Plausible legality: legal culture and political imperative in the global war on terror

Abstract

‘I am, in like manner, inclined to believe that a monarch will always be able to convert legal practitioners into the most serviceable instruments of his authority. There is a far greater affinity between this class of individuals and the executive power than there is between them and the people’ (Democracy in America, chapter XVI). Almost two centuries ago, Alexis de Tocqueville observed that lawyers were predisposed to act as handmaidens of the executive power; that is, as ‘serviceable instruments’ of the president's authority. After the attacks on the United States on 11 September 2001 and the ensuing global ‘war on terror’, de Tocqueville's observation rings truer than ever. Lawyers in America have played a critical role in justifying and enabling the evasion of domestic and international law, and have provided legal and constitutional justifications for everything from torture to warrantless surveillance to targeted drone killings of suspected terrorists. In Plausible legality, Rebecca Sanders uses these empirical observations as a jumping-off point for her analysis and asks: ‘Why would the most powerful state in the world bother to justify security policy in detailed legal terms?’ Relatedly, Sanders asks how American legal rationales for security policy have changed over time and what accounts for the changes (pp. 1–2). In other words, Plausible legality does not present new information about what happened—scholars, journalists and watchdog groups have all thoroughly documented the controversial role lawyers have played in the global ‘war on terror’. Rather, Sanders seeks to shed light on what explains this, whether or not it constitutes a break with past practice in the United States, and what the implications are for the fate of human rights in the US and globally.