The lawyers’ war: states and human rights in a transnational field

While torture and assassination have not infrequently been used by states, the post 9/11 ‘war on terror’ waged by the US has been distinguished by the open acknowledgement of, and political and legal justifications put forward in support of, these practices. This is surprising insofar as the primary theories that have been mobilized by sociologists and political scientists to understand the relation between the spread of human rights norms and state action presume that states will increasingly adhere to such norms in their rhetoric, if not always in practice. Thus, while it is not inconceivable that the US would engage in torture and assassination, we would expect these acts would be conducted under a cloak of deniability. Yet rather than pure hypocrisy, the US war on terror has been characterized by the development of a legal infrastructure to support the use of ‘forbidden’ practices such as torture and assassination, along with varying degrees of open defence of such tactics. Drawing on first‐order accounts presented in published memoirs, this paper argues that the Bush administration developed such openness as a purposeful strategy, in response to the rise of a legal, technological, and institutional transnational human rights infrastructure which had turned deniability into a less sustainable option. It concludes by suggesting that a more robust theory of state action, drawing on sociological field theory, can help better explain the ways that transnational norms and institutions affect states.