Tuesday, August 28, 2007

Good Riddance

I'm not a religious man, but Thank God.

For whatever reason, the flouting of the rule of law has become a real issue for me, such that I was considering not voting for any candidates in the last election because they all supported some legislation stripping FISA of any oversight power. That, combined with the frankly disgraceful search to find some kind of legal justification for the conduct at Guantanamo, black sites, and Abu Ghraib, makes me really glad to see the major architects of these policies kicked out.

They serve the law. You forget that, and you forget the idea
of justice.
Now there was an interesting discussion on Gonzales' resignation yesterday on the NewsHour. However, what really got to me was the comments of a conservative legal theorist - and the general lack of remorse by anyone within the administration or its supporters about Gonzales' blatantly inappropriate actions. The commentator was arguing that Gonzales should be supported for really reorienting the Justice Department on an "anti-terrorism" footing and essentially blaming the Democrats for dragging Gonzales' name through the mud.

This misses several things:
  1. You don't want your Justice Department to be on an anti-terrorism footing. That's for the military to handle. It involves pre-emption. It involves lack of evidence. It is not a judicial process: it's a mode of war. And while investigation into terrorist cells is necessary, the procedures to do that should be kept under the rule of law for fear of damaging civil liberties. After all, what will you do in the absence of these protections? Offer reparations to victims of government abuse? There have been no reports of that happening. Provide apologies? From this administration? And that is the exact problem. The role of war is political: it seeks political ends for political purposes. The role of law is social and systemic. It is meant to be above politics and provide a framework for participation. Once you start confusing that, as Gonzales, Yoo, and others have done, you've completely missed the point of the law.
  2. Many Republicans were calling for Gonzales to step down, and many Republican appointees were contradicting Gonzales' statements.
  3. The anti-terrorism bit, even if valid, wouldn't apply to the firing of U.S. Attorneys. What does that have to do with anti-terrorism? If the firing offenses weren't conduct or performance-related, then what was the issue? Anti-terrorism doesn't cover this scandal, and no one should feel any sympathy for Gonzales screwing himself over in his testimony.

This all goes to the separation of the political and the legal. Gonzales and all the "loyal Bushies" (Goodling, etc.) made the mistake of thinking they serve the President. They don't. They serve at the pleasure of the President. But they serve the law. You forget that, and you forget the idea of justice.


HoBs said...


Let me ask you this. Do you jaywalk? Do you speed?

You are conflating law and justice. There are lots of dumb laws out there, law is not and should not be absolute.

Andrew Jackson is praised for openly defying the supreme court. Did anyone cry out in moral outrage when you learned that Lincoln suspended Habeaus Corpus? FDR is widely recognized as being one of the greatest presidents despite the interment of thousands of Japanese civilians based on far less than those in Guantanomo. Not sure about the legality of the Bay of Pigs, but JFK is still lionized. Clinton had his own problems with the legal system.

It irks me that the outraged talking heads on tv all have no sense of history.

hcduvall said...

Yes on all those counts, actually, and you know that. And they were the leaders, not the good soldiers, of their administrations, their achievements were more than their flaws, even visible and contentious in their day. (Well, maybe not Jackson in the same arena), but while the expansion of executive powers may be one of those seismic changes in American character that we come to accept, Gonzales doesn't have any other pegs to hang his coattails on. But we'll hash this out in twenty+ years where the actual sense of history counts, no?

Chengora said...

Interesting points, but I think you're mistaken. Individual laws are always going to be somewhat problematic. But I wasn't defending that. I was defending the rule of law, which is a bit different. Any legal system is going to have its flaws. But do you have the mechanisms in place to change the system given enough pressure? Is that system reasonably free from political pressure? Those are the critical issues, and it's for those reasons that I definitely do not think that FDR or Lincoln's actions are praiseworthy. This isn't to say that they didn't do extremely morally justified actions also, just that the points you mention are more than blemishes on their record.

The problem is not that some laws are bad. In my line of work, we often talk about how the "rule by law" is trumping the rule of law. The latter is a different matter, and one in which excessive partisanship and politicization of the legal channels of government threaten. That's exactly the issue with Gonzales. He is supposed to serve the law, not the President. When you start serving the President through the law, you've lost the sense of justice, of every person getting an equal shot at a morally justified outcome. The highest eschelons of power will always try to manipulate the law, but that is precisely the problem. A sense of history does not excuse the conduct of Presidents in subverting the rule of law, and even less so when someone like Gonzales comes in and tries to recast politicization of the law as justifiable conduct.

HoBs said...

ok, those weren't the best examples. but presidents in the past have been praised for flouting the law. Thomas Jefferson's purhcase of Louisiana was widely believed to be unconstitutional. Clinton's invasion of Bosnia was without UN approval. As was Clinton's bombing of Iraq and Afghanistan.

In D&D terms, there is this nice D&D adventure you can find online called Sepulchrave that deals with the inherent philosophical conflict of Lawful Good. As Law and Good are not necessarily the same.

The US has propped up many dictators in the past, which people don't like, but most people today, seem to wish we propped up Sadaam Husein.