In this trenchant analysis of how the United States has navigated its international legal obligations during the War on Terror, Rebecca Sanders brings a critical lens to such practices as torture, extrajudicial killing, and extensive surveillance of U.S. citizens that have been “made” legal in the twenty-first century. In so doing, she points out that even though the United States has been an ostensible leader in the making of international law (in the twentieth century in particular), it has also always employed strategies of legal evasion.
Sanders classifies these strategies into three legal cultures: a culture of legal exception; a culture of legal secrecy; and a culture of legal rationalization. Each maps onto a different period of U.S. history. A culture of legal exception describes much of pre–World War II America, where large portions of the population—including and especially indigenous peoples and African Americans—did not enjoy the legal protections afforded white U.S. citizens. A culture of legal secrecy shrouded the Cold War period, when the United States hid its human rights violations while presenting itself internationally as a proponent of human rights, in distinction to the Soviet bloc. Most recently, Sanders argues, the United States has brought questionable tactics out of the shadows of the Cold War, instead deploying new legal arguments to justify practices such as “enhanced interrogation,” targeted killings, and warrantless surveillance. It is this latest legal culture that lends the book its title. These practices, previously characterized as exceptional and applied only to certain classes of people or conducted in secret, are today presented as “plausibly legal.”
Sanders takes a sophisticated view of international law. Similar to scholars such as Ian Hurd and Helen Kinsella (see, respectively, How to Do Things with International Law, 2017, and The Image Before the Weapon, 2011), she views law as manipulable, and as a tool for states as much as a constraint upon them. Indeed, in Chapter 2, she presents a theory of law as a “permissive constraint.” The book thus forces the reader to revisit questions about the relationship between law and morality, and the specific issue of whether and when the fact that a particular practice is deemed legal can lead to moral satisficing. These are big questions whose importance cannot be overstated. Plausible Legality is clearly motivated by a desire to mitigate the human costs of war, and is as useful for its critical analysis as it is for its clear and remarkably jargon-free overview of the ways in which the laws of war have been used and abused in the “War on Terror.”
To provide evidence for her argument, Sanders deftly takes the reader through three main issue areas in human rights law: torture; deprivations of life and liberty (detention, trial, and targeted killing); and, surveillance. For each issue area, she provides a narrative account of the evolution of these three legal cultures. In making an argument about changing legal cultures, however, the book also raises fascinating questions about continuity in both culture and practice.
For example, while the role of race is most explored in the context of the culture of legal exception, it continues to be critical to the cultures of legal secrecy and, especially, of legal rationalization of highly questionable policies. Sanders is of course correct that a culture of legal exception supported the claim that slave torture could be justified in eighteenth- and nineteenth-century America (pp. 40–41). As she notes, however, racism was also an important enabler, if not motivator, of torture by U.S. forces during the Vietnam War, which falls under her culture of legal secrecy (p. 46). And it is not much of a reach to suggest that racism, particularly anti-Muslim sentiment, is a factor in torture perpetrated by U.S. forces against detainees in the War on Terror, as seems abundantly clear from acts committed by American soldiers at Abu Ghraib and elsewhere. In other words, while the legal strategy of justification may change, the subjects of legal violations share important racialized characteristics. This point raises a broader set of questions around the consequences of changing legal cultures, and specifically whether these changes translate into real differences for the victims of human rights abuses.
In order to make the claim that there have been three legal cultures that have allowed the United States to navigate its own perpetration of human rights abuses, Sanders must draw clean theoretical and historical boundaries around these cultures. But it is worth noting that, in fact, these boundaries are likely quite permeable. An important question that she raises is whether these legal cultures build upon each other. Put another way, elements of all three legal cultures identified by the author are visible in the United States today, and were so even prior to the 2016 presidential election. Human rights violations certainly continue in secret (see the discussion of extraordinary renditions around p. 65), as well as under the auspices of legal rationalizations. And one has only to glance at the state of race relations in America today to understand that cultures of exception persist. Is it the case, then, that all three legal cultures have always been present in U.S. politics? Or, is the move from a culture of legal exception to legal secrecy to legal rationalization cumulative? Or is the analysis simply meant to emphasize the relative weight of certain types of legal justification in a given historical time period?
Consideration of the consequences of these shifts also raises questions about their causes. Plausible Legality is more effective at making the case that these three legal cultures exist than in explaining how we get from one to the other. To be fair, this would have been a very different book had Sanders taken on both tasks fully; readers might have easily glossed over the important case she makes for the very existence of these three different legal cultures. But because all good books raise as many questions as they answer, having this one in hand affords the opportunity for discussion on this point.
One possible explanation for the shift in legal cultures refers to existing literature on legalization and international law. Could it be, as Martti Koskenniemi’s argument in The Gentle Civilizer of Nations (2009) might suggest, that the proliferation of lawyers specializing in national security, human rights, and international law more generally over the course of the twentieth- and twenty-first centuries has made this particular reshaping of legal culture especially likely? Testing this hypothesis would require bringing more agency into Sanders’s account. In particular, we would have to learn who the shapers of legal culture were, and are. Has the educational profile of key players at agencies such as the Defense Department and Department of Justice changed over time? The author’s discussion of the Judge Advocate General’s Corps and how JAGs pushed back against the Bush administration’s enhanced interrogation practices (p. 60) is especially intriguing and to this point.
Other possible explanations for change in legal cultures refer to a changing media landscape and the importance of public opinion. Throughout the book, Sanders mentions both phenomena, but does not fully explore either. The notion that the media today are much better able to uncover such abuses is not new; most recently, this point has been made by Kathryn Sikkink (Evidence for Hope, 2018). But the role of the public in Sanders’s analysis remains a bit of an enigma. Presumably, the U.S. public is a key audience for the legal rationalizations of the War on Terror. But do such rationalizations swing public opinion in any way? While, again it would have been too much for Sanders to both elaborate the argument about cultures of legality and explain the shifts between and among them in one book, she strikes me as exceptionally well positioned to take on this latter question in future work.
One reason it is so important to understand the drivers of change in legal cultures is because, as the author notes, the United States may be at another legal inflection point. She wonders, at several points in the book (but especially in Chapter 6) whether Trump administration policies that, for example, restrict immigration from Muslim-majority countries are harbingers of a return to a culture of legal exception. The inherent nostalgia of the “Make America Great Again” campaign notwithstanding, though, it seems just as likely that if there is a move to be made, it will be a move to an extralegal culture in which violations of the law are not painted as exceptions or hidden away or rationalized, but rather normalized.
In distinguishing legal cultures around national security, Plausible Legality raises a number of enduring questions. Sanders should be applauded for offering a framework that sheds light on current and pressing debates in national security and human rights law.
