Whither the Rule of Law?Whither the Rule of Law?
December 11th, 2007 by Sherrilyn Ifill
Much as I want to play “worst movie ever “ — and I will — I’ve got to take a moment to deal with the unfolding wave of lawlessness, mendacity, and war crimes that have hit the news lately. So we finally know why “impeachment [was] off the table” to House Majority leader Nancy Pelosi and the Democratic leadership. Turns out that at least 4 top Dems were shown videotapes of CIA agents torturing alleged terrorist detainees several years ago. The video reportedly included an episode of waterboarding. The sentiment in the room where the top members of the House and Senate Intelligence Committees were being briefed with the videotape was not one of revulsion, according to published reports. http://www.washingtonpost.com/wp-dyn/content/article/2007/12/08/AR2007120801664.html?referrer=emailarticle. The vibe was more like “are you sure that you’re being harsh enough?” Now come to find out that the CIA destroyed those tapes, after arguing in court that no evidence of these interrogations existed.
As a lawyer, the last 7 years of the Bush administration have unraveled everything I learned about the rule of law and its fundamental role in a democratic nation. From one day to the next my mind has been blown by the licenses taken by the powerful, and by the timidity of those of us who’ve watched in disbelief and silence, as our nation has increasingly become a nation of men, rather than one of laws. The most basic rudiments of law and procedure have been routinely rejected or debased by this Administration. And the Democrats, by and large, with the notable and consistent exception of Senators Patrick Leahy, Russ Feingold and Dennis Kucinich, and Rep. John Conyers, have been unwilling to check this dangerous slide into lawlessness. I watch Judiciary Committee hearings on C-Span just to see Russ Feingold remind Administration witnesses and even his Senate colleagues that there is such a thing as the rule of law. I remember one hearing last year when the Administration agreed to let Attorney General Gonzales testify so long as he was not sworn and under oath. Feingold objected. Then-Judiciary Committee Chair Arlen Specter insisted that it was a courtesy he wished to extend to the Attorney General. Feingold asked for a vote on whether the AG should be sworn. The Committee voted along party lines (the GOP was in the majority), but lots of Republican committee members weren’t present. So Specter said, “Well I have their proxies, so the witness will testify without the oath.” Feingold said “hold up my brother. Let me see the proxies.” Specter was ashen. He pulled a Ralph Kramden (hummmana, hummmana, hummana). Clearly he did not have the proxies. He huffed and puffed that it was in poor form for Feingold to not simply take his word for it. It was a thing of beauty. Gonzales testified without the oath. But Feingold had made his point. And this was before the U.S. Attorney firings scandal broke.
This kind of chicanery – witnesses testifying, but not under oath — is vintage Bush Administration. It flouts one of the most basic underpinnings of the legal system. Sworn testimony is designed to produce truthful testimony. The witness tells the truth because they face the possibility of punishment for lying to the court. Moreover, swearing or affirming to tell the truth imparts the gravity involved in bearing witness — providing evidence or testimony in a tribunal where the rights of, and harm to, parties may be determined. But at its core, the requirement of sworn testimony is a reflection of respect for the authority of the tribunal, and for the rule of law. This Administration routinely demonstrates its contempt for legal tribunals and for the rule of law. Remember when the President first refused to appear before the 9-11 Commission, the body organized to investigate the most devastating incident of terrorism in U.S. history? Then it got even crazier. Bush agreed to appear, but only if he could bring his new best friend Dick Cheney, and only if he wasn’t under oath and there was no transcript. That Bush proposed it was crazy enough. That the Commission, and the many seasoned lawyers that worked on staff accepted it was just mind-bending.
Perversions of everything we were taught in law school have continued apace since then. Underlings in the Justice Department claiming executive privilege. Contractors engaged in military operations unbound by the laws of any nation. International law flouted as “quaint.” Laws signed by the President, with a caveat that it only means what the President thinks it means. Detainees held for years in captivity without due process provided with lawyers only on the eve of Supreme Court review of their cases. Government prosecutors fired for not targeting members of the opposing political party with indictments based on flimsy charges. An attorney general nominee who can’t tell us straight if waterboarding is torture. Even now the President’s former counsel Harriet Miers is in defiance of a congressional subpoena ordering her to testify before the Judiciary Committee. And of course the Nixon-era mainstay of this Administration has been, “it can’t be legal if the President did it.” How, I ask, is impeachment “off the table?” All this makes me long for the days when our President’s most despicable legal maneuvering consisted of parsing what the meaning of “is” is.
Seriously, America is in deep doo-doo, as one of our former presidents might have put it. The rule of law is in it even deeper. The leadership of the political parties cannot be counted on to check each other – even against the most outrageous abuses of law. Senator Joe Biden is right. We’ve got to have a special prosecutor to investigate the CIA tape destruction matter. We need a special prosecutor, like yesterday. When Sen. Jay Rockefeller, the chair of the Intelligence Committee says that we don’t need one – that the Senate can get to the bottom of the tape destruction matter themselves – I don’t believe him. He was one of the Democratic Senators who was “briefed” with the tape years ago. I know for sure that he should not be leading the Committee’s inquiry into the tapes’ destruction.
More importantly, we cannot wait until next year’s election in the hopes that a better president will end this long lawless nightmare. Even if we elect a president in ’08 who respects the rule of law, the systematic abuse of the rule of law by this Administration sits around “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need. Every repetition [will] imbed[ it] . . . more deeply in our law and thinking and expand it to new purposes.” In case you’re wondering where that quote is from – it’s from Justice Jackson‘s dissent in Korematsu v. United States, the 1944 case in which the Supreme Court upheld the detention of Japanese-American citizens on the grounds of “military necessary.” It’s a decision, which despite being repudiated almost universally by the legal community, has never been overturned.
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