The rule of law in America today

Does it exist? Is the United States a Nation of Laws? It is clear that some rules do exist. But do they conform to the spirit and letter of the rule of law doctrine?

Glenn Greenwald thinks not. He recently identified four rules of American justice:

(1) If you are a high-ranking government official who commits war crimes, you will receive full-scale immunity, both civil and criminal, and will have the American President demand that all citizens Look Forward, Not Backward.

(2) If you are a low-ranking member of the military, you will receive relatively trivial punishments in order to protect higher-ranking officials and cast the appearance of accountability.

(3) If you are a victim of American war crimes, you are a non-person with no legal rights or even any entitlement to see the inside of a courtroom.

(4) If you talk publicly about any of these war crimes, you have committed the Gravest Crime — you are guilty of espionage — and will have the full weight of the American criminal justice system come crashing down upon you.

It is thus clear that some Americans are not subject to the rule of law. The rule of law makes sense only when everyone is subject to the same laws. The United States is not a country governed by laws.


Update

David Dayen of FireDogLake walks over some of the same ground as Greenwald:

The Administration has reserved some of its most punitive uses of their prosecutorial discretion for government leakers and whistleblowers. Government information gets leaked all the time, of course, often by official sources doing so on behalf of the Administration for political reasons. But no Administration has prosecuted as many government officials for leaking as this one; in fact, the six criminal cases are more than all other Presidents combined. It has unquestionably had a chilling effect on other whistleblowers. The case against former NSA official Thomas Drake, which thankfully collapsed last year, is the most celebrated of these cases. But the inadequacy of that case has not stopped the Justice Department from continuing to wage war on leakers.

Another case of reactionary hypocrisy

Andrew Levine wrote:

The hypocrisy is staggering. There was hardly a peep of complaint in proto-Tea Party quarters about executive orders — or, worse, signing statements — when George W. Bush abused those practices at historically unprecedented levels. The right’s newfound aversion plainly has more to do with hating Barack Obama (for all the wrong reasons!) than political principles.

Executive Orders and executive Signing Statements are bad. They are attempts by the executive to rule by decree. The problem Levin identified is the reactionary effort to deny this kind of power to a Democratic President while reserving that power for the Republicans.

What’s wrong with this thought?

In a widely read and much discussed article, Elizabeth Drew wrote:

Someday people will look back and wonder, What were they thinking? Why, in the midst of a stalled recovery, with the economy fragile and job creation slowing to a trickle, did the nation’s leaders decide that the thing to do —in order to raise the debt limit, normally a routine matter — was to spend less money, making job creation all the more difficult? Many experts on the economy believe that the President has it backward: that focusing on growth and jobs is more urgent in the near term than cutting the deficit, even if such expenditures require borrowing. But that would go against Obama’s new self-portrait as a fiscally responsible centrist.

First, let us consider the point which Drew got right: America’s political situation is now in such a low state and likely produce a bizarre outcome with respect to the “debt limit” and “budget priorities” conflicts that future Americans — along with others around the world — will find it difficult if not impossible to understand and explain what happened in the summer of 2011. It is telling that a routine matter like increasing the debt limit triggered a budget conflict. This fact strongly suggests that Washington was waiting for the occasion to run wildly into this risky future.

Let us turn to what is wrong with her thinking. Obama is not a fiscally responsible centrist. The broadly construed reasons for making this judgment: He’s not fiscally responsible and he’s not a centrist. How might one reasonably call Obama a fiscally responsible politician when he has already refused to use the 14th Amendment and Coin Seigniorage options to manage the debt limit political problem? With this double refusal Obama has publicly embraced Federal debt default as an acceptable political risk for him and the country he governs. Now, to my mind, befuddled as it is by leftwing thinking, defaulting on the nation’s debts is as obvious a case of fiscal irresponsibility as one could imagine. Promising to do so if pushed is no improvement at all. So, Obama is not a fiscally responsible president.

Furthermore, how might anyone consider Obama a centrist when he has embraced a reactionary political economics? Choosing to throw millions into poverty is always a politically reaction path. And this is the path Obama has put his name on. Perhaps this Democratic President does sit between the far rightists and the moderates and leftists in his own party. But that fact, assuming its veracity for the sake of the argument, only reveals the vacuity of the term, “centrist.” Even though he might be a centrist in this sense of the word, Obama would remain a reactionary in the substantive sense of that word, albeit a reactionary who sits between the farther rightists and the undifferentiated mass sitting to his left. There is little that is tempered, rational, pragmatic and thus moderate about this President’s politics. He fights for the programs he believes to be best.

