Justice at War: The Men and Ideas That Shaped America's War on Terror

How did America become a nation that tortured prisoners, spied on its citizens, and gave its president unchecked powers in matters of defense? Has justice been the greatest casualty of the war on terror?After the attacks of September 11, 2001, the Bush administration swiftly began to rethink its approach to national security. In a series of memos and policy decisions, many top secret and only made public much later, the administration’s lawyers dismissed the Geneva conventions as “quaint,” justified the torture of suspected terrorists, argued that the president in his capacity as commander in chief was bound by no laws in defending the nation at home and abroad, and approved a domestic surveillance program that flagrantly violated US law.In Justice at War, David Cole takes a critical look at the men who made the decisions that shaped America’s war on terror. After September 11, Attorney General John Ashcroft aggressively expanded federal law enforcement powers. John Yoo, who served in the Justice Department’s Office of Legal Counsel, drafted some of the most controversial memos justifying torture. David Addington, Dick Cheney’s counsel, argued for virtually unlimited presidential power. Alberto Gonzales, Bush’s counsel, seemed willing to defend the president’s view on any issue.

Yet Cole believes that America can prevail against the threat of terror, not by dismantling the checks and balances that guarantee the fairness of our justice system but by restoring them. He discusses how Michael Mukasey, the new attorney general, may try to improve the Justice Department’s tattered reputation. He explains why the Supreme Court rejected the president’s claim of authority to try enemy combatants in military tribunals under rules that violated the Geneva conventions. And he considers arguments by legal scholars about the limits of constitutional protections when the nation is under the threat of terrorism.Yet above all we must remember that the Constitution embodies principles that we should not give up in times of fear, Cole argues: “Both the strength and security of the nation in the struggle with terrorists rest on adherence to the rule of law, including international law, because only such adherence provides the legitimacy we need if we are to win back the world’s respect.”

David Cole is a professor of law at Georgetown University Law Center. His latest book, written with Jules Lobel, is Less Safe, Less Free: Why America Is Losing the War on Terror.