice about how to interrogate a captive.
In authorizing techniques, the memos frequently invoke their own set of covers.
Reference to the medical opinions of on site doctors and psychologists associated with
the CIA’s Office of Medical Services (OMS) are ubiquitous. This purported medical
monitoring of interrogations was an important component of deeming them legal. As
such, mirroring indictments of the “torture team” by other lawyers, Physicians for Human
Rights have accused participating medical professionals of violating basic ethical
standards by engaging in “human experimentation” that not only legitimized abuses, but
15
actively sought to improve the effectiveness of techniques.126 While OMS informed the
CIA Inspector General that its approval of techniques was exaggerated,127 the effort to
establish plausible legality was co-dependent with these highly questionable medical
assessments of the impact of interrogation practices.
To sum up so far, notwithstanding numerous references to executive prerogative
and the jurisdictional limitation of legal statues, the basic claim of the Bush
administration was that interrogation techniques did not meet the legal definition of
torture. Interestingly, however, lawyers did evince awareness that certain methods might
amount to CID. For instance, Bybee I cites a European Court of Human Rights ruling that
wall standing, hooding, subjection to noise, sleep deprivation, and deprivation of water
and food might amount to CID, but not torture.128 CID it argues, is not prohibited by the
CAT in all cases. CAT reserves legal penalty for torture alone, indicating it is a graver
offense.129 The memo goes on to assert that the history of executive and legislative
understandings and reservations regarding CAT make clear only “the most extreme acts”
constitute torture.130
As scrutiny grew and the legal and political context changed in the later years of
the Bush administration, these arguments were somewhat modified, reflecting the
resilient interpretive flexibility and adaptability of the strategy of plausible legality.
“While we have identified various disagreements with August 2002 Memorandum, we
have reviewed this Office’s prior opinions addressing issues involving treatment of
detainees and do not believe that any of their conclusions would be different under the
standards set forth in this memorandum” wrote Daniel Levin after the withdrawal of
Bybee I in 2004.131 For instance, waterboarding remained legal despite rejection of some
of the original authorization’s rationales.132 In 2005, Steven Bradbury reaffirmed this
position, also elaborating on why none of the CIA’s enhanced techniques jurisdictionally
or substantively violated the CAT’s Article 16 prohibition on CID treatment.133 Arguing
that CID for the purposes of the Act were defined relative to the Fifth, Eighth, and
Fourteenth Amendments as conduct that “shocks the conscience,” the methods in
question were deemed acceptable.
After OLC’s position that Article 16 did not apply outside US territory was
challenged by the McCain Amendment and Detainee Treatment Act (2005), which
banned CID regardless of jurisdiction and nationality, and after the Supreme Court ruled
in Hamdam v. Rumsfeld (2006) that Common Article 3 of the Geneva Conventions, and
by implication the War Crimes Act, did in fact apply to detainees who were not POWs,
the CIA requested additional assessments of its programs. Bradbury opined that the
CIA’s “conditions of confinement,” were legal under both the DTA134 and Common
Article 3 standards.135 In a highly detailed 2007 memo, he moreover reauthorized six
techniques proposed by the CIA including prolonged sleep deprivation, dietary
manipulation, the “facial hold”, the “attention grab,” the “abdominal slap,” and the
“insult slap” under DTA and Geneva standards.136 While waterboarding was dropped
from the list of interrogation techniques, the memo is ambiguous about whether it would
be prohibited under the new rules,137 suggesting that the CIA program had always
complied with the DTA provisions as a matter of policy, if not law.
Similarly, as concerns about rendition emerged, the administration adapted,
claiming the US was not guilty of violating Article 3 of the CAT concerning deportation
because they sought “assurances” from other states. As the US periodic report to the
16
UN’s Committee Against Torture stated: “The United States continues to recognize its
obligation not to “expel, return (‘refouler’) or extradite a person to another state…where
the United States believes it is “more likely than not” that they will be tortured.”138 What
constitutes the standard of probability is not clear.