Drew’s erroneous Obama interpretation may originate in her belief about Obama’s ‘right turn’:

The question arises, aside from Obama’s chronically allowing the Republicans to define the agenda and even the terminology (the pejorative word “Obamacare” is now even used by news broadcasters), why did he so definitively place himself on the side of the deficit reducers at a time when growth and job creation were by far the country’s most urgent needs?

It all goes back to the “shellacking” Obama took in the 2010 elections. The President’s political advisers studied the numbers and concluded that the voters wanted the government to spend less. This was an arguable interpretation. Nevertheless, the political advisers believed that elections are decided by middle-of-the-road independent voters, and this group became the target for determining the policies of the next two years.

That explains a lot about the course the President has been taking this year. The political team’s reading of these voters was that to them, a dollar spent by government to create a job is a dollar wasted. The only thing that carries weight with such swing voters, they decided — in another arguable proposition — is cutting spending. Moreover, like Democrats — and very unlike Republicans — these voters do not consider “compromise” a dirty word.

Pace, Drew, it is a matter of public fact that Obama wanted to cut Social Security and other entitlements since the early days of his administration, and his desires were reported to be such at the time. Knowing this about Obama’s intentions, I would argue that the President is not a weakling or a deal-maker willing to bridge two extremes; rather, he is a Machiavellian virtuoso who has used the Congressional Republicans as his stalking horse. As Michael Hudson observes, “Obama has come to bury Social Security, Medicare and Medicaid, not to save but kill them.” The reality of the moment shows that, “The President and his men simply support terrible policies.” And it is because of his masterful statecraft that the President now sits in just the place he wants to be — holding an axe over the neck of America’s New Deal liberalism. The fall of this axe will be Obama’s radical change we can believe in.

A nation of laws tortures anyone? (Updates)

Update (4.24.2011)

Glenn Greenwald’s gloss on Obama’s Manning statement contained in the video above has Greenwald taking Obama to task for his legally dubious behavior:

It may be that Obama spoke extemporaneously and without sufficient forethought, but it is — at best — reckless in the extreme for him to go around decreeing people guilty who have not been tried: especially members of the military who are under his command and who will be adjudged by other members of the military under his command. Moreover, as a self-proclaimed Constitutional Law professor, he ought to have an instinctive aversion when speaking as a public official to assuming someone’s guilt who has been convicted of nothing. It’s little wonder that he’s so comfortable with Manning’s punitive detention since he already perceives Manning as a convicted criminal. “Sentence first – verdict afterward,” said the Queen of Hearts to Alice in Wonderland.

POLITICO suggests that Obama had what can be characterized as a Reagan Moment, that is, an instance in which the President of the United States utters nonsense or makes claims contrary to law and fact.

Update II (4.25.2011)

Kevin Zeese has provided an elaborate discussion of the problem with Obama’s Reagan Moment:

The credibility of the military justice system is being undermined by the prosecution of Bradley Manning. His abusive punishment without trial violates his due process rights; his harsh treatment in solitary confinement-torture conditions violates the prohibition against cruel and unusual punishment; and now the commander-in-chief has announced his guilt before trial making a fair trial impossible. A Bradley Manning exception to the Bill of Rights is developing as the Obama administration seeks Manning’s punished no matter what constitutional protections they violate.

Zeese continues:

President Obama’s pronouncement about Manning, “He broke the law,” amounts to unlawful command influence – something prohibited in military trials because it is devastating to the military justice system.  Manning will be judged by a jury of military officers in a military court where everyone involved follows the orders of the commander-in-chief.  How are these officers going to rule against their commander-in-chief, especially after Manning has been tortured in solitary confinement for almost a year?  Any officer who finds Manning “not guilty” will have no chance of advancing his career after doing so.

Article 37 of the Uniform Code of Military Justice makes undo command influence unlawful. Unlawful Command Influence has been called “the carcinoma of the military justice system” and is often described as “the mortal enemy of military justice.” The importance of the command structure in the military makes command influence a threat to fair trails, i.e. “because the inherent power and influence of command are necessary and omnipresent facets of military life, everyone involved in both unit command and in military justice must exercise constant vigilance to protect against command influence becoming unlawful.”

Accordingly, “Unlawful Command Influence occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.”  Further, even: “The ‘appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial.’”  The commander-in-chief announcing guilt before trial is an unprecedented case of unlawful command influence.

So, what effect will these legal rules have on the disposition of Manning’s case? They are likely to have no effect at all.