Why Care About The Rule of Law?

by publius

I’ve been reading Jane Mayer’s The Dark Side, and it’s very good. The book provides a comprehensive look at the administration’s novel and generally lawless response to 9/11 (detention, rendition, etc.). It’s a somewhat radicalizing read (and frankly, I don’t need the help these days).

But it got me thinking about the larger “rule of law” debate that will surely be one of the enduring Bush legacies. Throughout these debates, activists have had a hard time getting the public to care about Bush’s rule of law abuses. For good or bad, much of the public just doesn’t have an abstract moral commitment to the idea of the “rule of law,” assuming the actual abuses are removed from their own lives.

The great benefit of Mayer’s book is that it illustrates the concrete, empirical harm that Bush’s lawlessness caused. In this respect, it provides a compelling -- living, breathing -- response to the vexing question of “why should I care?”

In reading Mayer, one striking aspect of the administration’s anti-terrorism policies is how completely haphazard and impetuous they were. There was practically no deliberation within the government, particularly among the branches who (1) actually knew something about this stuff; and (2) were, you know, statutorily authorized to do something.

Instead, a lawless cabal of ignorant people – Yoo, Addington, etc. – decided to craft national anti-terrorism policy having basically no experience in the relevant fields (military, terrorism, etc.). The disparity between (1) the magnitude of decisions being made, and (2) the relative ignorance of the people making them is simply staggering. The Geneva Convention – one of the greatest accomplishments of mankind, and US policy for decades – was gone with a stroke of John Yoo’s pen (noted military expert John Yoo). A decision to free the CIA from laws against torture, and to break with decades of precedent and opt for kangaroo court military commissions over courts martial – all gone, all upon an uninformed whim.

Predictably, it led to terrible results. These precise decisions (1) led to grotesque abuses of innocent people; (2) entangled the Bush administration into ongoing and embarrassing legal battles; and (3) discredited us throughout the world.

What’s interesting is that all of these problems stemmed quite directly from abandoning the established law and policies (e.g., Geneva Convention protections; courts martial). The benefit of these traditions – in a Burkean sense – is that they not only have legitimacy, but have the wisdom of the ages built into them. The traditional military justice system, for instance, had the benefit of past case law and past experiences. Kangaroo courts, by contrast, did not.

More generally, when you cast law aside, it creates uncertainty. When you free people from traditional constraints that have been tested and perfected over time, it’s inevitable that confusion and abuse would occur.

Notably, the Yoo/Addington strategy also didn’t work – the book, for instance, has a fascinating passage on how the FBI’s initial kind treatment of al-Libi generated more intelligence than the lies he told after the CIA started torturing him (lies that provided a key foundation for Powell’s speech and the war, coincidentally).

And that leads to the larger point – the Bush administration’s abuses illustrate (in a concrete way) precisely why we should care about the rule of law. It’s a story as old as Ulysses. Law exists because man is weak, and captive to passions. We bind ourselves ahead of time to the mast, because we know we’ll be unreliable if, say, a couple dozen terrorists attack our cities.

Respecting the rule of law is about far more than promoting some abstract moral principle. It keeps us from screwing up when we’re mad -- when we're enraged. The aftermath of 9/11 is when we needed law the most. We needed the restraints of prior deliberation and the wisdom of past generations to guide us through our blind rage – to ensure that we didn’t do things we would come to regret. But instead, we chucked all those restraints aside – as cowardly members of Congress looked on or even cheered.

Much of the generation-long damage Bush caused would have been avoided if we had simply respected the law -- if we hadn’t let the cabal create the problems it did.

Don’t get me wrong – the abstract moral argument is important too. But as the perspective of time sets in, what I hope people also see is that abandoning the rule of law had real concrete harm -- not merely to the poor souls we tortured, but to our country and its status in the world. It was the proximate cause of so many subsequent American woes and moral stains.

And so the lesson going forward is that we need to respect the rule of law, not merely for its own sake, but to avoid the negative consequences that inevitably occur when we cast it aside because we just “know” better. If Mayer’s book is anything, it’s a somber lesson on the limitations of mankind.

Law is the single best weapon against these limitations – and we should respect it for that reason.

Comments

[Fraud Guy]

"More generally, when you cast law aside, it creates uncertainty. When you free people from traditional constraints that have been tested and perfected over time, it’s inevitable that confusion and abuse would occur."

Amen. But there are those that feel that there is a higher law to follow (even though they don't).

[CharleyCarp]

Those who feel that The Law of the Jungle is the higher law FG refers to need to be kept away from power.

It's not over yet. The government's current position on who is a 'combatant' under the law of war -- a definition that will be applied beyond this country and beyond this war -- should be scaring everyone.

[d'd'd'docile dave]

"Much of the generation-long damage Bush caused..."

I don't know many eight-year-olds who are having children.

[d'd'd'docile dave]

I will stipulate that the administration was "a lawless cabal of ignorant people".

