Law's Trials: The Performance of Legal Institutions in the US "War on Terror" by Richard L. Abel (review)

I. INTRODUCTION

The human rights community has long struggled with a paradox—a belief that justice will prevail in the midst of human rights abuses, yet one tempered by a sobering reality that suggests otherwise. In the aptly titled, Law's Trials, Richard Abel studies how legal institutions in the United States functioned during the "War on Terror."¹ While this meticulously detailed study documents hundreds of legal proceedings since 9/11, it is really a broader critique about law and justice, and an acknowledgment that these two concepts are not always coterminous.

Law's Trials is a sequel of sorts. It follows Abel's concurrent study, Law's Wars, which examined five "terrains of contestation" in the "War on Terror:" Abu Ghraib, Guantanamo, interrogations, electronic surveillance, and international humanitarian law (ius in bello).² Law's Wars examines the laws that regulate these five "terrains." In contrast, Law's Trials focuses on legal proceedings and the role of judges and lawyers in these proceedings. Collectively, the two books examine "14 challenges to electronic surveillance, 20 criminal prosecutions, seven courts-martial, five reviews of military commissions, 37 civil damage actions, 33 civil liberties cases, and about a hundred habeas corpus petitions."³

Law's Trials examines six distinct legal realms: (1) criminal prosecutions; (2) courts-martial; (3) military commissions; (4) habeas corpus proceedings; (5) civil damages actions; and (6) civil liberties claims. Abel takes a sociological approach, studying when, why, and how legal institutions functioned within these legal realms and how they defended the rule of law.⁴ Each chapter examines the key legal proceedings and the role of judges and lawyers within each realm. The endnotes reveal the rigorous nature of Abel's research, referencing judicial decisions, court hearings, legal filings, government documents, and media reports. Each chapter ends with an overall assessment of how legal institutions fared within each legal realm.

Perhaps the central feature of Law's Trials is Abel's analysis of judges' perceived political orientations and their corresponding rulings. Abel is interested in determining how politics influences law. To assess a judge's political orientation, Abel examines the political ideology of the president who appointed the judge to the federal bench.⁵ He includes his coding data in a detailed Appendix.⁶ According to Abel, judges appointed by Republican presidents were generally more likely to support executive action whereas judges appointed by Democratic presidents were likely to be more critical of such action.⁷ There were, however, some notable exceptions.

II. LAW'S REALMS

After 9/11, the US government initiated numerous criminal prosecutions against suspected terrorists and other individuals as part of the "War on Terror." These proceedings took place in federal courts throughout the country and encompassed a variety of criminal claims, including providing material support to terrorists or terrorist organizations, lying to a federal agent, violating federal weapons laws, conspiracy to kill US government officials, and conspiracy to use weapons of mass destruction. Immigration charges were also common. Convictions were high in these proceedings. While guilt was not in doubt in most cases, the government's litigation strategy generally made convictions inevitable.⁸ Abel expresses concern with the government's charging of inchoate offenses and its liberal use of the material support statute, both of which empowered the government to address many distinct acts and greatly increased the likelihood of conviction. Other problems with these criminal proceedings included the use of undercover agents, confidential witnesses, and the government's reliance on national security to justify restrictions on attorney representation, client contact, and the release of evidence. Despite these challenges, Abel acknowledges the dedication and persistence of defense counsel. In fact, their work proved to be even more complicated because many of their clients were defiant and sought to politicize every aspect of their proceedings.⁹

In describing these criminal proceedings, Abel notes that the "War on Terror...