The Law As Quickstep Will Doom Us All

Equality. Isn’t that what America is all about? The rule of law should be the same for all of us. It’s not, and it never has been. But, it is getting worse and worse under the Bush administration. Thanks to Dahlia Lithwick for writing such an excellent article over at Slate called Anybody's Guess.

It's been a banner week for water-boarding. This centuries-old practice of simulated drowning to extract false confessions and false testimony has really benefited of late from a good old legal reassessment and a smoking-hot PR campaign. In the course of a few short years, water-boarding has morphed from torture that unquestionably violates both federal and international law to an indispensable tool in the fight against terror.

We as Americans are doomed if this continues. The threat is not from terrorists, but from our own government. Laws don’t mean anything anymore to the rich and powerful. If you want to you can go ahead and break the law. Then just follow these easy steps:

First, the administration breaks the law in secret. Then it denies breaking the law. Then it admits to the conduct but asserts that settled law is not in fact settled anymore because some lawyer was willing to unsettle it. Then the administration insists that the basis for unsettling the law is secret but that there are now two equally valid sides to the question. And then the administration gets Congress to rewrite the old law by insisting it prevents the president from thwarting terror attacks and warning that terrorists will strike tomorrow unless Congress ratifies the new law. Then it immunizes the law breakers from prosecution.

We are doomed if this attack on the rule of law continues unchecked in the future. Congress bears as much responsibility for this as the Executive branch.

This is not MY America:

Enter the new attorney general, Michael Mukasey, with the promise that he would neither investigate nor prosecute the people who tortured, since they relied on (secret) Justice Department authorization to do so. The second was to establish clearly and unequivocally that the question of whether water-boarding was illegal in 1968, legal in 2002, illegal again in 2006, and perhaps legal again tomorrow will be determined by the president and nobody else. In secret.

No one should be above the law, and that includes the FBI, CIA, and the Executive branch of the government.

We are little scaredy-cats, we are blind and we are doomed:

This is not simply the theory of a unitary executive at work; this isn't the notion that the president makes the law, and acts of Congress are legal elevator music. This vision of executive power is that the law not only emanates from the president but also ebbs and flows with his hunches, hopes, and speculations, on a moment-to-moment basis. What we are hearing now from senior Bush administration officials is that if the president thinks someone looks kinda like a terrorist and the information sought from him seems kinda worth getting, it will be legal to torture him. And it's legal no matter who justified it, regardless of the supporting legal doctrine, because, well, the president just had a feeling that the information would prove valuable.

The first step we should take is to stop calling the situation in Iraq a war. The phrase “The War on Terror” should be abolished. The situation in Iraq is an occupation by U.S. armed forces. If Bush is no longer a “wartime president” he will lose some of his power. We need for that to happen.

I'm sure there's some law professor out there who can make the legal argument that executive power in wartime encompasses even the reckless guesses and impressionistic whims of a single man, as they arise. At which point, that too will become an "open question" on which "reasonable people will differ." And the dance will begin again.

We are doomed as long as this dance continues. Somebody stop the music.