Last Rites for The Rule of Law

Posted By Elgin Hushbeck

Reading through Donald Rumsfeld’ recent memoir, Known and Unknown, only heighten my concern for the increasing problems of the growing breakdown of the Rule of Law, but not the ones  Rumsfeld’s critics might think.  The common myth is that the Bush administration ignored the law and instead, went it alone in cowboy fashion. Nothing could be further from the truth.  While I knew the left’s view of the Bush administration was false, the amount of detail Rumsfeld provides on the administrations attempts to follow the law was impressive.

On the one hand this shows that the vast majority of the criticisms leveled against the Bush administration were purely political.  Nothing shows this more than the fact that while Obama is basically continuing to follow virtually all of the contentious policies of his predecessor,  e.g.  the Guantánamo Bay  detention camp is still open,  the criticism have virtually disappeared.

I have no problem with those who had and continue to have substantive objections to the war and to these policies, and I have friends and family in this category.  I have a lot of problem with those such as Senator Dick Durbin, who compared our troops with Nazis, to score a cheap political points, or for the legion of Democratic politicians whose very vocal objections vanished once Bush had finished his term.  It is interesting to note that these objections were not automatically picked up by Republicans.  It would seem they are much less willing to score political points at the expense of the men and woman serving in harm’s way.

Yet while reading Rumsfeld’s book, another more subtle problem emerged.  It was not that the Bush administration ignored the law, quite the opposite.  Rather, it was that the law was constantly shifting under their feet.  The Bush administration made policy decisions based on serious analysis of long standing legal doctrines and precedents.   Yet, as is so often the case with the Left, many opponents did not see the law as something to be followed, but as a tool to use against their opponents.

For example, the claim that people captured on the battlefield can be held by the military without access to the courts has a very long tradition.  In fact, during WWII the US government held hundreds of thousands of those captured without any trial or legal review.    The Idea that those caught fighting out of uniform could be put on trial before a military court and if found guilty executed was not only taken for granted, but confirmed by a Supreme Court decision.  Nor were the reasons for this arbitrary.

One of the goals of the Geneva Convention is to protect civilians and therefore many of its rules encourage a sharp distinction between soldier and civilian.   This is what is behind the distinction between the treatment of POWs, i.e., those whom, among other things, were caught fighting wearing a uniform, and those who were caught fighting out of uniform, as the latter could be easily confused as civilians.

Yet despite what the law and precedent had been, these were overturned in order to reach a political goal of opposing the Bush administration.  What the law actually said, such as the requirement to be in uniform, no longer mattered.   What the legal precedents were, such as in the Supreme Court’s 1942 ruling on the German saboteurs, no longer matter.  The only thing that matters is what the current majority of the court says, and that is only good until the court changes its mind.

The Bush administration spent a lot of time trying to ensure that they were well within the law, and they were.  But then the Court changed the law.  I am sure it left some wondering after all the effort to follow the law only to have it changed, why did they bother.  Unfortunately it is become an increasingly relevant, if dangerous, question.

Now we see the current administration ignoring the courts in some areas and in at least one case simply making their own ‘rulings’ on the constitutionality of laws, in essence picking and choosing which laws they want to enforce.    This is not too surprising for whenever the Rule of Law breaks down it is always replaced by a different rule:  whatever you think you can get away with.

Feb 28th, 2011

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