Human rights and security
My research examines the capacity of human rights and humanitarian norms to shape controversial state practices during national security crises and armed conflicts and the reciprocal impact of state violence on the rule of law.
Plausible legality
After 9/11, American officials authorized numerous contentious counterterrorism practices including torture, extraordinary rendition, indefinite detention, trial by military commission, targeted killing, and mass surveillance. While these policies sparked global outrage, the Bush administration defended them as legally legitimate. Government lawyers produced memoranda deeming enhanced interrogation techniques, denial of habeas corpus, drone strikes, and warrantless wiretapping lawful. Although it rejected torture, the Obama administration made similar claims and declined to prosecute abuses. This book seeks to understand how and why Americans repeatedly legally justified seemingly illegal security policies and what this tells us about the capacity of law to constrain state violence. It argues that national security legal cultures shape how political actors interpret, enact, and evade legal norms. In the global war on terror, a culture of legal rationalization encouraged authorities to seek legal cover––to construct the plausible legality of human rights violations––in order to ensure impunity for wrongdoing. In this context, law served as a permissive constraint, enabling abuses while imposing some limits on what could be plausibly legalized. Cultures of legal rationalization stand in contrast with other cultures prevalent in American history, including cultures of exception, which rely on logics of necessity and racial exclusion, and cultures of secrecy, which employ plausible deniability. Looking forward, legal norms remain vulnerable to manipulation and evasion. Despite the efforts of human rights advocates to encourage deeper compliance, the normalization of post-9/11 policy has created space for the Trump administration to promote a renewed culture of exception and launch bolder attacks on the rule of law
Also see Critical Dialogue: Plausible Legality: Legal Culture and Political Imperative in the Global War on Terror (Rebecca Sanders, Oxford UP, 2018) and Wars of Law: Unintended Consequences in the Regulation of Armed Conflict (Tanisha Fazal, Cornell UP, 2018), Perspectives on Politics 17, no. 2 (June 2019).
From bringing back waterboarding, to violating treaty obligations, to banning Muslims, Donald J. Trump has proposed numerous extralegal policies. We examine the implications of this disdain for legality, arguing that Trump’s frequent hostility and indifference to legal rules and institutions paradoxically impede his capacity to enact his promises and damage international law. To situate Trump’s legal politics, we draw comparisons with the Bush and Obama administrations. As constructivists note, the vitality of legal norms is dependent not just on one state’s actions, but crucially on others’ reactions. While Trump has gone beyond his predecessors in rhetorically attacking international law, the backlash he generates limits the realization of his agenda in part due to his failure to convince others to violate the law or revise legal rules in novel ways. When the administration does reluctantly pursue legal justifications for controversial policies, it is better able to overcome legal constraints and political opposition.
The United States has regularly engaged in targeted killing in its post-9/11 “global war on terror,” deploying lethal force—most commonly in the form of drone strikes—against alleged militants in numerous countries across Central Asia, the Middle East, and Africa. While decried by critics as illegal assassination or extrajudicial killing, the United States has consistently claimed this practice is lawful. For the most part, targeted killing continues to enjoy bipartisan support domestically and tolerance internationally. Unlike other controversial security practices such as torture, secret and indefinite detention, or warrantless surveillance, the legality of targeted killing has not been successfully contested by human rights advocates. There is thus every reason to expect that targeted killing practices will persist and expand in years to come.
To understand this state of affairs, I argue that we must examine how the United States has leveraged the law of armed conflict, also called international humanitarian law (IHL), to maximize its freedom of action. While its early positive leadership helped develop international law to manage the post-World War II international order, the United States has offered a circumscribed form of consent to legal rules that minimizes its own legal obligations. Moreover, while increasing scrutiny and criticism have led U.S. policymakers to internalize IHL as a guide to legitimate conduct, authorities have interpreted the law instrumentally to advance strategic goals. In seeking to establish what I call the “plausible legality” of contentious practices (Sanders 2018a; 2018b), U.S. officials have secured immunity and claimed legitimacy for actions that might otherwise be illegal.
