The Rule of Law

Publius at Obsidian Wings write on Jane Mayer’s The Dark Side, a look at how the Bush Administration handled the post-9/11 period. It’s important, because not only was an abstract moral principle involved — it’s good to follow the rule of law, rather than willy-nilly do things and the law be damned — but in that it points out practical consequences to the rule of law’s being discarded for the sake of convenience and urgency.

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.

Well, at least it all made us more secure, right? I mean, if you’re going to toss out law and treaty in favor of expediency and security, it’s because of the predictably positive outcome, correct?

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).

So, why then, do we have a rule of law? Is it because we should, or can we point to actual reasons and benefits? 

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.

[…] 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.

The law is not there as some codification of perfection — though it does express a tension balance between traditions that have worked and current beliefs about what’s important. Instead, the purpose of the law is to restrain us — you, me, each other, day by day and in times of emergency.  The law combats convenience and urgency alike — “Gosh, I wish I had that diamond broach” and “Boy, someone really needs to unload a world of hurt on those guys.” Or, as one of the commenters on the post put it: “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’s ironic that an administration that touted itself for being a voice of conservatism was so quick to toss the law aside, even if you grant them the most beneficent of motives. And it will take decades for the consequences to be dealt with.