Settled Law in Unsettling Times: A Lockean View of the War on Terror

As is often the case with ideals, professions of support for the rule of law have been much more widespread than agreements on its meaning during the so-called war on terror. Even though debates over the use of indefinite detentions, military commissions, "enhanced" interrogation techniques, warrant-less wiretaps, and other controversial policies are sometimes portrayed in the media as disputes between those who insist on following established laws at all costs and those who view established laws as obstacles to critical national security interests, both the proponents and the critics of these practices can make reasonable claims that the law is on their side. There is undoubtedly a mixture of hypocrisy, cynicism, and grandstanding in some of these invocations of the law, but everyone seems to agree that in a liberal democratic society it is difficult—if not impossible—to justify any policy, program, or measure that lacks a solid basis in law. Whether sincere or not, everyone appears to accept that law is the only legitimate basis for government action. However, there is a historical and theoretical tradition within liberalism originating with John Locke that justifies the use of extralegal action in certain circumstances. Locke's account of the extralegal power he calls "prerogative" may provide insights into the meaning and limits of the rule of law in dealing with extraordinary challenges.

Legality and Legitimacy in the War on Terror

A good part of the debate over the war on terror has focused on the legality of policies adopted by the Bush administration—many of which have actually been continued with little change by the Obama administration.¹ Criticisms that many anti-terrorism policies violate the rule of law range from cautious claims they "often skirt the legal perimeter"² to furious charges that they are "plainly illegal."³ For instance, some note that the use of waterboarding violates a variety of laws against torture, including the Eighth Amendment's prohibition against "cruel and unusual punishment," Common Article 3 of the Geneva Conventions, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and 18 U.S.C. §§ 2340–2340A. Opponents also argue that the Bush administration had circumvented the procedural requirements established by the Foreign Intelligence Surveillance Act of 1978 and simply ignored the prohibition against indefinite detentions "except pursuant to an act of Congress" mandated by the Non-Detention Act. Critics often point to court decisions in Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), Boumediene v. Bush (2008), and other high-profile cases invalidating elements of the government's detention policies as vindication of their arguments that many aspects of the war on terror have been illegal.

Contrary to assertions that the Bush administration exhibited utter disregard for the law in its efforts to prevent "another 9/11," there is evidence that the Bush administration actually took an "excessively legalistic" approach in seeking to justify some of the most controversial policies it adopted in the first few years after the attacks.⁴ Even Justice Department lawyers who raised moral or political objections to the use of harsh interrogation tactics agreed "the methods themselves were legal."⁵ This is not to say that the law was never distorted (e.g., on prohibitions against torture) or ignored (e.g., through presidential signing statements), but that administration officials vigorously defended counter-terrorism policies within the framework of existing laws they believed were amenable to an expansive understanding of unilateral executive power. Even former deputy assistant attorney general John Yoo, who has complained that "many people have an exaggerated view of the role of law" when it comes to dealing with the threat of terrorism, has consistently maintained that the anti-terrorism policies adopted in the wake of September 11 are lawful.⁶ Likewise, former Vice President Dick Cheney, who has been the most outspoken defender of the Bush administration's policies, has followed Yoo's lead in arguing that officials had sufficient legal authority to intercept communications involving suspected terrorists, detain them indefinitely, and use "enhanced" methods of interrogation. As Cheney explained in a nationally televised speech, "In seeking...