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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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The Spider’s Web

The Spider’s Web

How Government Lawbreakers Routinely Elude the Law

(p.121) 4 The Spider’s Web
When Governments Break the Law

Stephen Holmes

NYU Press

This chapter explores how the rule of law confers immunity to government officials who violate the law. It considers the ways in which Bush administration lawbreakers have been using, and will continue to use, resources furnished by the law itself to reduce their criminal and civil liability. It argues that the rule of law is not an effective constraint on official misconduct such as torture and that pursuing a criminal prosecution would have the perverse effect of allowing Bush administration officials to claim that they have been legally exonerated. It also discusses the misuse of law by inveterate lawbreakers as a domestic version of “lawfare” and concludes with an analysis of the role of organizing complicity or “risk spreading” in obstructing criminal prosecution of former Bush officials.

Keywords:   rule of law, criminal prosecution, Bush administration, torture, immunity, liability, risk spreading, lawfare, complicity

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