Posts Of The Year: A Question Of The Rule Of Law, April 30, 2009

(To my mind, the most significant meaning of the election of Obama was a return to the constitutional order. Leaving behind a radical and neo-fascist concept of the presidency that assumed wartime powers indefinitely over not just foreign enemies, but over American citizens, and vesting that authority not in an emergency, to be ended, but in a permanent extra-legal executive branch, accountable only to its own theories of executive power, was Cheney's profound attack on the Western way of life.

The Dish has never questioned the legitimate role of the executive in responding to imminent threats without Congressional assent, or even temporary powers in the face of genuine emergencies (and 9/11 was one such event). But the attempt to make such powers permanent, to grant the president an inherent right to seize, detain and torture anyone the executive branch alone deemed an "enemy combatant" was one of the gravest attacks on the American constitution in history. The war crimes perpetrated by these goons, and their criminal lawyers, remain unpunished. Worse, Cheney and his fellow war criminals now posture as if they are the true guardians of US security, despite the fact that they presided over the worst national security failure of any American administration in history, launched two wars they failed to win in eight years, and forever removed the moral high ground that the United States had long maintained with respect to treatment of prisoners in wartime.)


Clive Crook defends himself:

The earlier cases do not prove that waterboarding as practised during the Bush administration was illegal, only that waterboarding carried out in certain ways and under certain circumstances has been successfully prosecuted. The designers of the policy knew the law and manoeuvred--absurdly and offensively, perhaps, but they would not be the first lawyers to stoop to that--to stay within it.

I have to say I find this defense unpersuasive and a little beside the point, to put it mildly. The entire spirit of the UN Convention and the Geneva Conventions is not to see whether governments can find clever, legal loopholes in the ban on torture, abuse, inhuman treatment and outrages on human dignity - but to see that no government ever comes near the kind of prisoner abuse and torture that we have seen throughout history. I cannot begin to believe that those who drafted both conventions believed that waterboarding, for example, was okay if it is done in certain ways and not others. And to even countenance such a sophistry is to have capitulated to the logic that the executive - empowered with massive force and enormous secrecy - should always get the benefit of the doubt when applying the rule of law.

The lawyers we are talking about, after all, are lawyers for the president, whose oath of office demands that he faithfully execute the laws. These lawyers are not there to help him circumvent or break the law, but to ensure that it's followed. They violated that core responsibility and the sheer shoddiness of their work reveals that they knew it.

The premise of Clive's argument, in other words, is that it's perfectly legitimate for a president to treat the law as something to be defined away rather than followed. And it shows how successful a bully Dick Cheney is. He has managed - even with a very shrewd journalist like Clive - to shift the terms of the debate from why on earth is any of this happening? to how can we let these people off the hook?

There is and was a legal and constitutional way to tackle the terrible crisis Bush faced after 9/11.

If the president believed that following the law at that point would lead to the imminent deaths of thousands of people, then his constitutional responsibility was either to urge the Congress to repeal the Geneva Conventions and UN Convention, or to break the law because this one moment necessitated it  and then present himself for trial. That's the Lincoln model. What Bush did instead was secretly break the law, invoke a constitutional theory that the executive can always break such laws in the furtherance of national security and order his lawyers to provide specious reasons why he had not done so. Then he lied about it repeatedly in public. Then when photographs from Abu Ghraib showed in graphic detail the horrifying reality of much milder techniques than the ones he had explicitly authorized, he blamed low-level soldiers and allowed them to take the fall. Then, over a year after Abu Ghraib and four years after 9/11, he set up an elaborate, ongoing program to torture prisoners, replete with lawyers, doctors, professional torturers, and psychologists. Then, when the International Committee of the Red Cross gave him a report detailing what it described as unequivocal torture, he shelved it, further violating his core responsibility to enforce the law.

This is an ongoing, premeditated conspiracy to systematically break the law and violate treaty obligations.

I guess you could find all sorts of ways to say that this illegal behavior should be ignored because the chief executive has used every sophistry in the book to parse legal statutes against their plain meaning and intent. But why would that be your argument, rather than the simple one that the law be enforced as plainly written, and that a failure to enforce the law when the chief law-breaker is supposed to be the chief law-enforcer is a serious threat to our entire system of government?

I know it's a trauma for a society to have to go through this. I do not relish it. It's already been very very painful. But a society seriously committed to the rule of law will undergo trauma if it has to, especially if it is the only way to get over this. And this is not our collective responsibility. The trauma is entirely the responsibility of those who broke the law, shocked the conscience and tortured defenseless human beings in the name of the American people. They refuse to show remorse, threaten to use their political party to return the torture regime to power when they can, and have threatened to blame any future terror attacks on the return of the US to the rule of law.

This is why Cheney remains a threat to the constitution and the liberties it guarantees.

And that is why he cannot simply be appeased.

(Photo: Saul Loeb/Getty.)