The Politics of Plausible Legality

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
National Security ◽  
International Law ◽  
State Violence ◽  
Global War On Terror ◽  
Human Rights Abuses ◽  
Political Actors ◽  
Legal Norms ◽  
Legal Rules ◽  
Global War

After 9/11, the Bush administration and, to a lesser degree, the Obama administration authorized controversial interrogation, detention, trial, lethal targeting, and surveillance practices. At the same time, American officials frequently invoked legal norms to justify these policies. This chapter introduces the book’s central questions: how can we make sense of these attempts to legalize human rights abuses and how does law influence state violence? As initially outlined in this chapter, the book argues that national security legal cultures shape how political actors interpret, enact, and evade legal rules. In the global war on terror, a culture of legal rationalization pushed American authorities to construct plausible legality, or legal cover for contentious counterterrorism policies. This culture contrasts with cultures of exception and cultures of secrecy, which have shaped American national security practice in the past, as well as a culture of human rights favored by many international law and human rights advocates.

Plausible Legality

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
State Violence ◽  
Habeas Corpus ◽  
Global War On Terror ◽  
Political Actors ◽  
Legal Norms ◽  
Drone Strikes ◽  
Indefinite Detention ◽  
Global War ◽  
Enhanced Interrogation

After 9/11, American officials authorized numerous contentious counterterrorism practices including torture, extraordinary rendition, indefinite detention, trial by military commission, targeted killing, and mass surveillance. While these policies sparked global outrage, the Bush administration defended them as legally legitimate. Government lawyers produced memoranda deeming enhanced interrogation techniques, denial of habeas corpus, drone strikes, and warrantless wiretapping lawful. Although it rejected torture, the Obama administration made similar claims and declined to prosecute abuses. This book seeks to understand how and why Americans repeatedly legally justified seemingly illegal security policies and what this tells us about the capacity of law to constrain state violence. It argues that legal cultures shape how political actors interpret, enact, and evade legal norms. In the global war on terror, a culture of legal rationalization encouraged authorities to seek legal cover—to construct the plausible legality of human rights violations—in order to ensure impunity for wrongdoing. In this context, law served as a permissive constraint, enabling abuses while imposing some limits on what could be plausibly legalized. Cultures of legal rationalization stand in contrast with other cultures prevalent in American history, including cultures of exception, which rely on logics of necessity and racial exclusion, and cultures of secrecy, which employ plausible deniability. Looking forward, legal norms remain vulnerable to manipulation and evasion. Despite the efforts of human rights advocates to encourage deeper compliance, the normalization of post-9/11 policy has created space for the Trump administration to promote a renewed culture of exception and launch bolder attacks on the rule of law.

Permissive Constraint

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
International Law ◽  
Limit State ◽  
The United States ◽  
State Violence ◽  
Contemporary Culture ◽  
Human Rights Abuses ◽  
Legal Norms ◽  
Legal Rules ◽  
Legal Justification

Can legal norms limit state violence? International relations and international law scholarship provide a variety of answers to this problem. Realist, decisionist, and critical theorists conceptualize law as permit, as a weak constraint on and tool of powerful states. In contrast, liberals and constructivists emphasize law’s capacity to constrain states for rationalist and normative reasons. This chapter examines whether these contending perspectives adequately account for how authorities navigate legal rules across legal cultures. It argues that legal cultures of exception and secrecy tend to operate in accordance with the assumptions of law as permit, while largely aspirational cultures of human rights fulfill a vision of law as constraint. In the United States’ contemporary culture of legal rationalization, law serves as a permissive constraint. Permissive legal interpretation has enabled American officials to establish legal cover for human rights abuses, while legal norms simultaneously delimit the plausibility of legal justification.

