On Sunday morning, May 2, 2004, I drove home to Santa Monica from hiking in the Grand Canyon. It’s eight hours, mostly a straight shot on I-10 through the desert. That can be tedious, but I had NPR’s “Weekend Edition” for company. It featured Seymour Hersh’s exposé of Gen. Antonio Taguba’s devastating report on Abu Ghraib. The story riveted millions in the USA and abroad. However, I had a personal interest for two reasons. First, Sy is my brother-in-law. I vividly remembered how, 35 years earlier, he had broken the news about Lt. William Calley’s role in the My Lai massacre – reporting that contributed to ending the Vietnam War. Second, between 1989 and 1991 I studied the role of South African law and lawyers in the struggle against apartheid for my 1995 book Politics by Other Means. Abu Ghraib seemed to present a threat to the rule of law similar in magnitude to those I had studied in South Africa. I knew I had to explore the fate of the rule of law during the “war on terror,” which the USA unleashed in response to the 9/11 attacks. I have spent the last 13 years doing so. (I use scare quotes because I agree with many others that one cannot wage a war against a noun.)

In the more than two centuries since the USA was founded, the rule of law has been tested and compromised in numerous ways: the oppression of Native Americans, slavery, Jim Crow, labor struggles, the treatment of German Americans in World War I, Japanese Americans in World War II, and radicals after both wars, the civil rights movement, protests against the Vietnam War, and more recently the distortion of the electoral process by money, gerrymandering, and disenfranchisement, and police responses to the Occupy movement and killings of young black men documented by Black Lives Matter. The “war on terror” has posed at least as great a danger.

I fully acknowledge that the “war on terror” has inflicted harms far more grievous than those suffered by the rule of law. It has killed hundreds of thousands and wounded many more, displaced millions of refugees, and caused untold amounts of property damage. The USA has squandered more than a trillion dollars on a “war” that cannot be won. It has destabilized entire nations so severely that, like Humpty Dumpty, they may never recover: Afghanistan, Iraq, Syria, Yemen, Somalia, Libya. Iran has greatly increased its influence in Iraq, Syria, and Yemen. The “war on terror” spawned ISIS, which continues to export terrorists throughout the world and inspire imitators.

Nevertheless, I have focused on the rule of law for several reasons. It is an indispensable foundation of liberal democracy. It enjoys support (or at least elicits lip service) across the political spectrum, unlike geopolitics, which is fiercely debated. And it is what I know as a law professor. In Chapter 1, I offer a definition of the rule of law (one that would garner a broad consensus), explain why it is essential, and draw on studies of its fate at other times and places to construct the research questions I seek to answer.

For many reasons, I expected the rule of law to prove more resilient in the USA than it had in South Africa. The USA has had a written constitution and judicial review of legislative and executive action for more than two centuries; South Africa had neither. The two major American parties contest elections every two years and peacefully transfer power; the National Party had dominated South Africa since 1948, black people were disenfranchised, and for 13 years Helen Suzman was the sole opposition voice in parliament. US federal judges have been appointed by both parties; the National Party appointed all South African judges, almost none of whom was critical of the regime. The US legal profession is large, well-endowed, and increasingly (if imperfectly) representative of the population it serves; professional associations and many lawyers have courageously defended the rule of law. Almost all South African lawyers were white (even though 87 percent of the population was black), and few openly opposed apartheid. The USA has a rich civil society with many well-funded NGOs; South Africa had outlawed the ANC and aggressively sought to control or undermine the relatively few legal anti-apartheid organizations. US media are vibrant and aggressive; the South African government controlled all radio and television, and only a few small newspapers opposed the regime (some suffering closure for doing so). Finally, the South African government terrified white people with the specter of the swaart gevaar and rooi gevaar (black and red threats), convincing most that their very existence was at stake. Republicans in the USA tried to do the same by waging a “war on terror.” But critics argued that the criminal justice system was a more appropriate response; and Obama insisted that terrorists, however evil, could never pose an existential threat to the USA.

Just as studying South Africa colored my expectations about the “war on terror,” so it initially shaped my methodology when researching this book. I began by approaching the Center for Constitutional Rights, which generously let me study their ongoing litigation on behalf of Arab and Muslim men rounded up after 9/11 and harshly mistreated in federal prisons before being deported. (It is illuminating – and profoundly depressing – that one of those cases, Ziglar v. Abbasi, is still unresolved.) But I gradually realized that efforts to defend the rule of law in the US “war on terror” were very different from the anti-apartheid struggle of the 1980s. South Africa had just two principal legal organizations challenging apartheid: the Legal Resources Centres and the University of Witwatersrand’s Centre for Applied Legal Studies (with its associated law firm of Cheadle, Thompson & Haysom). The 12 cases I analyzed in my earlier book represented a large proportion of all the legal challenges. In the USA, by contrast, thousands of lawyers from organizations like CCR, the ACLU, and Human Rights First joined private lawyers working pro bono and public defenders to defend the rule of law. And they litigated thousands of cases.

Although no book could encompass the entire universe, this book and its companion, Law’s Trials, include 14 challenges to electronic surveillance, 20 criminal prosecutions, seven courts-martial, five reviews of military commissions, 37 civil damage actions, 33 civil liberties cases, and about a hundred habeas corpus petitions (many of which went up and down the appellate hierarchy, some several times). And both books necessarily emphasize the outsized roles played by NGOs, the media, and the political process.