How has the rule of law stopped terrorist attacks on innocent civilians anywhere in the world in the "generation" that has passed since 9/11. How has it stopped north korea and iran from working to develop nuclear weapons while verbally threatening the rest of us? How has it stopped genocide in Darfur and Congo? How did it stop the Pakistani nuclear guy (what's his name?) from selling nuke secrets all over the world?

[Whammer]

Um, d'd'd',

What the heck is your point?

Are you saying that the rule of law has been followed, and has been ineffective in the cases you question?

Or are you -- as you seem to be -- agreeing that the current administration is a "lawless cabal" -- which would tend to mean that you think their approach might be effective in the cases you cite? Yet the fact that you cite them seems to indicate that you think they have not been solved.

Are you seriously suggesting that the rule of law has been in effect in Darfur and the Congo?

I don't understand a dang thing you're saying.

In other words, and I mean this in the nicest possible way, WTF?

Sincerely,

Whammer

[KCinDC]

Dave, as far as I'm aware, Obama -- miraculous as he might be -- does not have a magical reset button he can press on January 20 to restore things to the way they were before Bush. The damage will continue long beyond eight years.

And how has abandoning the rule of law helped any of those things?

[russell]

publius --

Thank you for this. Well said.

Don’t get me wrong – the abstract moral argument is important too. But as the perspective of time sets in, what I hope people also see is that abandoning the rule of law had real concrete harm

Abandoning the rule of law had real concrete harm *because* it was an abandonment of the abstract moral argument. The two are not separable.

The law is an attempt to encode the abstract moral argument. It doesn't get it right all the time, which is why we change laws as we go along.

But the reason that our abandonment of the rule of law had concrete harm is because it represents an abandonment of the moral basis for action.

I don't know many eight-year-olds who are having children.

Start counting the generation from the year 2000.

How has the rule of law stopped terrorist attacks on innocent civilians anywhere in the world in the "generation" that has passed since 9/11.

How has the rule of law stopped hurricanes? How has it stopped cancer? How has it stopped greed, or nasty schoolyard sarcasm, or hemorrhoids?

The point of living by the rule of law is not that it is efficacious 100% of the time in preventing bad things from happening. It's not a utilitarian argument.

The point of living by rule of law is that none of us, not one, is above moral failure or corruption, so we depend on the law, rather than our private virtue, to regulate our public lives.

It might actually cost us something, now and then, to live by the rule of law. So be it.

Thanks -

[CharleyCarp]

dave, I like this game. Does the rule of law kill germs that can cause bad breath? Is it stronger than dirt? Is it two, two mints in one? Does the rule of law sometimes feel like a nut? Does it sometimes not?

Was the Padilla plot, whatever it was, broken up by being put into custody over at the Southern District of New York? Or did only moving him to military custody end that threat? Ditto Al Marri. And Reid: after being subdued by passengers, he was arrested, tried in a real court, and is in jail.

Enough with the bedwettery.

[d'd'd'docile dave]

Before 9/11, the universe was presumably functioning under the rule of law. Yet 9/11, the cole bombing, the embassy bombings, the first trade center bombing, the long-running congo war, the long-running darfur genocide, the rwanda genocide, the disintegration of somalia, the disintegration of Zimbabwe, happened.

After 9/11, Bush & Co. lost minds, the rule of law no longer existed on our side, and the world ... uh ... got ... uh ... more lawless? Not. The level of lawlessness has remained constant.

It seems to me that the rule of law is wonderful for regulating affairs within relatively orderly environments where a single authority exists. It is not much use outside of that environment.

When the bomber comes after you it won't do much good to place a restraining order on him to stay 100 yards away.

[Rune]

And so the lesson going forward is that we need to respect the rule of law...

Well, sure, but...

If the rule of law is to have any meaning beyond public lamentations over the acts of the Bush/Cheney cabal, it requires prosecution of those who tortured and waged a war of aggression in violation the 3rd Geneva Convention and U.S. law. Those prosecutions may also be the only way the U.S. can distance itself in the eyes of the world from the illegalities of the last seven years.

[magistra]

After 9/11, Bush & Co. lost minds, the rule of law no longer existed on our side, and the world ... uh ... got ... uh ... more lawless? Not. The level of lawlessness has remained constant.

No, the level of lawlessness in the US has increased, and thus added to the level of lawlessness in the world as a whole (unless you feel that the US is not part of the real world). If you are going to argue that the US's lawlessness has decreased other countries' lawlessness you need to provide some evidence for this. Because we're still having genocide and bombings and disintegrating states after Bush's descent into lawlessness. What has Bush's lawlessness achieved positively?

Because I can tell you what it's achieved negatively. The US has lost a tremendous amount of moral authority in the world. Now, when it tells the governments of other countries that they shouldn't torture people or detain them without trial or invade other countries, who is going to do anything but laugh and finger-point back?

Maybe you don't think a country's reputation matters, as long as it can bomb someone into submission. But the last seven years has shown the limitations of hard power. You don't win hearts and minds via lawlessness and you can't win respect by others for law and order when you don't exhibit them yourself.