The Bush administration always insisted it did not torture. Rather than openly
declare derogation from human rights law and instead of simply denying controversial
interrogation techniques were used, legal arguments were employed to rename and
reframe abuses within the bounds of existing restraints. If these observations hold true,
they point to contradictory conclusions about law’s ability to constrain states. They
suggest the structure of a legal regime, its specificity, and its jurisdictional reach matter.
Realists may be right that law will not stop states from pursuing their agendas or impose
morality on states, but it does shape how they go about doing their dirty work. Law in
this sense acts as a permissive constraint – it informs the logic of abuse, but imposes at
least some limits on the possible. Even when bent to the breaking point, it still serves as
an important boundary marker. The Bush administration cared about law because law
matters.
Legitimacy, Accountability, Immunity
Having distinguished the logic and provided examples of the strategy of plausible
legality, this final section considers whether or not it has been effective. Has plausible
legality succeeded in legitimating human rights abuses, avoiding policy maker
accountability, and immunizing criminals?
Attempts to legitimize harsh interrogation techniques, indefinite detention, and
warrantless surveillance in the eyes of the American public have had mixed results,
undoubtedly reflecting the complex political, social, and personal factors that contribute
to popular sentiment. 139 However, for the average American, considerations of
interrogation effectiveness are likely as much or more important than the nuances of
legality. As such, Dick Cheney has emphasized efficacy over law in public attempts at
self-exculpation.140 More significant to gage for our purposes is the reaction of legal and
government elites capable of influencing policy. Amongst this community, the evidence
is starker, suggesting the failure of specifically legal attempts at legitimation. For while it
may be true in some cases that “it is difficult to agree on any clear criteria or tests for
determining when a legal argument or position…is so clearly erroneous or politically
slanted as to be simply "out of the ballpark" and beyond the range of permissible goodfaith argument,”141 lawyers often do “have a keen sense of when the indeterminacy of
international law is being taken too far and when the justification given is too far-fetched
to be considered plausible.”142 “Arcane”, “bizarre”, and “fallacious”143 are some of the
adjectives used to describe the administration’s analysis from human rights quarters. For
many members of the bar, the OLC’s arguments are not only implausible; despite their
legalese, they do not even meet the standard of legal, as opposed to political reasoning.
According to the DOJ’s Office of Professional Responsibility (OPR), which was
tasked with investigating whether professional ethics were violated in the construction of
OLC decisions, the Bybee and Yoo memos contained “errors, omissions, misstatements,
and illogical conclusions…their cumulative effect compromised the thoroughness,
objectivity, and candor of the OLC’s legal advice.”144 In particular, the OPR found that
17
memos ignored and misrepresented relevant precedents, mischaracterized the law, and
omitted important information.
For some, the Bush administration’s approach provided a didactic target for the
re-legitimation of rule of law values. Yet, plausible legality has had lasting negative
ramifications around the world. Both the humanitarian and human rights legal regimes
have been eroded and undermined.145 Authoritarian countries have claimed the fight
against terrorism to justify abuses. At the diplomatic level, the US has lost moral
authority. Human rights violators have not shied from highlighting US hypocrisy.
Although President Obama may genuinely want to change course, the policies of the
previous administration may have introduced a path dependent logic that is difficult to
escape. The recent hysteria displayed by congress at the prospect of moving GTMO
prisoners to the US suggests a continued unwillingness to embrace the changes necessary
to undo previous policy. In this sense, plausible legality has succeeded in weakening
human rights protections, if not actually legitimating abuses.
