In the US, the tendency to expand law enforcement powers in the name of combating terrorism and protecting national security has increased, justifying many violations in the process.
After 9/11, the US government initiated several trials against suspected terrorists and other individuals as part of the "war on terror". That period witnessed the most damage to the rule of law in the US in recent decades, and violations have increased.
If anyone can explain the impact of these violations on the rule of American law and the extent of the impact of politics on the law, it would be the renowned legal sociologist, professor Richard L. Abel.
Abel is a distinguished professor of law and research at the University of California. He has taught at the universities of Yale, New York, Fordham, and Southern California, and has worked as a human rights and social activist in the American civil rights struggles since the 1960s.
Abel's research and books focus on civil rights and the relationship between the rule of law and political power. He culminated his 20 books with two important volumes on legal abuses in the war on terror and the impact of power on the rule of law.
The first volume, Law's Wars: The Fate of the Rule of Law in the US War on Terror, reveals how the US war on terror has repeatedly violated rule of law values, and efforts to resist these abuses, focusing on five issues: Abu Ghraib prison abuses, Guantanamo Bay, interrogations, and surveillance, electronic warfare, international humanitarian law, and civilian battlefield casualties, including torture and targeted killings.
The second volume, a sequel, Law's Trials: The Performance of Legal Institutions in the US War on Terror is a 1,800-page comprehensive account of the 16 years of the Bush and Obama administrations, effective interventions to defend the rule of law by NGOs, journalists, the legislature, and the executive.
In his interview with Ahram Online, Abel reveals how the US litigation strategy has made convictions inevitable, and how the US government has relied on national security to justify its abuses to the rule of law and the impact of the overlap between politics and law.
Ahram Online: The post-9/11 wars have influenced US legal and political institutions, values of regularity and fairness, and the ability of legal structures to constrain government power or hold it to account. What were the most dangerous damages that were wrought in the name of national security?
RA: In terms of the damage to individuals, torture, secret prisons, indefinite detention without trial, and extraordinary rendition were the worst. In terms of damage to the rule of law, the abdication of federal judges of their responsibility to hear habeas corpus petitions from Guantanamo detainees, the abject failure of courts-martial to convict and punish military personnel guilty of war of law crimes, and the travesty of the military commissions, which 20 years after 9/11 have yet to complete a single trial.
AO: The intertwining between politics and the rule of law were raised intensively during the war on terror. How far have the legal structures built for constraining power succeeded or failed in pushing back against the violations of legal rules after 9/11 and constrain presidential maximalism in the war on terror in the Bush and Obama administrations?
RA: I mentioned some of the greatest failures above. I would contrast them with criminal prosecutions of those accused of terrorism offences. The material support statute (enacted before 9 /11, primarily a statute aimed at reaching those persons who provide material support to terrorists knowing that such support will be used to commit one of the offences specified in the statute) made it easier to convict, and the FBI used informants in uncontrolled and flawed ways that bordered on entrapment. But the trials themselves were fair. I would also contrast the treatment of civil liberties: rights of free speech and assembly were protected, and efforts to block the construction of mosques failed.
AO: How did the US betray the rule of law by making the legal authority on which it relied in its counter-terrorism operations a secret by blocking legal advice from been exposed to the public through the phenomenon known as “secret law”? How can a law be a secret, is this something legally acceptable? And how did the secrecy surrounding government action compromise the ability to hold public officials to account?
RA: It is important to distinguish between what is confidential and what is not. First, all laws and judicial decisions are published, and all trials are public. It is true that sessions of military commissions are often closed; that is just one of their many failings,but all laws and judicial opinions are public documents, and all civil trials are open to the public.
Of course, many of the activities of the national security services are classified, and they should be. The executive branch sometimes invokes that executive privilege to maintain confidential discussions among members of the executive. This applies outside the field of national security. The Office of the Legal Counsel at the Ministry of Justice also issues binding opinions to the executive branch; some are secret.
It is also true that the government often withholds information, invoking “state secrets.” That “privilege” has been badly abused. The privilege of secrecy was invoked during that war and that was one of the failures. This made it easier for the US government to withhold information, invoking “secrets" and state secrets.” This “privilege” has been severely abused, and this, of course, is linked to the failure of military courts to convict and punish US military personnel guilty of war crimes.
AO: How did the Congress and the courts fail to uphold the rule of law? And how did this strick the values of liberal democracy and the rule of law?