[anon.]

Maybe you don't think a country's reputation matters, as long as it can bomb someone into submission. But the last seven years has shown the limitations of hard power. You don't win hearts and minds via lawlessness and you can't win respect by others for law and order when you don't exhibit them yourself.

Amen. Speaking as a foreigner generally well-disposed to the American people, their lifestyles and their culture, the last 8 years have done a lot to make me very suspicious of the US state. In essence, when you imprison my compatriots for several years without trial -- even if they happen to be guilty -- you lose my respect. And when this line of thinking becomes commonplace across dozens of allied countries (as it has), it has a detrimental effect on US power and security. I'm mildly optimistic about this Obama bloke, but after seeing people from my home town locked up in Guantanamo for years without trial, it's going to be a very long time before I trust the US again. Sorry. But that's kinda how it is -- trust is hard to earn, and easy to lose.

I'm sad to say it, but I get the impression that the US government doesn't have a lot of friends in the larger world these days. The Bush administration set a lot of bridges on fire, and they won't magically be rebuilt when Obama takes office. Oddly, it might be the case that since you burnt the damn things, the onus is on you to rebuild them.

[Jesurgislac]

d'd'd': How has the rule of law stopped terrorist attacks on innocent civilians anywhere in the world in the "generation" that has passed since 9/11.

Suggest you go read about the fifty years of Anglo-Irish conflict after WWII. Pay particular attention to how the lawless imprisonment and torture of suspected terrorists in the Seventies did sod-all to protect the innocent civilians who were getting killed, will you?

[Jesurgislac]

When the bomber comes after you it won't do much good to place a restraining order on him to stay 100 yards away.

Oh, god, after so many years, why are people still talking as if the kidnap victims of the US, locked up and tortured by the US military, were all guilty?

Dave, when the US decided it had a right to kidnap people from foreign countries without proper extradition processes, to lock them up without trial, to have them tortured, what this meant was not that a load of "bombers" got locked up.

What this meant was that a load of innocent civilians got locked up.

You're talking as if you cared about protecting innocent civilians. But you're actually talking about having innocent civilians kidnapped, imprisoned for years, and tortured.

[Jesurgislac]

Rune: If the rule of law is to have any meaning beyond public lamentations over the acts of the Bush/Cheney cabal, it requires prosecution of those who tortured and waged a war of aggression in violation the 3rd Geneva Convention and U.S. law. Those prosecutions may also be the only way the U.S. can distance itself in the eyes of the world from the illegalities of the last seven years.

And the problem with that - sorry for this three-in-a-row commenting - is that it's all or nothing.

If Obama sets in train an investigation, if it is honest and complete, it will implicate Bush and Cheney, and Cheney at least cannot escape being prosecuted for deciding to break the law on torture: he sat in on committee meetings discussing how best to torture suspects. (Bush, I suppose, could defend himself by asserting that during his 8 years at the White House he was a hopeless alcoholic, lied to by all, who came forward and mouthed what he had been told to say when his handlers told him to say it.)

Obama is pretty conservative. He may well just figure that it was only foreigners (mostly) being tortured, only foreigners being locked up lawlessly, and it's not worth the political fight to have Bush and Cheney investigated and prosecuted merely because a bunch of foreigners were kidnapped, extra-judicially imprisoned, and tortured. Or so I've assumed ever since he supinely accepted Bush's choice for SecDef.

[Brett Bellmore]

Does the rule of law really mean anything to you folks? I don't think so. You just differ from Bush about which parts of it you have contempt for.

You can say "rule of law" all day long, but if the moment the Constitution prohibits something you like, (Such as gun control) or doesn't authorize something you want to do, (Extension of federal power into intrastate and non-commerce matters.) suddenly it becomes a "living document", then the rule of law has just been chucked out the window.

The rule of law doesn't mean squat if you can't accept it when the law runs against you.

And you can't. In fact, you've got a whole systematic rationalization of how it never does, because it lives and breaths, and changes to be whatever you want.

Rule of law? In your dreams.

[Jesurgislac]

Brett, whatever you're smoking, can I have some of it? It looks to be just what I need to deal with a weekend spent with my family all geared up for Christmas terror.

[Shane]

"When the bomber comes after you it won't do much good to place a restraining order on him to stay 100 yards away."

dave, why do you describe the entirety of the justice system (everything from parking fines to the death penalty, from a local sherriff to the SCOTUS (and please, please, one day including the ICC in the Hague)) as a slap on the wrist? As if restraining orders are the only penalty in existence. (A lot of conservative commenters, who usually love them some Law n Order, talk the same way. I don't get it.)

"It seems to me that the rule of law is wonderful for regulating affairs within relatively orderly environments where a single authority exists. It is not much use outside of that environment."

Rule of law absolutely does not require everyone to buy in. Nonsense. It is specifically for protecting those who would be orderly against those who would not, and for *extending* order where it is lacking. It has worked fine against mafioso and mass murderers; It has worked against revolutionaries of all stripes; It will work against these as well.