Plausible legality has further effectively helped policy makers evade
accountability. The Abu Ghraib scandal exemplifies the failure of command
responsibility. The Bush administration successfully propagated its “bad apple” theory,
placing sole blame on the low level soldiers who perpetrated abuses. Despite the direct
line that ran from interrogation techniques authorized by top administration officials used
at Guantánamo to Afghanistan and Iraq,146 critics have been unable to effectively win the
migration argument. Even after the release of numerous memos, the emergence of
detailed accounts of secret programs, and the revelations of former officials, enough
confusion and ambiguity remains to obscure responsibility. When offences by poorly
trained soldiers are widely deemed illegal torture, but officially authorized waterboarding
remains a controversial form of “enhanced interrogation,” plausible legality has worked.
The obscuration of accountability has contributed to immunity. In 2005, the
Detainee Treatment Act accepted “good faith” reliance on legal advice as a legitimate
defense for human rights violations:
In any civil action or criminal prosecution against an officer, employee, member
of the Armed Forces, or other agent of the United States Government who is a
United States person, arising out of the officer, employee, member of the Armed
Forces, or other agent's engaging in specific operational practices, that involve
detention and interrogation of aliens who the President or his designees have
determined are believed to be engaged in or associated with international terrorist
activity that poses a serious, continuing threat to the United States, its interests, or
its allies, and that were officially authorized and determined to be lawful at the
time that they were conducted, it shall be a defense that such officer, employee,
member of the Armed Forces, or other agent did not know that the practices were
unlawful and a person of ordinary sense and understanding would not know the
practices were unlawful. Good faith reliance on advice of counsel should be an
important factor, among others, to consider in assessing whether a person of
ordinary sense and understanding would have known the practices to be unlawful.
In other words, the memos are a “golden shield.”
There may well be further congressional action, but it is highly unlikely that any
members of the Bush administration will be prosecuted. President Obama has voiced his
desire to move on. While Attorney General Eric Holder has appointed a special
18
prosecutor, his mandate is to investigate abuses conducted outside of legal guidelines,
rather than the origins or merits of the legal opinions themselves. In doing so, the legality
of the memos is oddly legitimated. This limited scope would be far more contentious
without the cover of plausible legality. If President Bush had declared his right to
unilaterally derogate from the CAT, if Yoo had authorized electro torture, the rack, or
ripping out fingernails, if the CIA had created their black sites or the NSA spied on
Americans without DOJ sign off, it would be much harder to pass over probing the
responsibility of high ranking officials.
This apparent reticence towards domestic prosecutions has shifted accountability
efforts out to foreign universal jurisdiction cases and down to professional ethics boards.
However, prosecution efforts in Germany failed. While Judge Balthazar Garzon of Spain,
famed for his investigation of Chilean dictator Augosto Pinochet, indicated a willingness
to proceed, the investigation was cut short due to domestic judicial politics. Meanwhile,
efforts to impeach Judge Jay Bybee and disbar John Yoo, Alberto Gonzales and other
administration lawyers are ongoing.147
Many hoped the release of the highly anticipated DOJ OPR report would contribute
to accountability, yet it has disappointed in this regard. Although it finds misconduct, it
contains no recommendations for censure or punishment. It moreover focuses on the
process of memo writing, rather than the substance of memo conclusions. Because of
this, Yoo is rightly criticized for putting “his desire to accommodate the client above his
obligation to provide thorough, objective, and candid legal advice…he therefore
committed intentional professional misconduct,”148 while Bradbury’s more thorough
reasoning process is deemed professionally appropriate, despite ultimately authorizing
the same techniques approved in the Bybee memos.149 This suggests that outlandish
attempts at legalizing abuse are likely to face more criticism than more cautiously worded
efforts, even if they provide similarly problematic advice. In both cases, the lawyers
appear to have escaped any serious negative consequences for their actions.
