Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror (Paperback)

~ (Author)
Key Phrases: detaining power, antiterrorism military commissions, illegal interrogation tactics, United States, Geneva Conventions, Supreme Court (more...)

Editorial Reviews

Review

"Paust's work encourages anti-terrorism initiatives to be implemented in the name of the law and not against the law. His work also ensures that those engaged in the struggle against terrorist atrocity sacrifice neither their dignity nor humanity."
-Mark A. Drumbl, The European Journal of International Law

"This particular account conveniently assembles the best of the research, reality, and rhetoric that one could muster to fulfill the quintessential purposes of penning a durable account that is currently informative, and being likely destined to be the beacon for those who must live with the consequences."
-American Society of International Law

Product Description

This book provides a detailed exposition of violations of international law authorized and abetted by secret memos, authorizations, and orders of the Bush administration. In particular, it describes why several executive claims were in error, what illegal authorizations were given, what illegal interrogation tactics were approved, and what illegal transfers and secret detentions occurred. It provides the most thorough documentation of cases demonstrating that the president is bound by the laws of war; that decisions to detain persons, decide their status, and mistreat them are subject to judicial review during the war; and that the commander-in-chief power is subject to restraints by Congress.

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Product Details

• Paperback: 326 pages
• Publisher: Cambridge University Press; 1 edition edition (September 24, 2007)
• Language: English
• ISBN-10: 0521711207
• ISBN-13: 978-0521711203
• Product Dimensions: 8.9 x 5.9 x 0.7 inches
• Shipping Weight: 1 pounds (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (2 customer reviews)
• Amazon.com Sales Rank: #1,138,072 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

5 of 5 people found the following review helpful:

5.0 out of 5 stars Superb account of the Bush administration's unlawful acts, January 30, 2008

By	William Podmore (London United Kingdom) - See all my reviews (TOP 500 REVIEWER)    (REAL NAME)

Jordan Paust is Professor of International Law at the University of Houston's Law Center. He has produced a thorough and definitive account of US war crimes against its detainees.

50,000 people have been detained at Guantanamo Bay, at 25 sites in Afghanistan and 17 in Iraq. As Paust writes, "The `dirty war' would involve at least cruel and inhumane treatment of captured human beings and the forced disappearance of various detained persons, despite the fact that cruel and inhumane treatment and forced disappearance are well-known examples of conduct that is absolutely proscribed under several treaties of the United States and customary international law." The International Committee of the Red Cross described the US's interrogation process as `a form of torture'.

Presidential memos and directives illegally authorised illegal interrogation methods including at least cruel and inhumane treatment and the illegal secret detentions, renditions and disappearance of human beings. President Bush publicly admitted in September 2006 that he had approved `tough' interrogation tactics and a `program' of secret detentions and secret renditions, and that this would continue. Paust writes, "during the long history of the United States, no other President is known to have authorized violations of the laws of war concerning the transfer, treatment, and interrogation of human beings."

Government officials in most European countries, including Britain, are wrongfully complicit in violations of the rights of prisoners secretly detained in and/or transferred through their territory. They are obliged under international law not to be complicit in these violations.

Paust notes the Bush administration's "unprincipled plan to evade the reach of law and to take actions in violation of Geneva law while seeking to avoid criminal sanctions." He goes on, "The common plan and authorizations have criminal implications, as denials of protections under the laws of war are violations of the laws of war, which are war crimes." The illegal denial of combatant and POW status to members of Taliban armed forces provides a pretext for similar denials to US and other soldiers.

Bush's decision to call his post-9/11 policy a `war' on terror meets Al Qaeda's desires, because it upgrades terrorism to armed conflict and glorifies terrorists as warriors. It also makes the Pentagon a legitimate military target and gives Al Qaeda combatant immunity. The USA cannot be at `war' with bin Laden, Al Qaeda or `terrorism' because Al Qaeda is not a state or an insurgent, just a terrorist group. 9/11 was an armed attack, a crime against humanity, and the USA has only the right of selective and proportionate self-defence under the UN Charter against those directly involved.

Paust criticises `the Bush administration's unconstitutional and autocratic commander-above-the-law theory'. He writes, "The claim that the President has authority to violate international laws of war, human rights law, and domestic legislation is patently unconstitutional and unacceptable. Its nihilistic essence is remarkably close to the unlimited psychotic justifications of many terrorists ..."

Paust documents case law showing that presidents are bound by the laws of war and that presidential powers are subject to restraint by Congress, or should be. In fact, the rule of law appears to be ineffective, the separation of powers is not working, as President Bush rides over all judicial and congressional limits. He has claimed the authority to disobey more than 750 laws enacted since he took office.

He sums up, "war crimes policies and authorizations are not merely a threat to constitutional government and our democracy. They threaten law and order more generally, violate our common dignity, degrade our military, place our soldiers and CIA personnel in harm's way, thwart our mission, and deflate our authority and influence abroad. They can embolden an enemy, serve as a terrorist recruitment tool, lengthen social violence, and fulfill other terrorist ambitions." These consequences `are ultimately more threatening than actual terrorist attacks'.