[john miller]

Brett, there are many quite convincing arguements that the Constitution does not prohibit "gun control." So that arguement of yours doesn't work.

And by the extension of federal power into intrastate and non-commerce matters, I assume you are refering to the 2000 USSC decision to stop the recount in Florida.

Dave, since when does the rule of law say all you can do to a terrorist is slap a restraining order oh him/her?

Unfortunately, to most Americans, the rule of law only applies to potential violence against them directly, which is why the activism really had no impact on general views of the public. And any tactic which may reduce that potential violence is okay.

Americans are no less narcissistic or self-centered than other people in the world. We are no more governed by higher principles than other people in the world. And it is for those exact reasons that we need the rule of lsw to actually mean something in this country, even if it still doesn't mean anything in others. Even more so the less it means anything elsewhere.

Obama, despite the fact that he is vastly superior to Bush in this regard, is still vulnerable to the same temptations, as is anybody who gets into positions of power.

Oh, and I almost forgot. Dave, it is partially precisely due to Bush's disregard of the law that countries like Iran and North Korea have been able to do what they have done.

[Doctor Science]

When people (right or left) talk about "what is a conservative", they often say "conservatives have a pessimistic view of human nature" -- and conservatives themselves will say that liberals have the unrealistic belief that people can be improved or perfected. Yet the rule of law is founded on the premise of human infallibility, so why have so many conservatives been willing to abandon it at the drop of a hat?

Many of the "paleo-conservatives", like the amconmag.com people, definitely dug in their heels on this point, but they're currently a minority. Most importantly, the authoritarians -- who stress the importance of strict moral codes to counteract natural human depravity -- seem quite willing to trust authority figures acting without strict codes.

Stuttering Dave's comment at 1:25am is illuminating: It seems to me that the rule of law is wonderful for regulating affairs within relatively orderly environments where a single authority exists. Inside the protective fence of authority, the pessimistic view of human nature supports the rule of law. Outside that fence, pessimism leads Dave to reject the rule of law.

The lynchpin, of course, is the authority itself -- or himself, or themselves. Authority *is* the fence, and it is outward-facing, so it must not be subject to the rules inside the fence. The pessimistic view of human nature has to stop at authority's door -- we have to trust them, or... what? it doesn't make sense to me, but maybe it does to Dave.

[KCinDC]

Dave, it's threads like these that make me wonder about your self-description as libertarian. The real libertarians I know are outraged at the idea of government torture or indefinite imprisonment without trial.

[Hogan]

Notably, the Yoo/Addington strategy also didn’t work – the book, for instance, has a fascinating passage on how the FBI’s initial kind treatment of al-Libi generated more intelligence than the lies he told after the CIA started torturing him (lies that provided a key foundation for Powell’s speech and the war, coincidentally).

From one perspective, the strategy didn't work. But since one of the historical functions of torture is to produce false confessions, and since in this case a false confession was exactly what the Bush administration wanted, that may not be their perspective.

[Monte Davis]

Many of you know it, but Robert Bolt's A Man for all Seasons can never be quoted too often:

Wife: Arrest him!

[Sir Thomas] More: For what?

Wife: He's dangerous!

Roper: For all we know he's a spy!

Daughter: Father, that man's bad!

More: There's no law against that!

Roper: There is, God's law!

More: Then let God arrest him!

Wife: While you talk he's gone!

More: And go he should, if he were the Devil himself, until he broke the law!

Roper: So, now you give the Devil the benefit of law!

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast. Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then?

Yes, I'd give the Devil benefit of law, for my own safety's sake!

[Monte Davis]

Many of you know it, but Robert Bolt's A Man for all Seasons can never be quoted too often:

Wife: Arrest him!

[Sir Thomas] More: For what?

Wife: He's dangerous!

Roper: For all we know he's a spy!

Daughter: Father, that man's bad!

More: There's no law against that!

Roper: There is, God's law!

More: Then let God arrest him!

Wife: While you talk he's gone!

More: And go he should, if he were the Devil himself, until he broke the law!

Roper: So, now you give the Devil the benefit of law!

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast. Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then?

Yes, I'd give the Devil benefit of law, for my own safety's sake!

[Jesurgislac]

Many of you know it, but Robert Bolt's A Man for all Seasons can never be quoted too often

Twice at least, in this very thread. ;-)

[Lee]

Russell said: The point of living by rule of law is that none of us, not one, is above moral failure or corruption, so we depend on the law, rather than our private virtue, to regulate our public lives.

Bingo. This, BTW, is also the reason that Libertarianism will always fail in practice; it is supported by the assumption that in the absence of legal systems (aka "government interference"), most people will be guided by private virtue. This works well only if there's an author making sure things come out okay in the end.

[Unfrozen Caveman]

bush=bad
law=good

*slow clap*

Allow me a couple criticisms. First, if you're going to write about the "rule of law," it would be useful to at least reference the body of law to which you're referring and the specific acts that violate such law. I assume your argument is: (1) certain acts against (2) certain individuals in (3) certain circumstances constitute (4) torture (as defined by international law) and (5) that such acts violate certain constitutional provisions that were codified in a (6) statute. more detail would be helpful... and no, i'm not going to read the book.

