Rule of law revisited

When the NY Times reported a few weeks ago that the CIA had destroyed tapes of its operatives using “severe interrogation techniques” even conservative bloggers thought the destruction “looked a lot more like destroying evidence than tightening security.” As James Joyner puts it:

“Both the 9/11 Commission and attorneys for Zacarias Moussaoui had specifically requested any such evidence and Agency officials had previously denied, under oath, that any such tapes ever existed…People have gone to jail for obstruction of justice for actions much, much less brazen than this.”

Kudos to those who follow the law, but they appear to be in a minority. ThinkProgress reports that a wide range of Republicans think that those who destroyed the tapes deserve a medal for doing it, including Linda Chavez, Bush’s nominee for labor secretary and Tony Blankley, Newt Gingrich’s former press secretary.

Twenty years ago conservatives were trading arms for hostages and defending it as a noble deed. These days they bragging about outing covert agents, commuting sentences of perjurers, arguing that enforcing laws is optional for president’s who issues a “signing statements”, and of course, arguing that habeaus corpus is for wimps. Their contempt for the rule of law is complete—unless it happens to be a prominent member of the other party accused of law breaking—-say, Bill Clinton, circa 1998. Here’s Henry Hyde leading the impeachment trial:

“The rule of law is one of the great achievements of our civilization. For the alternative to the rule of law is the rule of raw power. We here today are the heirs of three thousand years of history in which humanity slowly, painfully and at great cost, evolved a form of politics in which law, not brute force, is the arbiter of our public destinies.

We are the heirs of the Ten Commandments and the Mosaic law: a moral code for a free people who, having been liberated from bondage, saw in law a means to avoid falling back into the habit of slaves.

We are the heirs of Roman law: the first legal system by which peoples of different cultures, languages, races, and religions came to live together in a form of political community.

We are the heirs of the Magna Carta, by which the freeman of England began to break the arbitrary and unchecked power of royal absolutism.

We are the heirs of a long tradition of parliamentary development, in which the rule of law gradually came to replace royal prerogative as the means for governing a society of free men and women.

We are the heirs of 1776, and of an epic moment in human affairs when the Founders of this Republic pledged their lives, fortunes and sacred honor – sacred honor – to the defense of the rule of law.

We are the heirs of a tragic civil war, which vindicated the rule of law over the appetites of some for owning others.

We are the heirs of the 20th century’s great struggles against totalitarianism, in which the rule of law was defended at immense cost against the worst tyrannies in human history. The “rule of law” is no pious aspiration from a civics textbook. The rule of law is what stands between all of us and the arbitrary exercise of power by the state.

And so forth.

In other words the rule of law is critically important for other people to follow. Which means there is no rule of law.


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