Law’s Detour: Justice Displaced in the Bush Administration

Introduction

NEW YORK UNIVERSITY PRESS New York and London www.nyupress.org© 2010 by New York University All rights reserved Library of Congress Cataloging-in-Publication Data Margulies, Peter. Law’s detour : justice displaced in the Bush administration / Peter Margulies. p. cm. — (Critical America) Includes bibliographical references and index. ISBN-13: 978–0–8147–9559–0 (cl : alk. paper) ISBN-10: 0–8147–9559–5 (cl : alk. paper) 1. Law—Political aspects—United States. 2. Executive power—United States. 3. United States—Politics and government—2001–2009. I. Title. KF385.M368 2010 973.931—dc22 2009046687 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 To my soul mate, Ellen Saideman This page intentionally left blank | vii Contents Acknowledgments ix Introduction 1 1 The Perfect Storm of Politics, Ideology, and Crisis 7 2 Targeting Individuals and Groups 25 3 The Architecture of Impunity 53 4 Centralizing Policy and Patronage 79 5 Conspiracy’s Discontents: 99 Prevention and False Positives After September 11 6 Justice and Elections 127 7 Regulation of Business and the Flight from 141 Accountability at Home and Abroad Afterword 157 Notes 165 Index 213 About the Author 221 This page intentionally left blank | ix Acknowledgments Many people contributed to making this book possible. At the Roger Williams University School of Law, I received great support from Dean David Logan. Research stipends helped not only to aid this project, but also to validate the challenging work involved. I also owe a debt to associate deans Michael Yelnosky and David Zlotnick, and to colleagues Carl Bogus, Ed Eberle, Jared Goldstein, Tim Kuhner, and Colleen Murphy for helpful conversations and advice. Throughout the process, I benefited from our superb law library, whose staff gladly obtained the many books relevant to the project, and from research assistance provided by our team of expert, dedicated, and thoughtful reference librarians, including Emilie Benoit, Stephanie Edwards, Nan Balliot, and Lucinda Harrison-Cox. Student research assistants Laura Corbin and Jennifer Mota were also exceptionally helpful. Friends have offered advice and expertise on many of the topics discussed in the book. I’m grateful for conversations and feedback from Muneer Ahmad, Baher Azmy, Jim Campbell, Bobby Chesney, Kathleen Clark, the late and much-missed Mary Daly, Steve Ellmann, Sam Goodstein, Bruce Green, Peter Raven-Hansen, Dan Richman, Mike Ritz, Sudha Setty, Glenn Sulmasy, Brian Tamanaha, Steve Vladeck, and Ellen Yaroshefsky. While many books have been written about the Bush administration, the inspiration for this one came from Richard Delgado and Jean Stefancic, who looked at the sometimes-impenetrable law review articles I had been laboring over for more than twenty years and saw someone who could write a straightforward book. At NYU Press, editor Deborah Gershenowitz also saw something promising in a mess of academic jargon, and reached out continually with suggestions and encouragement. In addition, I am grateful to NYU Press managing editor Despina Gimbel, copyeditor Nicholas Taylor, editorial assistant Gabrielle Begue, and anonymous peer reviewers, whose comments were invariably useful as I refined the manuscript. Portions of this book appeared as True Believers at Law: Legal Ethics, National Security Agendas, and the Separation of Powers, 68 Md. L. Rev. 1 ...