Human rights abuses at the limits of the law: Legal instabilities and vulnerabilities in the ‘Global War on Terror’

2017 ◽  
Vol 44 (1) ◽  
pp. 2-23 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
War On Terror ◽  
State Violence ◽  
Legal Compliance ◽  
Liberal Democracies ◽  
Global War On Terror ◽  
Human Rights Abuses ◽  
Indefinite Detention ◽  
Protection Of Human Rights ◽  
Global War

AbstractLaw following and law breaking are often conceptualised as polar opposites. However, authorities in liberal democracies increasingly deploy a strategy of what I callplausible legalityin order to secure immunity and legitimacy for proscribed practices. Rather than ignore or suspend law, they construct legal justifications for human rights abuses and other dubious policies, obscuring the distinction between legal compliance and non-compliance. I argue this is possible because instabilities in legal rules make them vulnerable to manipulation and exploitation. By tracing American rationales for contentious ‘enhanced interrogation techniques’, indefinite detention, and ‘targeted killing’ practices in the ‘Global War on Terror’, I show that law need not always be abandoned or radically reconstituted to achieve troubling ends and that rule structures enable certain patterns of violation while limiting others. The international prohibition on torture is robust and universal, but provides vague definitions open to interpretation. Detention and lethal targeting regulations are jurisdictionally layered and contextually complex, creating loopholes and gaps. The article concludes by reflecting on implications for the protection of human rights. While law is not wholly indeterminate, human rights advocates must constantly advocate shared legal understandings that constrain state violence.

The Fate of Human Rights in the Global War on Terror

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
War On Terror ◽  
The United States ◽  
State Violence ◽  
Humanitarian Law ◽  
Global War On Terror ◽  
Legal Norms ◽  
Indefinite Detention ◽  
Global War ◽  
Trump Administration

American officials attempted to construct the plausible legality of torture, indefinite detention, targeted killing, and mass surveillance in the global war on terror. These efforts were largely successful, foreclosing prosecution and ensuring impunity for human rights violations. Moreover, with the exception of torture, many of these counterterrorism practices persist and enjoy widespread acceptance. Around the world, international human rights and humanitarian law have been weakened by American efforts to erode and reinterpret constraints on state violence. This has created space for more overt attacks on legal norms by the Trump administration, which has signaled its intent to shift American national security legal culture toward the politics of exception. At the same time, international law advocates are pushing back. The chapter concludes by reflecting on possible pathways for promoting a culture of human rights in the United States.

The year in review

2002 ◽  
Vol 5 ◽  
pp. 255-312 ◽  
Author(s):  
Avril McDonald
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Court ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Transnational Terrorism ◽  
Global War On Terror ◽  
Guantanamo Bay ◽  
Full Speed ◽  
Global War

With the attacks of 11 September 2001 very much casting their shadow, 2002 was a year in which issues concerning both thejus in belloand thejus ad bellumoccupied centre stage in international law and relations and dominated the news agenda, but often in a way that promoted confusion and misinformation rather than greater understanding of the law, and, as the year progressed, frustration and despair rather than optimism.Transnational terrorism was cemented as the declared pre-eminent security concern of many states, and, as a consequence, full speed into the ‘global war on terror’ (hereinafter GWOT), the integrity of international humanitarian law, human rights law and international law in general, including the role of international organisations such as the United Nations, came under increasing challenge. Focal points of rancorous, polarised debate were the fact and the conditions of detention of persons, including minors, at Guantánamo Bay, Cuba; the applicability and relevance of international humanitarian law in the context of the terrorist threat and the counter-terrorist response; the perceived conflict between human rights and national security; the coming into being of the International Criminal Court (ICC) and the US's almost obsessive opposition to it; and, as the year drew to a close, the spectre of the use of force against Iraq without Security Council authorisation by an increasingly belligerent United States and a handful of its allies.

Cyber Rebellion: Bradley Manning, WikiLeaks, and the Struggle to Break the Power of Secrecy in the Global War on Terror

2013 ◽  
Vol 12 (1-2) ◽  
pp. 69-79 ◽  
Author(s):  
Yamuna Sangarasivam
Keyword(s):  
Human Rights ◽  
War On Terror ◽  
Justice Department ◽  
Global War On Terror ◽  
Human Rights Abuses ◽  
The Us ◽  
Espionage Act ◽  
The Face ◽  
Spatio Temporal ◽  
Global War

AbstractFollowing the release of thousands of diplomatic cables which revealed the human rights abuses and networks of corruption that sustain the US-sponsored global war on terror, the US Justice Department has invoked the 1917 Espionage Act to indict both Bradley Manning, the US soldier who released the classified documents to WikiLeaks, and Julian Assange, the editor and publisher of WikiLeaks. While censorship serves as an economic signal, as Assange asserts, how does the torture and prosecution of Pvt. Bradley Manning serve as a cultural signal which reveals the ­lessons of a patriotism that promotes a dystopic democracy? This article examines the spatio-temporal predicament of secrecy, surveillance, and censorship in the face of cyber rebellion.

scholarly journals The Long View on Kiobel: A muted Victory for International Legal norms in the United States?