Conclusion
The role of legality in the conduct of the GWOT has been contradictory,
reflecting a complex interplay of ideological proclivities and political calculations. This
paper has suggested that legal considerations played a significant role in shaping human
rights abuses, a role often echoing, but in many ways distinct from the historically salient
frameworks of a state of exception and plausible denial. While there is a good deal of
overlap, a third framework of plausible legality has been proposed, which highlights the
desire of policy makers to evade restrictions on security and intelligence practices while
simultaneously seeking to maintain legitimacy, avoid responsibility, and secure immunity
for crimes. Rather than suspend the law in the name of emergency and instead of
stealthily breaking it, top administration officials set out to rename and reframe the
meaning of abuses and the nature of legal restrictions. They in many ways succeeded.
The identification of plausible legality as a distinct strategy has several
implications. For political scientists, it begs attention to how laws are followed or broken
and why some approaches become dominant in particular historical eras and social
environments. For human rights advocates, it presents another challenge. Achieving state
commitment to the rule of law is insufficient when its very meaning is contested and
19
manipulated. Infusing legal interpretation and practice with renewed normative substance
is needed to create a genuine constraint on state power in the coming years.
Notes
1
For instance, Prof. Alan Dershowitz has famously advocated “torture warrants.” See Dershowitz 2002.
See Human Rights First, Torture on TV Rising and Copied in the Field.
3
For an excellent discussion of the “ticking bomb” rationale see Luban 2005. For an examination of the
discursive features of this “torture-sustaining reality,” see Jackson 2007.
4
Mayer 2008, 58.
5
See the International Committee of the Red Cross Regional Delegation for United States and Canada,
2007.
6
Eban 2007; Committee on Armed Services, United States Senate 2008.
7
Priest 2005; Grey 2006.
8
The White House, Executive Order 13491: Ensuring Lawful Interrogations, 2009.
9
American Civil Liberties Union 2009a.
10
US Department of Justice, Office of the Inspector General 2003; Human Rights Watch 2005.
11
Center for Constitutional Rights. Factsheet: Military Commissions.
12
Associated Press 2009b.
13
The White House Office of the Press Secretary 2009; For an outline of emerging standards see
Wiegmann and Martins 2009.
14
Lichtblau 2009.
1515
Offices of the Inspectors General of the Department of Defense, Department of Justice, Central
Intelligence Agency, National Security Agency, and Office of the Director of National Intelligence, 2009.
16
Bamford 2008.
17
Electronic Frontier Foundation 2008.
18
Violations of humanitarian law, abuse of civilians, and extensive “collateral damage” have also occurred
in the Iraqi and Afghan theatres. Unfortunately, such horrors are all too common to counter-insurgency
(COIN) warfare. The historical ubiquity of human rights violations in COIN contexts suggests the problem
goes far beyond the GWOT and requires independent analysis.
19
The politics of emergency exception is an important component of normative and policy debate between
scholars for and against various temporary derogations from the normal rule of law. While adjudicating this
debate is beyond the scope of this paper, these works help elucidate the philosophy and jurisprudence
underlying various policy options. See Ackerman 2006; Dyzenhaus 2006; Gross and Ní Aoláin 2006;
Heymann 2003; and Ignatieff 2004.
20
Locke, 1965, 425.
21
Locke 1965, 425-426.
22
Schmitt 2005, 5.
23
Schmitt 2005, 6.
24
Schmitt 2005, 36.
25
Fatovik 2008, 489.
26
Schmitt 2005, 13.
27
Strong 2005, xxi.
28
Agamben 2005, 2.
29
Agamben 2005, 6-7.
30
Agamben 1998, 170.
31
Agamben 2005, 4.
32
Scheuerman 2006, 118.
33
Steyn 2004.
34
Horton 2007.
35
Wolf 2007, 6.
36
Wolf 2007, 10.
37
Wolf 2007, 10.
38
Scheppele 2004, 16-19.
39
Crenson and Ginsberg 2007, 277.
2
20
40
House Committee on the Judiciary Majority Staff 2009, 9.
Yoo 2006, 119-20.
42
Lazarus 2006.
43
United States Department of Justice 2006.
