Book review: The War on Terrorism and the Rule of Law

Mathieu Deflem
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Book review of The War on Terrorism and the Rule of Law by Richard M. Pious published in Law and Politics Book Review, Vol. 16 No. 10 (October, 2006) pp. 860-862.

Plase cite as: Deflem, Mathieu. 2006. Review of The War on Terrorism and the Rule of Law by Richard M. Pious. Law & Politics Book Review 16(10):860-862.

THE WAR ON TERRORISM AND THE RULE OF LAW, by political scientist Richard Pious of Barnard College, offers an analysis of the war on terror conducted by the Bush administration from the viewpoint of the constitutional issues involved, especially with respect to due process requirements. A central concern of the book is to offer thoughtful materials to establish ways in which terrorism can be combated effectively within the confines of the framework of liberties and rights guaranteed by the U.S. constitution. By the author’s own admission, the book is not written from a neutral point of view, as Pious acknowledges that he believes that “in many instances the government has gone too far in its infringement on civil liberties and that it has not prosecuted the war on terror effectively” (p.ix). The author’s candid revelation of his personal position is refreshing, although it might disturb some readers and prevent them from reading this useful book.

Pious’ book is divided in various thematically ordered chapters, reviewing relevant legal cases and other official documents, such as congressional testimony, investigative reports, and presidential speeches, accordingly. It begins with an overview of the United States counter-terrorist strategies before and since September 11, for, indeed, it is important to be reminded in these turbulent post-9/11 times that terrorism and the various efforts to combat it have been with us for some time now. What is remarkable, if not entirely unique, about contemporary developments in counter-terrorism is the treatment of terrorism from the viewpoint of national security concerns that are defined in terms of warfare efforts aimed at unlawful combatants.

Reflecting on the war on terror in terms of due process, Pious does not accept a trade-off model whereby either terrorism is fought ineffectively and due process is preserved or terrorism is fought effectively while some due-process rights are inevitably sacrificed. Instead, the author argues that terrorism can only be fought effectively within proper constitutional boundaries. The protection of rights by the U.S. government, especially as it functions within an adversarial system, would itself help to eliminate the risks of terrorism. Conversely, holding suspects in detention on vague charges without access to legal counsel and other constitutionally protected rights will only embolden critics and may be used in evidence against the government’s response to terrorism.

Among the themes Pious addresses in detail are, first of all, a series of implications of the PATRIOT Act. Among them are problems associated with use of warrantless surveillance techniques, particularly with respect to the provision of the Foreign Intelligence Surveillance ACT (FISA). A broad understanding and interpretation of FISA requirements have effectively implied considerable broadening of legal police powers. The implications hereof were most clearly revealed in 2005 when the Terrorist Surveillance Program conducted by the National Security Agency was uncovered and reported in the media, leading to heated discussions, at least for a short while, on domestic spying. Likewise among the hot topics of debate surrounding the war on terror have been the privacy implications of data mining techniques that probe into email messages and internet communications. As problematic have been the surveillance programs used against charitable organizations that have been accused of providing material aid to terrorist groups.

Not only suspects of terrorism, but also material witnesses in counter-terrorism cases, have recently been subjected to broader interpretations surrounding the necessity of their detention than in the years before 9/11. Closely related to this practice is the indefinite holding of aliens and widening of the scope of policing powers by immigration agencies, as well as detention of American citizens and enemy combatants. Most typically, the central justification of such practices is that terrorism relates to national security concerns and that the executive branch of government can therefore legitimately claim special powers.

The two final chapters deal with interrogation tactics employed by U.S. agencies and the use of military tribunals, respectively. That interrogation methods are more than a mere matter of technique has been known for some time, particularly since the transformation of coercive to manipulative questioning strategies. The return of repressive methods of interrogation involving torture, however, has reinvigorated the ethical discussions on counter-terrorism considerably. The use of military tribunals in the war on terror, finally, has remained a source of contention since they were first used after 9/11 and will likely remain so now that President Bush signed the Military Commissions Act on October 17, 2006. The Act allows the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the US. Amongst other criticisms, it is unclear whether the Act can also be used against US citizens.

In general, I find that Pious provides a helpful guide for those who are seriously interested in fostering an intellectually sound discussion on current and future counter-terrorism strategies. It is, after all, as easy to oppose some of the excesses of the current war on terror as it is to make bold and readily unconvincing statements about the virtues of any and all tactics used against the terrorist threat. What is in this respect most helpful about this informative book is that the official sources, especially the legal cases and government documents, have been edited to be more easily accessible to a public broader than only experts of law. Each chapter is both informative and provocative. The book might, however, have benefited from a concluding chapter that ties the various elements of discussion together in a comprehensive review of the issues.

As outlined in the Preface, this book can be useful in courses with students who already have some basic understanding of the U.S. constitution and other relevant aspects of public law. Political science students at a more advanced level and in seminars designed for small-group discussion will likewise benefit from this book, as will serious law and social science students. Each chapter is followed by a series of questions and comments that can stimulate discussions. Most helpful, besides the summaries of relevant official documents, I find the fact that this book, despite the author’s occasionally strong personal opinions, can stimulate rather than prevent debate. No matter the author’s position, readers will have to take sides on the issues raised in this book, which nobody can possibly deny are extremely significant in the current political and cultural climate surrounding terrorism and war.

See related writings on terrorism and police.