Second, you're giving far too much credit to addington/yoo. these guys may have had a hand in crafting the policies, but without the approval of Meester Boosh (huffington pronunciation) their work would have been filed in a dustbin.

Also, Brett can fight his own battles, but he seems to be referring the fact that most liberals favor a constitutionally impermissible extension of federal power via use of the commerce clause while, at the same time, advocating strict adherence to constitutional dictates on other matters. The point is: liberals (and everyone else for that matter) are strict constructionists or judicial activists depending on the circumstances.

[d'd'd'docile dave]

Almost everyone seems to be responding to my question "how has the rule of law stopped violence?" by saying "Lack of the rule of law hasn't stopped violence."

They are answering a different question. I guess they don't have a good answer for the question I asked. They are saying 'we can't stop the violence of others but at least we can stop the violence of ourselves. This may be true but it is not satisfying. It ignores the fact that the rule of law works in lawful places because of the implicit threat of of state 'violence' i.e. the state will 'kidnap' you and put you in jail if you break one of it's rules.

I realize I'm being a bit ridiculous but I think those who are arguing against me fail to acknowledge that lawful society can only occur where it is protected from unlawful society,

[Jesurgislac]

Almost everyone seems to be responding to my question "how has the rule of law stopped violence?" by saying "Lack of the rule of law hasn't stopped violence."

Apart from me, who pointed out to you - admittedly by referring you to history and requiring you to go look stuff up! - that when you take away the rule of law, this actually increases violence.

The UK government's brutal and unlawful mistreatment of captured IRA terrorists is now acknowledged as counterproductive in that it encouraged people in Northern Ireland to see the IRA as heroes and martyrs, building support for them against the UK government.

The US government did worse: at least the majority of those taken by the UK government as IRA terrorists were, though illegally mistreated, actually directly involved with the IRA. The US government, however, has kidnapped, imprisoned, and tortured thousands of people who were guilty of nothing. We have the Birmingham Six, to our shame: you have the Guantanamo Bay Several Hundred, and that's just one, public, visible gulag.

[d'd'd'docile dave]

Shane
You: "Rule of law absolutely does not require everyone to buy in. Nonsense. It is specifically for protecting those who would be orderly against those who would not, and for *extending* order where it is lacking. It has worked fine against mafioso and mass murderers; It has worked against revolutionaries of all stripes; It will work against these as well."

Me: "where a single authority exists. It is not much use outside of that environment."

We have been able to suppress but not eliminate mafioso by recourse to law enforcement in an environment that we more or less control. But, the 'war on terror' is much more about suppressing bad stuff outside an environment we control. Don't you see the difference?

[Nell]

For good or bad, much of the public just doesn’t have an abstract moral commitment to the idea of the “rule of law,” assuming the actual abuses are removed from their own lives.

That's probably so, but the public's attitude to the phrase "rule of law" might have something to do with the way it became a slogan of shrieking, partisan witch hunters during the effort to impeach Pres. Clinton (just as that same dishonest campaign tainted impeachment as a tool for upholding the rule of law).

[togolosh]

those who are arguing against me fail to acknowledge that lawful society can only occur where it is protected from unlawful society

As you fail to acknowledge that protecting the lawful from the unlawful cannot be achieved by destroying the law. The law constrains our actions, but protection is still possible within those constraints. If our first response to threat is to jettison the law, we are not in fact a lawful society, we are an unlawful society adopting the appearance of lawfulness without the substance. In choosing that path we give moral affirmation to all those who choose the path of unlawfulness regardless of whether or not they also choose to disguise themselves.

[d'd'd'docile dave]

john miller // it is partially precisely due to Bush's disregard of the law that countries like Iran and North Korea have been able to do what they have done.//

Really? Was Bush president between 1979 and 2000 when Iran was going rogue? Was Bush president during the early years of Kim Jong Il and the reign of Kim's father?

The prosecute-Bush-and-Cheney crowd appears to be more against bush then against innocents being terrorized. They worship the law more than peaceful existence. I'm still waiting to hear a more efficacious alternative than the current war on terrorism.

[Jesurgislac]

But, the 'war on terror' is much more about suppressing bad stuff outside an environment we control. Don't you see the difference?

I live in part of the world that's "outside the environment we control", Dave. I live in the UK.

My fellow citizens were kidnapped by your country, flown to Guantanamo Bay, imprisoned illegally for years, and tortured. The US has acknowledged no wrong-doing and it seems likely that your next President will do nothing to prosecute those responsible for this.

You call this "suppressing bad stuff". I fail to see what "bad stuff" was suppressed.

[Brett (the other Brett)]

I don't think it's really hard to understand that adhering to the clear prohibition on torture would have been a good idea on all fronts. Mayer (and Joseph Margulies before her) showed that the torture regime was built because it could be built, and because of a bureaucratically-driven transference of SERE into the realm of interrogations, and that it pretty much turns out to have been a really stupid idea in addition to being morally repugnant. Publius's argument seems pretty strong here.

