Concurring Opinions offers its thoughts on When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration“>When Governments Break the Law, edited by Austin Sarat and Nasser Hussain.
It is somewhat difficult to summarize a book containing six very different essays. On first blush, the question seems simple. If, as all the authors in this volume concede, Bush Administration violations can be prosecuted for their alleged crimes, shouldn’t we, in accordance with the rule of law, proceed with such prosecutions? This, however, is just the jumping off point. This is a great book precisely because the authors clearly succeed in demonstrating the complexity and problems with each seemingly simple solution. Neither solution, prosecuting or not prosecuting, will leave the reader completely satisfied, but this is exactly the point.
Ultimately, the events that transpired after 9/11 teach us a valuable lesson about the pliability and malleability of the law. In all the cases that are addressed, the Bush Administration did seek legal cover. Thus, what we have here is not politics shunning law, but politics using law to achieve its ends, even if these ends are illegal. And yet, this is the deep irony. Using law to legalize something which cannot be legalized raises the question of what, exactly, is the role that law plays in its own subversion. The essays in this volume take a meaningful and helpful step in the direction of answering this question.