My two volumes complement each other; but each can be read independently. The present volume discusses five terrains of contestation: Abu Ghraib (which exposed “war on terror” tactics, sparking the public debate), Guantánamo Bay (whose shackled men in orange smocks kneeling in front of razor wire beneath a blazing sun became the enduring image of the “war on terror”), interrogation (and the Bush administration’s efforts to create a legal framework for and justify torture), electronic surveillance (uncovered first by the New York Times and then by Edward Snowden, and affecting virtually all Americans, as well as foreign governments and IT companies), and law of war violations (on battlefields in Afghanistan, Iraq, Pakistan, and Yemen, by drones, bombs and night raids; and in secret prisons and extraordinary renditions). Law’s Trials deals with the legal processes in which the rule of law was tested: criminal prosecutions of alleged terrorists, courts-martial for law of war crimes, military commissions for so-called high-value detainees, habeas corpus petitions by those detained in Guantánamo (and elsewhere), civil damages actions by victims of both the “war on terror” and terrorism, and civil liberties violations and Islamophobia. Although there is inevitable overlap (e.g., CSRTs in Guantánamo and habeas petitions, extraordinary renditions and claims for civil damages), there is virtually no repetition.

I began this project to understand what happened to the rule of law during Bush’s “war on terror,” because his administration initiated the wars in Afghanistan and Iraq, extended them to Pakistan and Yemen, and bears responsibility for the law of war violations there as well as in Abu Ghraib and Guantánamo, and for the OLC memos, torture, secret prisons, extraordinary renditions, electronic surveillance, and military commissions. But I felt compelled to extend my research through the Obama administration. Obama immediately made several dramatic course corrections by closing secret prisons and repudiating torture. But he perpetuated other practices implicating the rule of law: electronic surveillance, criminal prosecutions, courts-martial, military commissions, and resistance to habeas petitions and civil damages actions. Congress frustrated his efforts to close Guantánamo. And he intensified the controversial use of drones, killing hundreds, including US citizens. I completed the books as Trump was elected and have not tried to cover his administration for two reasons. First, it is early days. More importantly, his utter contempt for the rule of law – calling for the imprisonment of Hillary Clinton, issuing the Muslim ban, personally attacking judges who opposed his actions, firing FBI Director James Comey, threatening Special Counsel Mueller’s investigation, encouraging police brutality, and refusing to condemn racist violence – represent an extreme rupture of American traditions, which will require its own book (by someone else). Nevertheless, where appropriate I indicate some of the ways the Trump administration departs from its predecessors.

Although hundreds of books have been written about the “war on terror,” the present volumes are distinctive in several ways. First, they address all 16 years of the Bush and Obama administrations, allowing comparisons between them. Second, they cover the entire gamut of rule of law violations, facilitating comparisons within each volume – did reactions to interrogation differ from those to surveillance, did the “war on terror” differently deform criminal prosecutions and civil damages actions – as well as across the volumes: did the Abu Ghraib courts-martial differ from those for battleground atrocities, did efforts to end torture differ from those to compensate victims?

Third, whereas many books expose how the Bush and Obama administrations violated the rule of law – offering indispensable critiques of OLC opinions, executive actions, legislation, and judicial opinions – I am concerned with efforts to defend it. For that reason, I do not focus on explicating or criticizing legal doctrine (though I present enough of the legal framework to make the defenders’ actions comprehensible). Instead, I take a sociolegal approach, seeking to identify who responded to rule of law violations, how they did so, and with what consequences. And I look at the entire range of responses, both within the state (executive, legislative, judicial, electoral) and outside (victims of rule of law violations, lawyers, media, NGOs, foreign governments, and businesses). My ultimate objective in writing these books is to learn what works – and what doesn’t. The “war on terror” appears to have no end. Rule of law defenders possess limited capital: political, cultural, and material. They must use it wisely.

Many individuals and institutions provided invaluable help over the last 13 years. UCLA Law School gave me an office after I retired in 2008, essential for housing the thousands of pages of documents I accumulated. Its Law Library found obscure sources and, through Linda O’Connor, assigned me dedicated law student Research Assistants: Robert Hurwitz, Matthew Sgnilek, Michelle Alig, Jennifer Roche, Matthew Meyer, Daniel Cha, Kyle Jones, Keri Livingston, Brian Maucotel, Cesar Rivera, and Maggie Yates. Benjamin Nyblade performed the statistical analysis of the tables of cases I constructed. The UCLA Academic Senate’s Council on Research supported my research on NGOs in New York, whose important role in defending the rule of law will be apparent in list of references. At CCR, Michael Ratner (its director, who was several years behind me at Columbia Law School) and Rachel Meeropol (who litigated Abbasi) were especially hospitable. My debt to the investigative journalists who indefatigably uncovered rule of law violations is visible in almost every one of the thousands of footnotes. Three blogs augmented the newspapers I read – Lawfare, Center on National Security at Fordham Law School, Just Security – together with Robert Chesney’s national security law listserv. Finally, the Torture listserv, which Kim Scheppele founded at Princeton University early in the “war on terror” became an indispensable source of insight and discussion, conducted according to the highest standards of collegiality.

In his 1890 Principles of Psychology, William James famously (if perhaps inaccurately) said the world presented itself to babies “as one great blooming, buzzing confusion.” That was how the “war on terror” looked to me when I began to study it. David Foster Wallace perfectly captured my predicament:

Readers will judge if I have chosen well.

This book is dedicated to the victims of the US “war on terror” and those who fought to defend the rule of law, in the hope of encouraging and informing their ongoing struggle.