And this is for Bellmore: The right's boogeyman of a Living Document is mirrored by the right's insistence that the Vesting Clause magically allows the President to do anything in the name of carrying out the executive power. In fact, it's even worse, because at least the living constitution has some connection to broader social and historical movements that can act as an interpretive check - the living constitution needs to be defended with reference to societal changes that are there for all to see. In contrast, the strong version of executive power arguments only posit a check in the executive itself. Since the executive can then classify all the relevant information, there isn't much of a check at all. If anyone supports a "living document," it's the folks on the right who argue that the constitution is radically reinterpreted at the knife's edge of presidential action, every second of the day.

[d'd'd'docile dave]

doctor science

//The lynchpin, of course, is the authority itself -- or himself, or themselves. Authority *is* the fence, and it is outward-facing, so it must not be subject to the rules inside the fence. The pessimistic view of human nature has to stop at authority's door -- we have to trust them, or... what? it doesn't make sense to me, but maybe it does to Dave.//

I think this is a good argument. Thank you.

The laws inside the fence should effect the authority's actions inside the fence and the authority should be held accountable. I'm specifically talking about the authority's actions outside the fence, with regard to individuals and states that work outside law.

[d'd'd'docile dave]

My last comment.

I abide by law. I like law. I think law is good. Our leaders should be bound by law. Torture is bad. Put Bush and Cheney on trial if you want (with a jury of their peers, ha). Free all the guantanamo captives. Doo dah doo dah. Now, tell me what you're doing to stop the next Mumbai or train bombing or whatever. No one yet has given a satisfactory answer to that. All I've heard is 'if we keep the law then we'll be more admirable and they'll like us better' which ignores the fact that all this stuff happened before we disdained law.

[togolosh]

Now, tell me what you're doing to stop the next Mumbai or train bombing or whatever.

Develop intelligence assets close to the terrorists. Signals intercepts. Monitor websites, mailing lists, chat rooms and other virtual fora where terrorist sympathizers gather. Pressure foreign governments with terrorists ties to provide intelligence (use both the carrot and the stick). Note on this latter point the Mumbai attack was carried out by a group with ties to our *ally* Pakistan, which continues to harbor known terrorists as well as being the current hiding place of Bin Laden. Also pressure the Saudis to end funding for radical religious propaganda. Work to defang issues that create sympathy for the terrorist cause, such as the Occupied Territories.

And, of course, when terrorist suspects are captured, use effective interrogation techniques instead of something cooked up by people who read to many hysterical cold war thrillers and think that "24" is a documentary.

[magistra]

Now, tell me what you're doing to stop the next Mumbai or train bombing or whatever.

If you want to prevent terrorism, you do what you do to prevent any kind of violent crime. You try and prevent people turning to specific crimes (by reducing the risk factors which lead people to become criminals) and you cultivate a network of informers who will warn you about possible forthcoming crimes. These efforts won't succeed in stopping all future terrorism, but they can reduce the incidence.

What both attempting to deradicalise Muslims (or Hindus or Irish Catholics or whoever) and attempting to build information networks within Muslim/Hindu/Irish Catholic communities etc require is a feeling by such communities that the authorities can be trusted, because they are law-abiding. Why the hell should communities supply information to people who may use it to torture people? Why should they collectively stick to the path of lawful, peaceful action when the state doesn't? These arguments apply at the national level, obviously, but they also increasingly apply at the global level, with a world of interconnected communications.

[hebisner]

If people are seriously arguing that adhering to the rule of law in regards to the interrogation and incarcration of terrorist suspects does not prevent terrorism, they are correct. What they fail to recognize is that not adhering to the rule of law in those areas doesn't either. That's why groups like Al Queda use these tactics.

The question then becomes, what is the appropriate response? I would argue that the highest priority is not to give anyone who employs terror what they want. It seems credible to argue that we gave them quite a bit of what they wanted. Particularly in severely undermining our credibility in the Muslim world where Al Queda wants to recruit and advance it's agenda.
The other point I want to make is that the tactics employed by the Administration that violate the Geneva Convention do not work to defeat groups or movements that employ terror. The examples are legion of powerful militaries failing to end terror campaigns using brutality.

[russell]

lawful society can only occur where it is protected from unlawful society

I think this is incorrect.

Lawful society can only occur when different actors (people, nations) agree to live by its constraints. Absent that mutual consent, you do not have lawful society.

A participant in a lawful society that withdraws its consent whenever it faces a threat demonstrates a remarkable lack of commitment. A remarkable lack of spine, one might say.

Everybody lives under some kind of threat, all the time. The level of threat we, here in the US, live under is, by global standards, remarkably small. Even with 9/11 factored in.

India, Spain, the UK, Indonesia, Thailand, France, and any number of other nations have all been subject to acts of jihadi violence. They have not responded, as we have, by abandoning their commitment to their own first principles.