AJIL Unbound ◽  
2013 ◽  
Vol 107 ◽  
pp. 13-19
Author(s):  
Marco Basile
Keyword(s):  
United States ◽  
Human Rights ◽  
International Law ◽  
The United States ◽  
Historical Record ◽  
Sovereign State ◽  
Human Rights Abuses ◽  
Majority Opinion ◽  
Legal Norms ◽  
Federal Jurisdiction

Kiobel v. Royal Dutch Petroleum Co. may be a Trojan horse. Observers who are sympathetic to the adjudication in U.S. courts of international legal norms—such as those against torture— have criticized the decision for limiting federal jurisdiction over human rights abuses abroad. Yet, despite this price, Kiobel might ultimately strengthen the foundation of international legal norms in U.S. courts. Chief Justice John Roberts's majority opinion, limiting the Alien Tort Statute (ATS) from reaching overseas, rested on the principle that one sovereign state should not usually apply its laws within the borders of another sovereign state, and that idea is a bedrock principle of international law. The majority avoided the connection to international law by dressing up the presumption against extraterritoriality in a foreign-policy rationale, but its argument does not square with the historical record, especially when it comes to piracy.

Terrorism, Human Rights Dilemma And Its Effects On Women In Swat, Pakistan

2018 ◽  
Vol 17 (1) ◽  
pp. 39-54
Author(s):  
Akhtar Baloch ◽  
Iram Tahir
Keyword(s):  
Human Rights ◽  
Feminist Theory ◽  
Cultural Context ◽  
War On Terror ◽  
Secondary Data ◽  
Global War On Terror ◽  
Human Rights Abuses ◽  
After Effects ◽  
Global War ◽  
Rights Issues

The global war on terror has created a human rights dilemma for the mostmarginalised groups in societies. In a highly patriarchal society like Pakistan, this dilemma is further magnified due to the lack of focus on human rights problems it creates for subsections of society that do not have equal access to mainstream resources, such as women. This paper seeks to identify the human rights issues created due to terrorism and counter-terrorism from a gendered perspective in the context of women in Swat, Pakistan. Secondary data analysis has been used as a research methodology, and the Feminist Theory has been applied as the theoretical framework. Findings reveal that women in Swat have suffered human rights abuses in the economic, social and cultural context far more than men, and continue to suffer from psychological problems. The militant activity in Swat altered the mindset of women towards terrorism, creating women militants. The paper concludes that women in Swat suffered severe human rights abuses to their economic, social and cultural freedoms, and were not beneficiary to adequate rehabilitation initiatives, leaving emotional and mental after-effects on these women.

Germany's Involvement in Extraordinary Renditions and Its Responsibility under International Law

2007 ◽  
Vol 25 (4) ◽  
pp. 1-30
Author(s):  
Laura Tate Kagel
Keyword(s):  
Human Rights ◽  
International Law ◽  
Middle Eastern ◽  
Public Attention ◽  
Human Rights Abuses ◽  
Legal Rules ◽  
The Government

This article investigates Germany's role in CIA "extraordinary renditions" of terrorist suspects, focusing on two cases involving German citizens of Middle Eastern descent (Khaled el-Masri and Mohammed Zammar), and one case of an Egyptian cleric who had resided in Italy and was likely transferred to Egypt via a U.S. military airport in Germany (Abu Omar). Amid recent revelations about the extent of the CIA program for transferring and interrogating terrorism suspects, the question of Germany's potential responsibility under international law has gained public attention. Against the background of international legal rules governing responsibility of assisting states, this article examines what was known in Germany about human rights abuses in the above cases and evaluates official steps taken by the government to prevent or uncover violations. In the conclusion, the article addresses the need for increased institutional safeguards to hinder German involvement in questionable U.S. counterterrorism practices.

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