“Rule of law.” I like the sound of that. And yet, what exactly does it mean? Wikipedia suggests it is a “general legal maxim according to which decisions should be made by applying known principles or laws, without the intervention of discretion in their application.”
Personally, I would sum it up by contrasting it with “might makes right.” Rule of law isn't about having a powerful leader do something and then just defining that something as right; it's about following pre-established rules and procedures even if you're the leader.
I applaud the situations in which Obama has, in fact, returned us to the rule of law. But I'm starting to believe there are a number of cases where Obama exercises as much discretion as Bush in questionable areas and where he seems to seek to distinguish himself by using better judgment, by coming to a better conclusion.
I've evolved a tool to help me sort out certain tricky kinds of political issues. The tool is embodied in my claim that “there are no political answers, only political questions.” What this emphasizes is that there is no such thing as a neutral position on a political matter, there are only positions that people hope will not be spotted as equally political. And so when one spots an answer to a question that seems political, it's important to backtrack in the conversation to find the question itself, and then to explore its other answers (including the status quo), and to view each of these as a political outcome as well, not as somehow intellectually neutral.
In this case, it would seem that Obama either thinks or wants us to think that pursuing a prosecution of Bush and his administration for war crimes (waterboarding, for example) would be politically motivated—but that not pursuing it is not politically motivated. Cynics and conspiracy theorists might say he's trying to fool us; I'm not so sure he's not fooling himself as well. But either way, the objective truth is that it's the question that is political, and the question definitely exists already and cannot be avoided.
Bush may have violated the law. Has he? We don't decide such things as matters of fact within the US except by application of a court of law. And how would we proceed to do that? Well, we do employ an Attorney General. The US Department of Justice explains that the Office of the Attorney General “evolved over the years into the head of the Department of Justice and chief law enforcement officer of the Federal Government.” You'd think his job was to enforce the law by invoking the appropriate legal mechanism. But apparently not.
And so we return to that pesky phrase “rule of law” because the question is how much discretion is exercised by the Attorney General. Because on a matter of this magnitude, which is, appropriately enough, the metaphorical elephant in the room, to exercise discretion is to say that there is no rule of law.
Ironically, one of the most offensive things about the Guantánamo situation is that we don't even know if the people there are innocent or guilty, because they have never been offered a trial. It seems likely that many are guilty, but it's the trial that decides. One of Bush's greatest offenses is to substitute his judgment for a court's. And some would like to say that Bush was a criminal for having done this, but we can't say that either. A trial is needed. And now a different President is substituting personal judgment for due process.
There exists a political question. That fact cannot be avoided. Having the President turn a blind eye is not a process. There is a notion of “due process” for resolving matters such as these. The prosecutorial trial system is a process, one that's due.
If the trial system cannot be trusted to resolve such matters as these, at least have the decency to change the process to say what the rule is. If it's “in certain matters, the President just decides,” then do us the courtesy of changing the law so that we can know and discuss the policy. We purport to be a nation of laws, so let's make the law and the practice of law align. If we can't do that, have we improved since the previous administration?
Don Geddis observes that there is still a place for prosecutorial discretion, and I certainly didn't mean to suggest otherwise. He suggests, as an example, that where there is insufficient evidence, it might be appropriate not to prosecute. I agree. But the places where I want to see such discretion exercised should be on the technical merits—is there sufficient evidence to bring a case (which I think has to meet the standard of “probable cause” or some similarly preliminary level of proof sufficient to build a prima facie case); that indeed requires some human discretion. But where I don't want to see prosecutorial discretion used is in the style of a Jedi mind trick where someone says to an official “these are not the people you should be prosecuting” and then suddenly there is nothing to prosecute or defend. I'll have more to say about that in another post sometime soon, I hope.
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Originally published April 17, 2009 at Open Salon, where I wrote under my own name, Kent Pitman.
Other articles on the topic of prosecuting war crimes:
• Obama Administration Releases Torture Memos (Saturn Smith)
• The Memos Don’t “Shock the Conscience” of Obama (Christine Smith)
• The Ethics of The President's Decision on Torture (Monte Canfield)
• Take Action: Demand Justice for Torturers w/NUDITY (Behind Blue Eyes)
• Torture: Principles and Practicality (Tom Cordle)
• Obama and Torture: Did He Say Just Following Orders? (Libertarius)
Tags (from Open Salon): politics, rule of law, attorney general, prosecutorial discretion, political questions, political answers, might makes right, obama, bush, war crimes, torture, guantanamo