RA: I talked about courts above. Congress passed the Authorisation for the Use of Military Force almost unanimously, and both Bush and Obama used it to justify their actions (Bush, notably, in the disastrous and misguided declaration of war on Iraq). Congress also repeatedly re-enacted authority to conduct electronic surveillance, even after the exposure of its abuses.
AO: The US doctrine has always been meant to shield Americans from prosecutions, foreign and domestic, related to their engagement with questionable wartime practices. There were documents about detainee deaths in US custody since 9/11, including those who were tortured to death. You cited the Obama Justice Department’s decision not to move forward with prosecuting federal agents implicated in the torture-related deaths of two detainees in US custody. No court had been able to declare such conduct criminally unlawful or formally punish the perpetrators. This seems to be a failure of justice. How did the law allow this and make it easy for violators to keep claiming their actions were legal?
RA: The failure of the US to prosecute those who engaged in torture or were involved in secret prisons or extraordinary rendition is totally reprehensible. I do not expect that to be corrected in the foreseeable future, and in the meantime the statute of limitations will run. As I say at the end of Law’s Trials, it generally takes at least a generation to redress major social wrongs; I fear the same will be true of the crimes of the US war on terror.
AO: The entitlement of US citizens to fair notice is based on the terms of the social contract between the government and its citizens. What about foreigners who face the risk of being targeted by the US?
RA: Within the US, foreigners are treated equally with citizens in court. By contrast, they have almost no rights under immigration law. Abroad, I assume you are referring to “targeted killing,” mostly by drone strikes. The “protections” are those embodied in the law of war; the US pays lip service to that but often violates it.
AO: Guantanamo certainly remains a blatant symbol of American excesses and a disgrace to its government. Among the first orders issued by Obama in 2009 was to close the prison within a year, but this did not happen. Now, 12 years later, Biden -- Obama's former vice president and current president -- faces the same challenge. In addition to the opposition to closing it, military trials of the defendants in the September 11 attacks have not been held two decades later, and there are legal obstacles that prevent the transfer of prisoners to the US. How can these crises end legally and politically?
RA: Obama promised to close Guantanamo but, as you note, never did so. Part of the blame lies with Congress, which prohibited him from transferring detainees to the US. Biden has vowed to close Guantanamo, but he also is limited by that statute, and Republicans are likely to block its repeal. He has started transferring some detainees outside the US. I believe the military commissions should be abolished and those charged transferred to the US and tried in civilian courts, where I believe they can receive a fair trial.
AO: In your work, you analysed judges' perceived political orientations and their corresponding rulings, and even examined the political ideology of the president who appointed the judge to the federal bench to assess a judge's political orientation. How far does politics influence law and its executive action?
RA: I found statistically significant correlations between the political party of the appointing president and the actions of judges in many “war on terror” cases. I am now doing a similar analysis of judges during the Trump administration and finding even stronger correlations. Republicans have for decades politicised the judiciary, appointing only those with strong conservative credentials. Biden is committed to appointing judges, but Republicans have the power to block any appointment to the Supreme Court.
AO: Concerning those correlations, you've mentioned the politicisation of Republicans to eliminate them for decades. How has this affected the rule of law?
RA: Social scientists distinguish between correlation and cause. I am offering evidence of correlation and conventional statistical significance tests. I found a statistically significant correlation between the party of the appointing president and whether judges granted habeas corpus petitions, protected civil liberties, and claims by victims of the “war on terror.” Republican administrations as far back as Reagan have created a pipeline for conservative lawyers who join the Federalist Society and then become judges. As a result, Republican judges favour Republican administrations. This, of course, affected the politicisation of the law and court procedures, especially during the “war on terror.”
AO: This leads us to question how US institutions responded to assess the capacity of the legal system to resist political pressure in moments of crisis such as the war on terror?
RA: I think the basic failing in the “war on terror” was that of people, not laws or even institutions. Bad lawyers created legal “justifications” for torture, indefinite detention in Guantanamo, wiretapping, and extraordinary rendition. Bad judges undermined Supreme Court decisions recognising Guantanamo detainees had a right to habeas corpus petitions. The only way to get better people in government is through elections. As I said at the end of my books: the basic contradiction of the rule of law — in which I strongly believe — is that a principle whose virtue is to insulate the law from political contamination can only be protected through the political process itself, ie elections.