Government of Laws and Not of Men

Now that the unprecedented lawlessness of the Bush administration is history, we have an equally unprecedented opportunity to reaffirm the foundation of American democracy: the rule of law.

Restoring the rule of law is as urgent as restoring the economy. The problems are closely related and best addressed together.

We should begin with the arrest and fair trial of citizen George W. Bush.

In 1947 U.S. Supreme Court Justice Felix Frankfurter wrote: “In a democracy, power implies responsibility. The greater the power that defies law, the less tolerant can this Court be of defiance” (concurring opinion in UNITED STATES V. UNITED MINE WORKERS, 330 U. S. 258).

Two years earlier, seeking to bring high-ranking Nazis to justice at Nuremberg, U.S. Supreme Court Justice Robert Jackson said: “The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes.”

In 2000, during his first campaign for President, George W. Bush said “I’m running for President because I want to help usher in the responsibility era, where people understand they are responsible for the choice they make and are held accountable for their actions.”

Now a private citizen, George W. Bush has much to be held accountable for as President. During his “responsibility era” he and several other of the most powerful Americans accumulated a list of serious and far-reaching criminal offenses.

Despite his oath to “preserve, protect and defend” the U.S. Constitution, President Bush and his administration used the fear and anxiety generated by 9/11 to justify torture, kidnapping (extraordinary rendition), and illegal surveillance and wiretapping.

These offenses flowed from the original crime of aggression-the waging of unprovoked war.

Aggression is, in the words of the judgment at Nuremberg, the “supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

A measure of the enormity of this crime is that five of the eight high-placed Germans convicted of aggression at Nuremberg received death sentences.

U.S. aggression in Iraq violated both the Nuremberg Charter and the United Nations Charter (Article 2, Sec. 4 and Article 39) as well as U.N. Security Council Resolution #1441.

Both charters were established by treaties signed and ratified by the U.S. This means the invasion of Iraq also violated the U.S. Constitution (Article VI, Clause 2: the “Supremacy Clause”).

The scale of open contempt for the rule of law in the Bush administration was historic. It was a sustained assault on the vision of John Adams and the Founders: “a government of laws and not of men”.

In his campaign for President, Barack Obama recognized this as he pledged to restore the rule of law. Indeed, judging from some of the new president’s first orders, such as his order to close the military prison at Guantanamo Bay, the future holds promise.

At this point, however, we have little more than the word of the new president that he will continue to show more respect for the law than his predecessor.

We need more. The foundation of our democracy should not rest upon the intentions, honorable as they may be, of one man.

We can’t just forgive, forget and hope a bipartisan spirit of unity under a new President will bring a brighter future.

The government of laws and not of men requires a comprehensive restoration. We must repair the Bush administration’s legal vandalism and ensure that we fulfil our obligation to deliver intact to the next generation the precious and fragile treasure entrusted to us by Adams and the other architects of the Constitution.

It is precisely the magnitude of Bush administration criminality that provides the unparalleled opportunity to do this. Justice and the rule of law demand of us now that we enforce the law.

Justice demands as well that we reverse the Abu Ghraib approach and begin at the very top where policy was formed.

At Nuremberg, Justice Jackson said: “The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.”

Harry Truman said of the President’s desk: “The buck stops here.” He was right.

The arrest of an ex-President would be a dramatically convincing way to give new life to the vision of the rule of law shared by Adams, Justice Frankfurter, Justice Jackson and generations of less conspicuous Americans whose love for their country was and is rooted in wholehearted devotion to this bedrock American principle.

Reluctance to Prosecute

Unfortunately, as compelling and as essential as this principle is, and as clear as Bush administration lawlessness seems, there is widespread reluctance to prosecute.

Many who agree that criminal behavior in the Bush administration went to the very top nonetheless feel that prosecuting powerful lawbreakers would be a divisive and impractical drain of resources at a time when an economy in freefall demands national unity as well as unprecedented amounts of time, energy and treasure.

From this perspective, the economy is a separate issue. It comes first.

In addition the tradition of prosecution of powerful American outlaws is weak. When the crimes are related to war it is virtually nonexistent. Because of this the idea of actually arresting someone as powerful as George W. Bush or Dick Cheney for war crimes is, in many circles, a non-starter.

Unfortunately in a nation founded on the rule of law there seems to be a category of people who are above the law.

There is no question a failing economy poses an immediate threat which cannot be ignored. But the threat to the republic posed by lawlessness among the powerful is at least equally grave.

Justice Frankfurter said: “…from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised.”

What could be more fundamental to the survival and maintenance of democracy than the preservation of the rule of law?

The decay of the rule of law and the disintegration of the economy can be seen as two sides of the same coin: failed leadership grounded in a culture of irresponsible abuse of wealth, power and the public trust, nurtured by our own failure to insist on accountability.

In that light the best chance of turning this culture around lies in a comprehensive approach that addresses both issues concurrently.

And whatever the costs of criminal trials in dollars, they are unlikely to approach the nearly unimaginable sums we have been throwing at war and at bailouts.

We now have a chance to unequivocally affirm a government of laws and not of men. Rather than shrink from it we should embrace it.

Neither should we tentatively peck around the edges with suggestions of non-punitive truth commissions, etc.

If timidity and apathy prevent us from defending our way of life we will effectively show that the Bush administration’s contempt for the rule of law is mirrored by our own.

In his campaign, Barack Obama called for an end to the politics of fear. Americans overwhelmingly took to heart this rejection of the disgraceful, shameless manipulation of fear that enabled the criminals in the Bush administration.

Likewise we should neither fear nor hesitate to challenge and to bring these people to justice. As powerful as they may still be, they are no more nor less than fellow citizens with whom we share exactly the same legal rights and responsibilities.

In 1776, a few months before the Declaration of Independence, John Adams wrote to Continental Congressman George Wythe of Virginia: “Fear is the foundation of most governments; but it is so sordid and brutal a passion, and renders men in whose breasts it predominates so stupid and miserable, that Americans will not be likely to approve of any political institution which is founded on it.”

Was Adams right?

Adams ended his letter to Wythe with thoughts of future generations: “You and I, my dear friend, have been sent into life at a time when the greatest lawgivers of antiquity would have wished to live. How few of the human race have ever enjoyed an opportunity of making an election of government, more than of air, soil, or climate, for themselves or their children!”

In a democracy, the people get the government they deserve. One way or another, we will get the one we deserve. But our children deserve at least as good a government as the one we inherited.

At this moment we have the opportunity to help make sure they get it.

Now is the time to arrest and give a fair trial to every Bush administration lawbreaker.

Peter Dyer is a freelance journalist. He and his wife moved to New Zealand from the US in 2004. They are dual NZ/US citizens.

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