44
These legal arguments were contentious even within the Bush administration. Insider critic and former
head of the OLC Jack Goldsmith sums up his view: “After 9/11 they and other top officials in the
administration dealt with FISA the way they dealt with other laws they didn’t like: they blew through them
in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis
of their operations.” See Goldsmith 2007, 181. The internal conflict exploded in 2004. Acting Attorney
General James Comey declined to overrule then incapacitated Attorney General John Ashcroft’s reluctance
to renew the TSP, prompting a now infamous hospital showdown between Comey, Goldsmith, Associate
Deputy Attorney General Patrick Philbin, and FBI Director Robert Mueller on one side and senior White
House officials Andrew Card and Alberto Gonzales on the other. Determined to have the program
reauthorized, the latter rushed to the seriously ill Ashcroft’s bedside in a last ditch attempt to secure his sign
off. They failed. The program was renewed anyways without the standard practice of DOJ authorization,
but was eventually moderately modified after multiple threats of resignation. The activities covered by the
TSP were brought under the FISC process by 2007, at which time the program ended. See Offices of the
Inspectors General 2009, 30.
45
Goldsmith 2007, 208.
46
Crenson and Ginsberg 2007, 338.
47
Despite firing several US Attorneys for political reasons, there is an obvious difference between
American judicial independence under the Bush administration and fascist legality. For a chilling
description of the latter “Führer Principle” in law see the United States of America v. Alstötter et al. 1948.
48
House Committee on the Judiciary Majority Staff 2009, 18.
49
It can be difficult to untangle the theoretical beliefs of certain key individuals and the actual claims of the
administration. For instance John Yoo provocatively responded to a question as to whether any law
prevented “crushing the testicles of the person’s child” with “No treaty” and “I think it depends on why the
president thinks he needs to do that.” See Mayer 2008, 153. While OLC memos have claimed Article II
powers do permit the president to do whatever he wants in wartime, including resort to any interrogation
methods deemed fit, the same memos assert that CIA techniques do not amount to torture, leaving such
prerogative arguments at the purely hypothetical level. The “First Bybee Memo” written by John Yoo is a
particularly notorious example of this extreme logic. See Bybee 2002a.
50
Treverton 2009, 210.
51
Scott 2004, 324.
52
Powers 2004, 370.
53
Doolittle 1954, 2-3.
54
Kissinger-Rogers Telecon. Italics added.
55
Ganser 2006.
56
For example, see Kinzer 2003; Cullather 1999; Kornbluh 1998; Prados 2006; and Weiner 2007.
57
Central Intelligence Agency 1973; Devlin 2007.
58
Marks 1991; McCoy 2006.
59
Blakely 2006.
60
United States Senate 1975-1976; Schwarz Jr. 2007.
61
United States Senate 1975-1976, Book IV 93.
62
Treverton 2009, 209.
63
Mayer 2008, 144.
64
Priest 2005; Grey 2006.
65
See Maher Arar’s website: http://www.maherarar.ca.
66
Rejali 2007, 8-9.
67
Mayer 2008, 174-5.
68
Mayer 2008, 250.
69
Lichtblau 2009, 133.
70
Lichtblau 2009, 138.
71
Associated Press 2009a.
72
Kravets 2009.
41
21
73
Olson 2008, 40.
Cheney 2009.
75
Mayer 2008, 43.
76
Foot 2006, 137-8.
77
Cohen 1996, 529-543.
78
Cohen 1996, 524.
79
Cohen 1996, 524-529.
80
Cohen 1996, 526-528.
81
Lichtblau 2009, 7.
82
Scott 2007.
83
Chayes 1974; Shalom 1978.
84
O'Connell 2000; Koskenniemi 2002.
85
Mayer 2008, 267.
86
Bybee 2002a, 1.
87
Yoo and Delahunty 2007, 34-35.
88
Yoo 2006, 174.
89
Yoo 2006, 198.
90
Yoo 2006, 45.
91
Mégret 2005, 27.
92
Johns 2005, 614.