Our adoption of torture, our denial of habeas, our practice of seizing American and foreign nationals and holding them in secret locations around the world to avoid the obligations of our own law, all represent total failures on our part to respect our reason for being as a nation.

It's cowardice, period.

I guess they don't have a good answer for the question I asked.

Start with Geneva and any international arms control agreement you care to name, and follow on from there.

Thanks -

[Rune]

Unfrozen Caveman: ...it would be useful to at least reference the body of law to which you're referring and the specific acts that violate such law.

Fair enough. For starters, take a look at the U.S. Code, which defines torture and provides for penalties (18 U.S.C. 2340-2340) in considerable detail. You don't need to rely on international law alone to find a clear prohibition on the techniques adopted by the Bush/Cheney cabal.

Another "body of law" that applies would be the U.S.-inspired Nuremberg Principles, including a definition of "crimes against peace" that includes "waging a war of aggression" (Principle VI).

Robert Jackson, the chief U.S. prosecutor at Nuremberg, said: "To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

Bush/Cheney apologists always try to dissemble by claiming that the relevant law is ambiguous. It's not.

[Anthony Damiani]

I am surely not the only one who finds it ridiculous, not to mention nauseating, that we are even having a serious discussion on whether or not the rule of law itself is worth preserving?

Surely we have not fallen so far that we cannot agree that tyranny is a bad thing?

[Jesurgislac]

Anthony, I don't consider any of the people who have come in against the rule of law on this thread to be serious disputants. Brett Bellmore is smoking something good, and Ddddave thinks that anywhere the US government doesn't control is wilderness outside the rule of law where the US military operates with force.

Since that includes the whole of the EU and US allies in NATO - citizens of NATO nations have been among the US's kidnap and torture victims - perhaps Dddave is also smokin' something good. But he's certainly not worth taking seriously.

[Rune]

magistra: The US has lost a tremendous amount of moral authority in the world.

True, but it's worth remembering that the erosion of that "moral authority" began four decades ago with the carnage in Vietnam, if not a lot earlier. Various U.S. adventures in regime change tarnished its claims to "moral authority" in the eyes of the world far more than most of us can appreciate. Other examples since World War II include Iran, Chile, the Dominican Republic, Nicaragua, Guatemala and Grenada. The war in Iraq is unique in the sheer scale and audacity of its illegality, but it has deep roots in postwar U.S. policy.

[Phil]

All I've heard is 'if we keep the law then we'll be more admirable and they'll like us better' which ignores the fact that all this stuff happened before we disdained law.

Yeah, we were nothing but kittens and rainbows until 9/12/01.

[Brett Bellmore]

"Brett, there are many quite convincing arguments that the Constitution does not prohibit "gun control." "

Yeah, right: Quite convincing to people whose threshold for "quite convincing" is subject to arbitrary adjustment depending on whether they WANT the argument to be right.

If you can't ever admit the law says something you don't like, then it doesn't matter that you claim you respect the law, you're pledging your loyalty to a mirror for your desires, not something external.

I think the guy who just outright violates the law is more honest, than people who engage in rhetorical gymnastics to pretend it always means what they want.

[Phil]

And since you've already admitted in the past that you privilege your own lawbreaking -- in re: speeding, income tax evasion, etc. -- over that of others, I guess that must just make you a frigging saint, huh, Brett?

I think the guy who just outright violates the law is more honest . . .

Unless, he's, you know, a Mexican.

[Sapient]

Coming to this conversation late, I must say that I don't understand the flow of the discussion. Publius says that "much of the public just doesn’t have an abstract moral commitment to the idea of the 'rule of law,' assuming the actual abuses are removed from their own lives." I agree with this (and am shocked by it). I attribute it to the lack of education so many people have about the principals set out by the founders of the United States. People have somehow divorced the idea of patriotism with the civic ideals the country stands for. It disgusts me for people to claim that they "love their country" while minimizing the importance of the Constitution, the Bill of Rights and the ingenious social contract that formed the basis of this country. What, exactly, do they love about it if not that this is supposed to be a government of laws?

So just when I'm hopeful that the malevolent tyrants are being thrown out of office because the citizens have listened to their better angels, I read some of the comments on this thread still trying to make a case for an outlaw government.

Granted, the last thread I was involved in concerned an individual (Bill Ayers) who, in his youth, had little respect for the law. This lack of respect, I argued, was understandable (not admirable) because it was caused by alienation from the ideals of this country as a result of the massive betrayal by the government of its own principals during the Vietnam War. But that's exactly the problem: once there is an institutional betrayal of trust by the government, the social contract starts to fall apart.

Those who accept thuggery on the grounds that they believe it protects our security are seriously misguided. It undermines the fabric of society. The United States needs to get back to its founding principals, and continue to try to perfect its ideals.

[Brett Bellmore]

"And since you've already admitted in the past that you privilege your own lawbreaking"

Hallucinating again?

