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Richard Abel is the most prolific, as well as the most eminent, scholar of legal professions. Among many other books, he has written a detailed and moving study of the handful of courageous South African lawyers who challenged the apartheid regime. He has unearthed documents from lawyer disciplinary proceedings to uncover new lessons about lawyer deviance. And he has now completed two massive volumes on the Bush and Obama Administration’s anti-terrorism policies in the wake of the 9/11 attacks, the legal means employed to carry them out, and the legal responses to them. Law’s Wars deals with detention of suspected terrorists at the Iraqi prison of Abu Ghraib and at Guantanamo Bay, interrogation, electronic surveillance, and law of war on the battlefields of Iraq and Afghanistan. Law’s Trials covers many of the legal proceedings resulting from counter-terrorist measures: criminal prosecutions in ordinary courts, military commissions, and courts-martial (of U.S. personnel), and the various legal challenges to all of the above, such as habeas corpus petitions, civil damages actions, and civil liberties complaints.

The books are intended to be comprehensive, and they are. The genre that they most resemble is that of reports of Truth Commissions established after mass atrocities to give a meticulous account of events, perpetrators, and victims, to ensure that a record is made and that collective memory of events is preserved as an instruction and warning to later generations. See, e.g., Report of the Chilean National Commission on Truth and Reconciliation. Those reports, however, are typically the product of multi-member bodies employing large research staffs. Rick Abel is just one tireless, persistent Recording Angel. His chapters relate every relevant incident—in every relevant detail—of the events he covers, including not only records of proceedings and official reports, but contemporary comments by administration officials, politicians, leading newspapers, academics, and NGOs. His prose is undramatic yet sharp and crisp; the sentences as lucid as pebbles dropped into a clear mountain stream. For the most part, he adopts the role of objective reporter, but in concluding sections to every chapter, he discloses his own analysis and his own judgments.

Those judgments are, mostly, severely critical of the conduct of the “War on Terror,” especially of the Bush Administration’s policies and legal arguments, but to some extent, of the Obama Administration’s as well. Abel divides officials and judges into two camps.  One is the camp of the “executive-minded.” These are the authoritarians inclined to promote or defer to assertions, however improbable, that suspected terrorists might be dangerous; to license coercive interrogation, intrusive surveillance, and “kinetic” military action; and to emphasize the risks of requiring proof before action. The other camp is of “liberal legalists,” concerned with due process, fair and humane treatment of suspected terrorists, dangerous blowback from injury to foreign civilians, and perceptions of world opinion.

Abel presents both sets of views fairly but leaves no doubt that he sides with the liberal “rule of law” parties. The authoritarian tough guys, over and over, damaged America’s reputation without gaining much in the way of results. After the 9/11 attacks, the U.S. government rounded up thousands of innocent Muslims, jailed them for months, mistreated them, and then released them. Military operations in Iraq and Afghanistan killed thousands and exiled millions, while creating new terrorist enemies such as ISIS. The Senate Select Committee on Intelligence, after a mammoth multi-year investigation, concluded that “enhanced interrogation techniques” (torture) used on prisoners yielded little information of value. The military prisons at Abu Ghraib and Guantanamo Bay incited the condemnation of the world for little positive gain: nearly all the prisoners at Guantanamo, said to be the “worst of the worst,” too dangerous to hold even in supermax prisons on the mainland U.S., were eventually released, while congressional Republicans still refuse to close the facility holding the few who remain. The tough guys insisted that suspected terrorists be tried by military commissions, fearing that civilian courts with their due process protections would acquit them. In fact, regular courts efficiently convicted over 660 defendants for terrorism-related offenses, while military commissions have, since their inception, been a complete shamble of carelessly improvised procedures and have achieved only eight convictions, all but one of which was reversed. Rendition of suspects, some demonstrably innocent, to CIA “black sites” or foreign torture chambers has repeatedly embarrassed allied and other governments who cooperated with the United States.

Just as troubling as the mistakes and misdeeds of the authoritarians is the failure of institutions to hold any of them accountable. The chief strategists of the administration that caused most of the damage to the rule of law—President Bush, Vice President Cheney, Chief Deputy Addington, Defense Secretary Rumsfeld, Secretary of State Rice—still defend their actions and policies. Jay Bybee and John Yoo, authors of the famous “torture memos” and other Office of Legal Counsel opinions, succeeded in immunizing CIA interrogators from criminal liability. Although the two were briefly censured by the Justice Department’s Office of Professional Responsibility for slipshod legal work, even that censure was mostly lifted after review. Now, one is a federal judge, while the other is a law professor at Berkeley.

The Obama Administration, notoriously, chose to “look forward and not back.” It declined to assign blame, though it changed many of the policies and tried to close Guantanamo. Its special prosecutor, John Durham, declined to charge CIA officers in whose custody suspects actually died. The most exhaustive investigation of torture, the Select Senate Committee report, was spied upon and attempted to be sabotaged by the CIA as it was being written; it remains unpublished to this day. The most critical report on Abu Ghraib was suppressed before being leaked, and its author, General Antonio Taguba, was forced into an early retirement. Military contractors largely escaped justice for killing civilians in Iraq. The U.S. Supreme Court’s decision, Boumediene v. Bush, said Guantanamo prisoners were entitled to habeas corpus review. But Republican judges on the D.C. circuit have gutted Boumediene by reversing all decisions to grant habeas. With rare exceptions, civil damage suits by innocent victims failed to advance in court, stonewalled by government claims of state secrets. A few low-ranking soldiers were tried for abusing Iraqi prisoners or civilians, but their superiors escaped liability.

Abel chronicles this dismal litany of mostly unrectified abuses with a singularly dispassionate lucidity and objectivity. Among his most effective chapters in Law’s Wars is one on repeated civilian casualties inflicted by military operations in Afghanistan. As one innocent family after another is wiped out, the U.S. military first denies wrongdoing, then concedes, apologizes, and offers modest compensation. Abel relentlessly recites the story of every single case. The cumulative effects on the reader is one of numbing horror.

There are some bright spots in this grim history: lawyers who performed better. Federal judges who tried terror suspects mostly did so fairly (though many of the prosecutions were of hapless mopes who could never have done any real harm without the encouragement of FBI undercover agents). Bar associations mostly spoke out for due process and the rule of law. Volunteer lawyers represented Guantanamo detainees, some while facing fierce criticism. Military lawyers, in particular, pressed for adherence to Geneva Convention treatment even of detainees labeled “enemy combatants”—some at considerable cost to their careers. NGOs like Human Right Watch, the ACLU, and Amnesty International supplied many lawyers to challenge administration policies.

For extensive analysis and critique of the legal doctrines used to prosecute the “War on Terror,” there are, as Abel says, better sources than this. But as a comprehensive record of the legal achievements and failings of this “war,” Abel’s two huge volumes are unlikely to ever be surpassed. In this record, if we want to use it, are the lessons to be learned from this history of excesses, follies, and valiant attempts to safeguard the rule of law.

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Cite as: Robert Gordon, Lawfare in the “War on Terror”, JOTWELL (November 12, 2019) (reviewing Richard L. Abel, Law’s Wars: The Fate of the Rule of Law in the US “War on Terror” (2018). Richard L. Abel, Law’s Trials: The Performance of Legal Institutions in the US “War on Terror” (2018). ),