We have also learned, however -- after several years of pushing our constitutional format -- that there is one indispensable element in a free society. It is the rule of law. By that phrase, I mean the ideal under which every citizen is governed by the same law, applied fairly and equally to all; government favors may not be bought; and justice is administered blindly, in the sense that it never stoops to favoritism. Under this ideal, government decisions are not the whims of individuals. Rather, they are duly enacted into laws, that are then obeyed as they were written.
-- Marci Hamilton
"First of all, this administration opposes torture ... the kind of atrocities displayed in the [Abu Ghraib prison] photographs are being prosecuted by this administration."
-- Attorney General John Ashcroft
"Eloquence is just a hooker if it will serve as a short-term no-commitments release for any idea that comes along"
-- Michael Kinsley, "The Limits of Eloquence"
"It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer."
-- Jack Balkin, on the various "how to get away with 'torture'" memos
The foundation of our system of government is the Constitution, but in a more basic sense, it is the rule of law. We all know that this is not a utopia, thus the consistency and equity of this system is somewhat suspect and haphazard. All the same, some basic minimum must be upheld, or we move toward the area of arbitrary despots. Long before that occurs, we must be on guard for acts of expediency in which the underlining principle is the lack of one. For instance, arguments that governments should have limited powers ... except when you think they should not.
Intel Dump (Phil Carter, "former Army officer, journalist, and recent UCLA Law School graduate") is but one of many who point out the basic casuistry of the administration's policy on handling detainees. They provide lip service that is belied by various reports, legal memoranda, and common sense. The memoranda, which (classified or not) the administration is loathe to make known (one way to hinder Congress' role in formulating rules of war), suggest the President is above the law and that his subordinates have a "Nuremberg" like defense if charged with torture that the executive allowed. Such a possibility is guarded against by narrow definitions of "torture" and the Geneva Convention and other relevant safeguards. Jay Bybee wrote one such memo; he is now a federal judge. William Haynes is another one involved; he has been nominated.
The Department of State was quite wary about much of the legal advice. For instance, this memo by William Taft IV (descendant of President and Chief Justice Taft and Profile in Courage subject, Robert Taft, and the State Department's Legal Adviser to White House) pointed out that "the plain language of the Conventions and unvaried practice of the United States" over the last fifty years, the advice of DOS lawyers, probably every other party to the Geneva Conventions (consistent with the relevant UN Security Council Resolution), and basic policy concerns (including, protecting our troops) runs counter to what the Justice Department advised concerning Afghanistan.
The memoranda, policy judgments, and actual handling of detainees are now slowly coming out. Though better late than never, it would have been ideal if the Congress and public at large was better informed about our government's policy before they actually acted! John Dean in his excellent "polemic," Worse Than Watergate: The Secret Presidency of George W Bush argues the true threat to our nation in these troubled times is not physical violence, but a threat to our very way of life. This includes a defense of violation of the rule of law, humane treatment, and open government because of some seemingly never ending "war on terror."
Dean suggests secrecy is dangerous for any number of reasons: it's undemocratic (the people need information to judge its public officials and their actions), threatens liberty, precludes public accountability, alienates, negatively affects character, encourages incompetence, and is basically dangerous. An expansion of various Findlaw columns, the book provides a very good summary of how this administration corruptly used secrecy to further their aims in war and peace. A quick read that also is easily skimmed for those who want to focus on particular egregious examples
At what point will the message of such accounts sink in? Will lip service be able to hide the rotten core until it's too late? Will expediency, not principle, be our guide? Time will tell.