93
Goldsmith 2007, 130.
94
Goldsmith 2007, 163-4.
95
Ratner 2008,189.
96
Mayer 2008, 268.
97
Central Intelligence Agency Inspector General 2004, 31-1.
98
Central Intelligence Agency Inspector General 2004, 41.
99
Mayer 2008, 244.
100
Mayer 2008, 263; Committee on Armed Services, United States Senate, 2008.
101
Central Intelligence Agency Inspector General 2004, 69.
102
Ratner 2008, 191.
103
Ratner 2008, 195-6.
104
Sands 2008, 275. Both Ratner and Sands build convincing detailed cases against several high-ranking
individuals to establish this point.
105
Offices of the Inspectors General 2009.
106
Mayer 2008, 82.
107
Committee on Armed Services, United States Senate, 2008.
108
Kohn 2007.
109
Cole 2008, xvi.
110
United States Department of State 2005, Annex 2.
111
Gonzales 2002.
112
United Nations 1984.
113
Congress insisted on several reservations before ratifying the Convention Against Torture, which helped
lay the basis for OLC arguments. See United States Congress, 1990:
I. The Senate's advice and consent on the CAT is subject to the following reservations:
That the United States considers itself bound by the obligation under Article 16 to
prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term
"cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and
inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth
Amendments to the Constitution of the United States.
II. The Senate's advice and consent is subject to the following understandings, which shall apply to
the obligations of the United States under this Convention:
(1)(a) That with reference to Article 1, the United States understands that, in order to
constitute torture, an act must be specifically intended to inflict severe physical or mental
pain or suffering and that mental pain or suffering refers to prolonged mental harm
caused by or resulting from: (1) the intentional infliction or threatened infliction of severe
74
22
physical pain or suffering; (2) the administration or application, or threatened
administration or application, of mind altering substances or other procedures calculated
to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or
(4) the threat that another person will imminently be subjected to death, severe physical
pain or suffering, or the administration or application of mind altering substances or other
procedures calculated to disrupt profoundly the senses or personality.
III. The Senate's advice and consent is subject to the following declarations:
(1) That the United States declares that the provisions of Articles 1 through 16 of the Convention
are not self-executing.
114
Bybee. 2002b,10.
115
Bybee 2002b, 10.
116
Bybee 2002b, 10-11.
117
Bybee 2002b, 11.
118
Bybee 2002b, 11.
119
Bybee 2002b, 11.
120
Bybee 2002b, 12.
121
Bybee 2002b, 12.
122
Bybee 2002b, 13.
123
Bybee 2002b, 15.
124
Bybee 2002b, 16.
125
Bybee 2002b, 14.
126
Physicians for Human Rights 2009.
127
Central Intelligence Agency Inspector General 2004, 14.
128
Bybee 2002a, 28-29.
129
Bybee 2002a, 5.
130
Bybee 2002a, 19.
131
Levin 2004b, 2.
132
Levin 2004a; Bradbury 2005a.
133
Bradbury 2005b.
134
Bradbury 2006a.
135
Bradbury 2006b.
136
Bradbury 2007.
137
Bradbury 2007, 13.
138
United States Department of State 2005, Article III: Non-Refoulment.
139
For instance, according to World Public Opinion.org, in 2009 59% of Americans favored banning
physical torture, down from 66% in 2004, while those who thought this too restrictive rose to 39% from
30%.
140
Cheney 2009.
141
Bilder and Vagts 2004, 693-4.
142
Scott 2007, 420.
143
Ratner 2008, 185.
144
United States Department of Justice, Office of Professional Responsibility 2009, 159-160.
145
International Commission of Jurists 2009.
146
Committee on Armed Services, United States Senate 2008.
147
See the Velvet Revolution.
148
United States Department of Justice, Office of Professional Responsibility 2009, 254.
149
United States Department of Justice, Office of Professional Responsibility 2009, 259.
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