4 of 4 people found the following review helpful:

5.0 out of 5 stars Finally!, February 18, 2008

By	Jennifer Van Bergen "JVB" (Gainesville, Florida) - See all my reviews

Professor Jordan Paust has written a very simple book in which his sole goal is to apply the law - primarily international law - to the actions of the Bush Administration in its "war on terror."

What is unusual is not only Paust's straightforward legal analysis for a lay public, but his fearlessness in the face of great wrongdoing and his willingness to articulate exactly what is wrong. Paust, of course, has the knowledge and credentials to know what he's talking about. He has been a professor of international law at the University of Houston since 1975, is a Fulbright Professor at the University of Salzburg (Austria), a Ford Foundation Fellow at Yale University, and visiting Ball Eminent Scholar University Chair at Florida State University. He is Co-Chair of the ASIL's International Criminal Law Interest Group and his publications have been cited by the U.S. Supreme Court, other courts, and international tribunals. Paust also served in the military.

It may have been no great matter for Paust to write or assemble this collection of essays (all of which have been modified from articles he published in various prestigious law journals, to which he has been a frequent contributor over the past 25 years). He is trained to write this kind of stuff.

But given the high levels of wrongdoing he catalogs, his courage and steadfast adherence to unwavering moral principle must be commended and encouraged if there is to be any hope of recovery from the moral degradation brought on by this regime.

Simply stated, Paust shows that the Bush Administration repeatedly and intentionally violated intentional laws in its so-called "war on terror." Many of these violations constituted war crimes, both under international and domestic law.

The actual text of the book is only 130 pages, with another 170 pages of footnotes. The book, therefore, while dense is concise. (One need not read the footnotes, unless one wants more information.)

When I say the text is dense, I mean it is likely to require an extended effort (and possibly a second reading) by laymen to grasp the distinctions that Paust makes. It is not that Paust's language is too technical or legalistic (although he does occasionally use terms with which the general public may not be familiar). He writes well and clearly. What is difficult to follow are the unbelievably circuitous and meandering legal propositions made by the Bush Administration and the legal rectifications to those propositions. The law itself is complex but Paust does not make us labor to learn it. He condenses volumes into sentences and paragraphs.

However, despite the ease with which Paust articulates the facts and laws, there is so much to learn because so much has been left out of public understanding by the executive's misstatements and the media's failures. Of course, one could argue that members of the media need to read THIS book NOW in order to be able to properly understand and write about what is happening. It would be a rare journalist today who would know how to navigate the waters of the laws of war, which have developed gradually in a somewhat haphazard manner through centuries, and have been modified continually through treaties. This book can remedy media and public ignorance of this important field.

Paust catalogs the various executive plans and authorizations; the actors, abetments, and public paper trails; the refusals to prosecute those liable for these violations; secret detentions, renditions, and forced disappearances; the "We do not torture" ploy; illegal interrogation tactics; improper use of "enemy combatant" designations; mangling military manuals; and more.

The catalog of authorizations, alone, is devastating. Paust does not hedge when he writes: "The role that several lawyers played directly in a dreadful process of denial of protections is particularly disturbing. Not since the Nazi era have so many lawyers been so clearly involved in international crimes concerning the treatment and interrogation of persons detained during war."

He writes that whether or not any of these persons will be tried for their crimes, "the plans, authorizations, and attempted justifications have degraded or military and left a shameful stain on our country that will not be removed. The resultant crimes have served terrorist ambitions, aided their recruitment of others, and exacerbated the continual armed conflict in Iraq."

And finally:

"I know of no other instance in the long history of the United States of a plan approved by lawyers and at the highest levels of our government systematically to deny human beings protection under the laws of war. I know of no other denial by a President of the United States of the fact that the laws of war apply to an international armed conflict during which U.S. armed forces engage an enemy in battle. I know of no other authorization of a President to deny treatment required under the Geneva Conventions. I know of no other instance in our history when a Secretary of Defense, top U.S. generals, or a DOD Working Group approved such denials of protection or the use of interrogation tactics that were either patently violative of the laws of war or could clearly constitute violations in various circumstances."

This statement is found at the end of Chapter One and it is probably the strongest one in the book about the abuses of law that Paust observes. The fact that Paust only infrequently allows himself to express his outrage - and even then, in muted fashion couched in well-supported legal conclusions - makes such statements even more powerful when he does make them.

If you want to know why the term "enemy combatants" (or worse "unlawful enemy combatants") is a misnomer, legally misleading, and dangerous to OUR military personnel; if you want to know why the Geneva Conventions do apply to the present "war on terror" and why they do not need to be revised; if you want to know why President Bush's claim "We do not torture" attempts to avoid answering for violations of international law; if you want to finally really understand what is going on legally, to find the moral compass that has long existed in the laws of war, please read - and reread - this book.