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

Articles

During the 2016 US presidential campaign, Donald J. Trump declared he would order waterboarding 'in a heartbeat' and 'a hell of a lot worse than waterboarding' because 'only a stupid person would say it doesn't work'.¹He moreover pledged to kill the families of terrorists,²prosecute American citizens at Guantánamo Bay,³and ban Muslims from entering the United States.⁴'The problem is we have the Geneva Conventions, all sorts of rules and regulations, so the soldiers are afraid to fight', he said, promising to 'make some changes'.⁵He continued to offer similar statements after his inauguration, reiterating that 'torture works' and that the United States should 'fight fire with fire'.

President Trump's pronouncements are striking, not simply because they endorse human rights abuses in the name of counterterrorism, but because they so flagrantly embrace violations of American and international law. This rhetoric stands in contrast with the euphemistic discourse commonly employed by politicians. It's not that torture or extrajudicial killing are unprecedented, but that public authorities in liberal democracies rarely advocate overt rule breaking. Instead, they attempt to establish what I call the plausible legality of controversial policies. Using evasive language, they manoeuvre through and around legal rules in order to justify human rights abuses, claiming that law means what they want it to mean.

In order to assert the legality of what are normally considered illegal practices, policymakers and their lawyers seek out and exploit instabilities in legal rules. As a result, their legal arguments reflect back a deformed, refracted mirror image of existing legal order. Contemporary American security policy constitutes a clear example of this perverse legality, providing an opportunity to explore how legal regimes are structured and where they are vulnerable to exploitation. What characteristics of legal norms make them unstable? How do actors navigate these instabilities? Can legal rules be defended against manipulation?

Both the Bush and Obama administrations were keen to evade, stretch, and reinterpret law to justify interrogation, detention, and 'targeted killing' policies in the 'Global War on Terror'. By backwards tracing their justifications, I identify how states leverage ambiguities and loopholes in the law to minimise substantive constraints on their conduct. For instance, the prohibition on torture is a universal peremptory norm.