Losing the Rule of Law, Memorandum by Memorandum

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Losing the Rule of Law, Memorandum by Memorandum

Published in the Daily Record December 3, 2015

It was disheartening, in a deep-down, bone-wearying sort of way, to read the recent report in the New York Times of how four top federal lawyers drafted secret memoranda of law to the President to justify the 2011 raid that killed Osama bin Laden and culminated with his corpse being spirited away so that no one could ever honor his burial-place. These memos told the President he could order a number of violations of what most people had understood to be the law. He could invade Pakistan, execute someone wanted for violations of U.S. law without benefit of trial, fail to consult Congress in advance, and sink the body of an enemy combatant at sea. The Attorney General was kept in the dark about any of these memos until the day before the raid; even the notorious Office of Legal Counsel was not told. And if the raid failed, the plan was, if possible, to lie and deny that the raid had occurred.

Doing It Bush-Style

This kind of secret legal memorandum, justifying enormous violations of things like the Bill of Rights, the Geneva Conventions, international law, and Congressional controls on presidential war-making powers, was a staple of the George W. Bush administration, as this column has chronicled over the years. Now we find, with little surprise, that it has gone right on in President Obama’s time. The Obama memos have not been published, so one cannot be certain, but it is a safe bet that these memos used the same basic technique as the old Bush ones: when the law in one category doesn’t work, shift paradigms, especially moving back and forth between the paradigm of criminal procedure and that of the law of war.

All of this was fundamentally at odds with what lawyers, especially government lawyers, were supposed to be doing: determining, publicly and accountably, how to follow the law. They were not supposed to be planning how to break the law, secretly, under cover of lies.

Symmetrical On Asymmetry

This perversion was, however, a natural temptation in an age of asymmetrical warfare, the only kind of warfare bin Laden waged, despite all those videos we saw of al Quaeda camps training recruits in the use of military weapons and tactics. The essential al Quaeda technique, perfectly displayed on 9/11, was to infiltrate civil society as civilians and commit atrocities from within, essentially as criminals, not as armies, mostly attacking civilian society, not the armies and governments that protected it.

The freedoms the law of war permits nations in wartime were granted because of the nature of armies and the paramount importance of governments. But when the target is mostly the spirit and the ideals and the morale of one’s country rather than its army or government, are the freedoms of the law of war equally appropriate?

To those who wrote the Bush/Cheney/Rumsfeld-era memos, the answer was yes. And apparently now, that is the case for the Obama lawyers as well. The basic impulse is pardonable. When the enemy does not respect the civilian/military divide, it is natural to follow suit in self-defense.

Yet it is a terrible thing to follow our enemies’ example in this way. It has been argued in this column as well as many other places that the dichotomy in our laws between civilian and military spheres is vital to the country’s rule of law. Under Bush and Cheney and Rumsfeld, we saw what ignoring that dichotomy led to: torture, gulags of black sites nearly impervious to due process, violations of territorial sovereignty of allies, warrantless arrests and renditions, degradation of the law of war. And it culminated in gratuitous and destabilizing warfare that squandered American lives and money, warfare which would never have been waged had we not, with the advice and blessing of lawyers, found ways around our Constitution and laws, had we gone on treating civilian matters as civilian matters, and adhering to the law of war in military ones.

None of this is to ignore or to minimize 9/11. It was that event, above all, that led the lawyers to make their recommendations – and our country to follow them. Nor am I making light of the threat bin Laden posed. But there are cautionary examples, from the Roman Empire to the West Bank, showing what happens when threats drive nations into what would have once been thought morally and legally unacceptable places. The poison tends to stick around long after the reasons we first started taking it have gone.

And now (this is written just after the Paris attacks) the dismal scenario seems to be happening again. Today’s signature threat, ISIS, is a new twist, a foe that simultaneously employs both armies and criminals to wage both conventional and asymmetrical war. But the new twist will likely only intensify the impulse to blur and blend the rules by which our society responds to warfare and those by which it responds to crime.

Not to Make It Easy

In such a climate, our duty as lawyers, in and out of government, is not to make it easy for our leaders to give in to that impulse. Changing times always require changing laws, that is true, and changing threats do require changing responses. But most of the time the tried and true ways are the best. Our country has done very well when the old rules have been followed: when wars were declared, not covertly and illegally undertaken; when murderers were arrested, not assassinated from the skies; when criminals were imprisoned and fairly tried, not secluded in an island prison or an unacknowledged black site; when personal privacy was fostered and not subverted by the government; when the Geneva Conventions actually guided our actions, and prisoners of war were treated humanely; when we respected the boundaries of other nations. The more we allow ourselves to stray from those norms, the less we shall even know who we are.

It will always be possible for lawyers to find a reason that the rules do not apply in whatever situation we face at the moment. Every circumstance is distinguishable from others, and the thicket of laws is so thick, we lawyers can always venture into it and come back brandishing some legal principle to justify whatever our leaders want to do. But if we lawyers justify our leaders into losing their way, we shall have failed in our most important responsibility.

Unfortunately al Quaeda and ISIS and their ilk have shown they can kill a lot of people, which is bad enough. It would be a greater tragedy, however, if they killed the rule of law. If there truly is such a thing as American exceptionalism, the rule of law is at the very heart of it. Make a hollow mockery of that rule, and America will with utter inevitability become just another country. More than anyone else, it’s up to the lawyers to prevent that from happening.

Copyright (c) Jack L. B. Gohn

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