Law or Power: An Application of Legal Theory To The Practice of American National Security Policies

The US government has employed torture, drone assassination, and suspended due process in its “War on Terror.  These methods have been criticized on moral grounds for violating basic principles of justice and constitutional grounds for usurping power not delegated to the executive.   My critique focuses on a third overlooked factor.  I show that many actions undertaken in the war on terror are simply not law governed.  I am not claiming that officials or judges have misinterpreted the law.  Rather, I argue that certain actions do not meet the criteria of law like behavior as understood by any conception of law.  Using theorists as disparate as Hart, Raz, Fuller and Dworkin, I will show that the policies fail to meet the criteria of any rule or principle governed theory of law.  Applying these theories to the use of torture and the military commissions at Guantanamo I will show that that the requirements of law as producing reasons for action are not met in these cases.