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When Governments Break the LawThe Rule of Law and the Prosecution of the Bush Administration$
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Austin Sarat and Nasser Hussain

Print publication date: 2010

Print ISBN-13: 9780814741399

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814741399.001.0001

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PRINTED FROM NYU Press SCHOLARSHIP ONLINE (www.nyu.universitypressscholarship.com). (c) Copyright University of NYU Press Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in NYSO for personal use.date: 22 October 2019

Vindicating the Rule of Law

Vindicating the Rule of Law

Prosecuting Free Riders on Human Rights

(p.37) 1 Vindicating the Rule of Law
When Governments Break the Law

Claire Finkelstein

NYU Press

This chapter argues that the rule of law can only be vindicated by a criminal prosecution of Bush administration officials. It first considers how we should understand the relationship among the Bush administration's public rhetoric condemning torture, its private internal efforts to justify its own use of harsh interrogation methods to itself, and its actual practices. It then examines what bearing this relationship would have on whether officials who authorized such techniques should be subject to prosecution. It also articulates the basic argument in favor of a societal “publicity condition” with respect to legal rules and goes on to discuss the gap between the publicly announced commitment to democracy and human rights, on the one hand, and the actual policies used to govern, on the other. Finally, it assesses the implications of President Barack Obama's refusal to prosecute Bush administration officials for the rule of law and the United States's attempt to secure international cooperation in the war on terror.

Keywords:   rule of law, criminal prosecution, Bush administration, torture, publicity condition, democracy, human rights, Barack Obama, international cooperation, war on terror

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