After the September 11, 2001 terrorist attacks on New York and Washington D.C., the United States launched the “global war on terror,” a transnational military campaign against Al Qaeda and associated forces. In pursuit of its adversaries, the Bush administration, and to varying degrees, the subsequent Obama and Trump administrations, authorized numerous abusive practices including torture and cruel, inhuman, and degrading treatment of detainees, secret and indefinite detention without fair trial, extrajudicial killing that strains the standards set forth by the law of armed conflict, and mass surveillance without a warrant. While human rights violations are ubiquitous in irregular armed conflicts, the last two decades of US counterterrorism are notable for the extent to which American authorities have sought to legally justify their actions. Rather than overtly violate domestic and international legal norms, or rely solely on secrecy to evade detection of illegal programs, US policymakers have deployed lawyers to construct the plausible legality of “enhanced interrogation techniques,” targeted killing, and other controversial practices. This has successfully immunized perpetrators from prosecution while hollowing out legal rules, reducing the capacity of human rights law to constrain state violence.
Law following and law breaking are often conceptualised as polar opposites. However, authorities in liberal democracies increasingly deploy a strategy of what I call plausible legality in order to secure immunity and legitimacy for proscribed practices. Rather than ignore or suspend law, they construct legal justifications for human rights abuses and other dubious policies, obscuring the distinction between legal compliance and non-compliance. I argue this is possible because instabilities in legal rules make them vulnerable to manipulation and exploitation. By tracing American rationales for contentious ‘enhanced interrogation techniques’, indefinite detention, and ‘targeted killing’ practices in the ‘Global War on Terror’, I show that law need not always be abandoned or radically reconstituted to achieve troubling ends and that rule structures enable certain patterns of violation while limiting others. The international prohibition on torture is robust and universal, but provides vague definitions open to interpretation. Detention and lethal targeting regulations are jurisdictionally layered and contextually complex, creating loopholes and gaps. The article concludes by reflecting on implications for the protection of human rights. While law is not wholly indeterminate, human rights advocates must constantly advocate shared legal understandings that constrain state violence.
NORM PROXY WAR AND RESISTANCE THROUGH OUTSOURCING
A great deal of constructivist international relations research on norms focuses on the diffusion of liberal human rights values. In contrast, this article analyzes how critics seek to undermine human rights principles in contexts where human rights norms are increasingly hegemonic. It argues that when norm challengers are frustrated by the institutionalization of human rights, they engage in transnational strategies to pursue their agendas. In norm proxy war, actors patronize surrogates in locales where norms are weak in the hope that victories abroad will reverberate internationally and at home. This dynamic is illustrated by American evangelical sponsorship of political homophobia in Uganda, culminating in that country’s draconian anti-LGBT legislation. When norms are resisted through outsourcing, actors contract out human rights violations in an effort to erode norms through practice, as evidenced by patterns of extraterritorial detention and extraordinary rendition to torture in the post-9/11 “Global War on Terror.” Identifying these patterns broadens understanding of potential pathways of norm contestation.
Torture is the infliction of severe physical or mental pain or suffering on a victim. It includes acts of overt violence as well as less visible, stealth torments. Torture can serve numerous purposes including punishment, degradation, divining truth, demonstrating power, eliciting confessions, and obtaining information. Torture may result from the initiative of sadistic individuals, but can also be tolerated by organizational cultures, directed by bureaucratic institutions, and mandated by political and religious authorities.
The American embrace of “targeted killing” outside traditional theaters of war has proved highly contentious in recent years. According to detractors, the practice constitutes unlawful political murder or assassination. In contrast, proponents suggest the United States is engaged in a transnational, noninternational armed conflict with Al Qaeda and is thus permitted to kill enemy belligerents. This article demonstrates that arguments in favor of targeted killing are emblematic of the “Global War on Terror” to date, which has sought to limit the application of human rights rules in favor of a war paradigm, to expand the meaning of combatancy, and to erode the geographical borders of armed conflict. These dynamics highlight a critical paradox at the heart of US counterterrorism policy. The more legality is strategically invoked to legitimize security practices, the less able it is to substantively limit state violence and to protect human rights.
American government memoranda authorising controversial interrogation, detention, and surveillance practices raise questions about the role of legality in shaping post-9/11 counterterrorism. Have policy makers ignored the law and declared a ‘state of exception’? Alternatively, have they attempted to covertly evade rules through ‘plausible deniability’? This article suggests that the ‘Global War on Terror’ has been characterised by a distinctive relationship between legality and security policy. Human rights violations have become official government policy, publicly justified and legally rationalised by top administration lawyers. Yet, for the most part, the law has not been overtly suspended in favour of unmitigated sovereign power. Rather, policy makers have pursued a strategic doctrine of ‘plausible legality’ aimed at securing immunity and legitimacy for abuses, an approach epitomised by the legalisation of torture.