The War of Terror and the Rule of Law

INTRODUCTIONSince the end of World War II, American lawyers and judges-myself included-have preached the benefits of the rule of law throughout the world.'This American message has generally been received with favor, whether by officials of the former Soviet Union, former Communist bloc jurists in Eastern Europe, or legal groups in Africa, the Middle East, Asia, the Pacific Islands, or elsewhere.The American legal messenger, so to speak, has been regarded throughout the world as a trusted figure of goodwill, mainly by virtue of close identification with the message borne: that the rule of law is fundamental to a free, open, and pluralistic society; that ours is a government of laws and not of persons; that no one-not even the President-is above the law; and that the government is bound by the Constitution and laws enacted in conformance therewith.The credibility of this message, however, has been steadily undermined over the last six years since we began the so-called "War on Terror."Since then, the American rule of law message-as well as its messenger-has been greeted with increasing skepticism and even hostility.The actions we have taken in the War on Terror, especially our detention policies, have belied our commitment to the rule of law and caused this dramatic shift in world opinion.Since 9/11, the Bush Administration has been at war with the rule of This is a slightly extended and footnoted version of the Jefferson Memorial Lecture, delivered at the University of California, Berkeley, on September 17, 2007.I am grateful to Dean Andrew J. Szeri, of the Graduate Division, and Professor Harry N. Scheiber, Chair of the Jefferson Lecture Committee, for their hospitality during my wife's and my visit to Berkeley.I also acknowledge the research assistance of Michelle Comeau, one of my law clerks for the 2006-07 term, and Todd Borden, a student at UCLA Law School, an extem in my chambers