My point is basic: Sometimes the law says something you don't like; This is inevitable if you didn't write the law. (You didn't write the Constitution, and it's law.) If you think the law is always on your side, then you're not being honest about what the law is.

Living constitutionalism is the notion that the law is always something you like, no matter what the words say. It is a rejection of the rule of law, it's merely not honest about having rejected it.

[Rune]

Living constitutionalism is the notion that the law is always something you like, no matter what the words say.

Another straw man litters the floor...

And "original intent" presumably means that we strictly apply "what the words say." Unless the words are ambiguous, like "due process" or "Establishment of religion." Then we look for and apply the clear intent of the Founders, making exceptions (as "originalists" like Scalia and Thomas do) when they don't like what they find. To cite one example: what Jefferson and Madison inconveniently wrote about the Establishment Clause of the 1st Amendment.

I think I'm starting to follow this logic...

[Phil]

"And since you've already admitted in the past that you privilege your own lawbreaking"

Hallucinating again?

Not at all. Or have you changed your mind and now believe you should be hounded and prosecuted as vigorously for speeding as illegal immigrants should be for the mere act of being present?

[Brett Bellmore]

No, but I do believe that I should be hounded and prosecuted as vigorously for speeding a little less than everyone around me every bit as much as anybody else in my position should, illegal immigrants included. Let's be clear about this: The reason I've gone 35 years without a speeding ticket is that when I'm going 60 in a 55 zone, everybody is passing me.

I also believe that I should, (And WOULD! They're pretty harsh about it, ironically.) be prosecuted if I sneak into Mexico and take a job illegally.

[Phil]

Ah, I get it. So, the law says that the speed limit is 55 miles per hour, but what you believe is that you may exceed 55 miles per hour as long as everyone else is exceeding your speed. Despite what the law clearly says. So it's your belief, rather than the clear intent and statement of the law, that matters.

Do you ever tire of being revealed as a hypocrite? Clearly not.

[Phil]

I mean, if you're going to come in here and lecture everyone else about how they only care about the rule of law when it suits them, then you'd better be going the precise speed limit (or less) as posted, you'd better be paying the use tax on your Internet and out-of-state purchases, etc.

You're not, and we all know you're not, therefore your attempting to use your alleged superior respect for the rule of law as some kind of cudgel with which to beat Teh Ebil Nasty LIEberals is just so much posturing and nonsense. Save it for someone dumber.

[Brett (the other Brett)]

If you think the law is always on your side. . .

Isn't this the Addington / Yoo theory of executive power? Living constitutionalists can't hold a candle to those guys!

[Doctor Science]

Sapient:
Publius says that "much of the public just doesn’t have an abstract moral commitment to the idea of the 'rule of law,' assuming the actual abuses are removed from their own lives." I agree with this (and am shocked by it). I attribute it to the lack of education so many people have about the principals set out by the founders of the United States.

I disagree. I think the evidence suggests that most Americans have always tended to want the rule of law only "inside the fence", they've mostly differed on where the fence is. For example, for most of US history black and Native people were outside the fence, so it was only appropriate for authority to treat them lawlessly -- that's what makes people inside the fence feel safe.

For most Americans, 9/11 was a horrible shock because it broke the fence. For people like Stuttering Dave, the appropriate response is to rebuild the fence stronger, put more people outside it, and for authority to be more ruthless and vigilant about patrolling it.

For me, it's to say -- that fence is an illusion and always was. The only way not to need it is to act as though everyone is already inside it, as though there is only Us, no Them.

[John Spragge]

Having a disagreement about what the law says does not constitute lawlessness. Not even close, indeed hardly in the same universe. Without the ability to discuss exactly what the law says, and what it means, and therefore how we ought to apply it in a given situation, we could not have a rule of law. You have to distinguish between three separate statements:

1) The law says X, but it also implies Y and I think in this case it means Y,

2) The law says X but also gives me the authority to overrule it in this situation,

3) The law says X but I have the power to break it.

Advocates of gun control say the first. The actions of the administration their critics refer to reflect a belief in either the second statement or an assertion of the third.

[Anthony Damiani]

Brett, you're failing to distinguish between the law (which is comprised of painfully detailed specifics) and the constitution, which is a statement of principles. The precise application and interpretation of these principles is by its very nature subject to change over time.

There is nothing in the original intent of the 14th amendment that would lead to Loving v. Virginia-- but that case is a meaningful application of its principle. So, yeah, I'll defend the living-document interpretation of the Constitution. But that's not what this conversation is actually about.

[Sapient]

Doctor Science, what an elegant statement - I agree. Still, I think that a deeper appreciation of history would strengthen people's faith in the law's potential as a means to maintain peace and security.

[Dixie Burkhart]

We have many reasons to be ruled by law. In my personal experience with Iowa Court System that abuse of judicial discretion, ruling by opinion and being influenced by the executive branch in my case, completely violated my right to even have a fair trial.This being the case we are a lawless nation as the laws are disregarded.

Dixie Burkhart
Facts Don't Matter
www.eloquentbooks.com/FactsDon'tMatter.htm