The Rule of Law & Political Power

This past week the Obama administration released Bush administration memos on torture of individuals under U.S. custody. The memos themselves don’t especially change the terms of the conversation, as outcry against the Bush Administration’s activities before and after the release of the memos remains much the same. One significant development is that President Obama has offered assurance that CIA operatives and others acting in good faith based on orders concerning torture would not be tried for war crimes or human rights violations (although this isn't necessarily the final word). The idea is that we should move on, leave past errors behind us, and turn a new page. This idea, however well intentioned, is wrong and unjust. Some good discussions of why can be found here and here.

That’s not to say, however, that those who tortured are evil sadistic monsters. These actions weren’t taken lightly, and they were done with the intention of contributing to the American effort in an ongoing “war on terror”. Joe Klein, even if I don’t agree with him, offers some good points about the importance of clandestine service and the political threats that this memo release and public outcry might pose for future CIA initiatives.

As I see it (and I don’t claim any originality in making this point), the situation is one of the rule of law versus political power. International and national law prohibits torture, making the case pretty straightforward on a legal level. At the same time, there is an argument to be made for political necessity in times of crisis, and it’s reasonable to assert that political authority has a role to play outside of the bounds of law in order to act in a swift or innovative manner given a situation not well-suited to “the rules”. I tend to be rather uncomfortable with these forays into the territory of established legal constraints, but I won’t deny that human creativity and initiative is meant to use the law; the letter doesn’t rule by itself.

My sense, however, is that in America we’re in real danger of tilting overboard away from the rule of law and towards assertion (or capitulation to) the political power du jour. My wife and I have started to watch the first season of 24 (I know, we’re way behind)… for those who aren’t familiar with the show, it’s a real-time counter terrorism suspense story where the hero is constantly bending or breaking the rules in the name of getting the bad guys. There’s a constant sense that those who are attempting to enforce the law are getting in the way of pursuit, and while the typical Hollywood collateral damage is present, it has been amplified by the fact that it is central to the story. The show could have been written by a Bush administration staffer seeking to sway public opinion about the necessity of extraordinary methods against terror. Daniel and I have discussed this previously with regard to just war, and it isn’t an insignificant consideration. Public consciousness about level of threat and the need for extraordinary response remains of prime importance in evaluating what might be considered allowable action by the government.

On a broader note than entertainment culture, one rarely hears a popular level discussion of the legal structure in America without encountering criticisms of 1) activist judges or 2) the unfortunate nature of our litigious society. Whatever the merits of these critiques may be, our society is one where the rule of law has a strictly prescribed role and where public sentiment is not well disposed to its expanded use.

Political power, of course, is also very restrained in America. Libertarian sensibility and a reaction against the abuses of imperial government during the colonial period have made the U.S. into a country that enforces a balance of power within government and an equally important democratic balance of the political power of constituents against their elected officials. It’s worth noting, though, that the democratic impulse is itself a power struggle. Vigilantes and even more ordinary voters hold a sway that is more politically impressive than legally binding. The same goes for the media of left- or right-leaning persuasions, who can have an impressive impact upon the course of society without exercising any concrete jurisdiction in doing so.

American civil action is determined largely by the rule of men rather than the rule of law. That’s not good or bad in itself- people can be just, and laws can be unjust- but it will have implications when a society such as our own encounters torture memos and a past administration guilty of numerous wartime injustices. And this orientation towards political aims rather than legal order will not suddenly disappear with the Obama administration… quite the contrary; Obama is the one that has announced that he will not seek prosecution of past injustices. This sets us up, I’m afraid, for a continued bloating of self-confidence amongst those in clandestine service and a continued privileging of what is perceived as a political necessity despite nominal references on the part of Obama toward his commitment to the rule of law. They ring rather hollow when such commitment is demonstrated by the mere release of the very torture memos that should goad his administration on to prosecution.