Skip to main content
SpringerLink
Log in

The Rule of Law Under Siege, but Which Rule of Law?

  • Essay
  • Published:
Hague Journal on the Rule of Law Aims and scope Submit manuscript

A Review of Law’s Trials: The Performance of U.S. Legal Institutions in the U.S. “War on Terror,” by Richard Abel.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Notes

  1. For a thoughtful account of the impact of Abel’s book, see Robert W. Gordon, Lawfare in the War on Terror, Jotwell, Nov. 12, 2019, at https://legalpro.jotwell.com/lawfare-in-the-war-on-terror/.

  2. Abel provides a concise and elegant summation of these problems in his conclusory chapter to the volume. Richard l. Abel, Law’s Trials, The Performance of Legal Institutions in the U.S. “War on Terror” 594–612 (2018).

  3. See, e.g., Law’s Trials at 310.

  4. See, e.g., id. at 194, 313.

  5. See, e.g., id. at 310, 609–611; see also Law’s Wars, The Fate of the Rule of Law in the U.S. “War on Terror,” 106–207 (2018).

  6. See, e.g., Law’s Trials at 352–365.

  7. Id. at 611.

  8. For an overview of the conflicting approaches among states to the legal paradigms that apply to extraterritorial counterterrorism, see generally Kenneth Watkin, Fighting at the Legal Boundaries, Controlling the Use of Force in Contemporary Armed Conflict (2016). See also Laura A. Dickinson, National Security Policy-making in the Penumbra of International Law (forthcoming 2020).

  9. The United States articulated this view in its response to a request for precautionary measures from the Inter-American Commission for Human Rights. Specifically, the United States argued that the law of armed conflict was the lex specialis, which therefore displaced international human rights law and governed the detention of persons held at Guantanamo Bay. Response of the United States to Request for Precautionary Measures, Detainees at Guantanamo Bay, Cuba, April 15, 2002. Furthermore, the United States argued that these detainees were not protected under the law of armed conflict because they were “enemy combatants” not covered by this body of law. Id.

  10. For example, when Bush administration officials defended U.S. implementation of the International Covenant on Civil and Political Rights at the Human Rights Committee, they argued that the treaty does not apply extraterritorially. U.S. Dep’t of State, Second and Third Periodic Report of the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights, Annex I, Oct. 21, 2005.

  11. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), Aug. 12, 1949, 75 UNTS 8; Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Aug. 12, 1949, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3 [hereafter AP I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 UNTS 609.

  12. See, e.g., International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 [hereafter ICCPR].

  13. For a more detailed elaboration of how these two legal paradigms differ in governing extraterritorial counterterrorism operations, see Dickinson supra.

  14. AP I, art. 51.2.

  15. AP I, art. 52.1.

  16. AP I, arts 51.5(b), 57.2(a)(iii).

  17. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

  18. For an overview of these reforms, see Office of the White House, Report on Legal and Policy Frameworks Guiding the United States Use of Military Force and Related National Security Operations (2016) [hereafter “2016 Frameworks Report”].

  19. The Obama Administration articulates these views quite clearly in the 2016 Frameworks Report. Id.; see also Dickinson, supra.

  20. Office of the White House, Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (2018).

  21. See, e.g., Watkin, supra; see also Rosa Brooks, How Everything Became War and the Military Became Everything (2016).

  22. Human Rights First, Guantanamo by the Numbers, Oct. 10, 2018, at https://www.humanrightsfirst.org/resource/guantanamo-numbers.

  23. See ICCPR, art. 9.

  24. See Dickinson, supra.

  25. See Boumediene v. Bush, 553 U.S. 723 (2008).

  26. 542 U.S. 507 (2004).

  27. For a more detailed reading of Hamdi along these lines, see Laura Dickinson, Administrative Law Values and National Security Functions, Military Detention in the United States and the United Kingdom, in Oxford Handbook of Comparative Administrative Law (forthcoming 2020).

  28. See Dickinson, National Security Policy-Making, supra.

  29. See, e.g., Laura A. Dickinson and James E. Baker, The U.S. Military Commissions: Looking Forward, Report of the American Bar Association Standing Committee on Law and National Security, May 25, 2018.

  30. See Charlie Savage, Guantanamo Lawyers Challenge Government’s Explanation for Hidden Microphones, N.Y. Times, March 12, 2018, https://www.nytimes.com/2018/03/12/us/politics/guantanamo-hidden-microphone.html.

  31. See Charlie Savage, Fired Pentagon Official Was Exploring Plea Deals for 9/11 Suspects at Guantanamo, N.Y. Times, Feb. 10, 2018, at https://www.nytimes.com/2018/02/10/us/politics/guantanamo-sept-11-rishikof.html.

  32. Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014), superseded on other grounds by Al Bahlul v. United States, 840 F.3d 757 (2016) (en banc).

  33. Title XVIII, National Defense Authorization Act for Fiscal Year 2010, Pub. L. 111–184.

  34. Al Bahlul, supra, at 27–31.

  35. See 2016 Frameworks Report, supra.

  36. See 2018 Frameworks Report, supra.

Author information

Authors and Affiliations

  1. Oswald Symister Colclough Research Professor and Professor of Law, George Washington University School of Law, Washington, DC, USA

    Laura A. Dickinson

Authors
  1. Laura A. Dickinson
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Laura A. Dickinson.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Dickinson, L.A. The Rule of Law Under Siege, but Which Rule of Law?. Hague J Rule Law 12, 195–204 (2020). https://doi.org/10.1007/s40803-020-00135-1

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s40803-020-00135-1

Search

Navigation