When Governments Break the Law

The Rule of Law and the Prosecution of the Bush Administration

234 pages

October, 2010

ISBN: 9780814741399



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Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Previous collaborations for NYU Press with Charles J. Ogletree include From Lynch Mobs to the Killing State: Race and the Death Penalty in America (2006), When Law Fails: Making Sense of Miscarraiges of Justice (2009), and The Road to Abolition? The Future of Capital Punishment in the United States (2010).

All books by Austin Sarat

Nasser Hussain is Associate Professor in the Department of Law, Jurisprudence and Social Thought at Amherst College. He is the author of The Jurisprudence of Emergency: Colonialism and the Rule of Law.

All books by Nasser Hussain

Recent controversies surrounding the war on terror and American intervention in Iraq and Afghanistan have brought rule of law rhetoric to a fevered pitch. While President Obama has repeatedly emphasized his Administration’s commitment to transparency and the rule of law, nowhere has this resolve been so quickly and severely tested than with the issue of the possible prosecution of Bush Administration officials. While some worry that without legal consequences there will be no effective deterrence for the repetition of future transgressions of justice committed at the highest levels of government, others echo Obama’s seemingly reluctant stance on launching an investigation into allegations of criminal wrongdoing by former President Bush, Vice President Cheney, Secretary Rumsfeld, and members of the Office of Legal Counsel. Indeed, even some of the Bush Administration’s harshest critics suggest that we should avoid such confrontations, that the price of political division is too high. Measured or partisan, scholarly or journalistic, clearly the debate about accountability for the alleged crimes of the Bush Administration will continue for some time.

Using this debate as its jumping off point, When Governments Break the Law takes an interdisciplinary approach to the legal challenges posed by the criminal wrongdoing of governments. But this book is not an indictment of the Bush Administration; rather, the contributors take distinct positions for and against the proposition, offering revealing reasons and illuminating alternatives. The contributors do not ask the substantive question of whether any Bush Administration officials, in fact, violated the law, but rather the procedural, legal, political, and cultural questions of what it would mean either to pursue criminal prosecutions or to refuse to do so. By presuming that officials could be prosecuted, these essays address whether they should.

When Governments Break the Law provides a valuable and timely commentary on what is likely to be an ongoing process of understanding the relationship between politics and the rule of law in times of crisis.

Contributors: Claire Finkelstein, Lisa Hajjar, Daniel Herwitz, Stephen Holmes, Paul Horwitz, Nasser Hussain, Austin Sarat, and Stephen I. Vladeck.


  • “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... 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.”

    —Concurring Opinions

  • “While we think of the crimes of the Bush-Cheney administration as lying somewhere in the past, the aggressive wars, warrantless spying, lawless imprisonment, and torture continue. This collection looks deeply into one likely way to end these crimes, namely enforcing the laws against them. Included are serious and informed voices both for and against prosecution.”

    —David Swanson, author of Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union