Exceptional Security Practices, Human Rights Abuses, and the Politics of Legal Legitimation in the American “Global War on Terror”

Given the contradictory reality of a well-developed human rights and humanitarian regime alongside extensive human rights abuses committed in the “Global War on Terror,” the dissertation asks how and why law has shaped contemporary security policy. Focusing on the American case over time, I examine this problem empirically by tracing the changing impact of both international and domestic legal and normative constraints on torture and interrogation, detention and trial, and surveillance practices, culminating in post-9/11 counterterrorism doctrine. I find that policy makers have increasingly violated rules with the adoption of controversial security and intelligence policies, but have simultaneously employed legalistic arguments to evade responsibility for human rights abuses. Using contrasting realist, decisionist, liberal, and constructivist accounts of the nature of state compliance with norms and law found in International Relations and legal scholarship, the dissertation theoretically explains this outcome and with it, law’s ability to moderate national security practice. In so doing, I propose an original reading of law as a permissive constraint, which challenges us to rethink paradigmatic assumptions in a way that accommodates both strategic and normative factors and recognizes the role of practice in giving content to rules.Ph