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Sunday, November 08, 2009

Rule of Law vs. Rulers Above the Law

Rule of Law vs. Rulers Above the Law
Image © Austin Cline
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The Obama administration doesn't appear to be any more committed the rule of law or justice than the Bush administration was. In some ways they are arguably worse, since the Bush administration didn't make any effort to hide their committment to raw power and authoritarian privilege. Every week seems to bring new examples of the Obama administration ignoring or even underming justice and the rule of law in exchange for expanded, arbitrary power of the executive branch.

This past week has been especially bad, even for the American government, with multiple examples of behavior that we should only characterize oppressive, authoritarian regimes. No government is perfect, of course, but we are seeing a consistent pattern of behavior which cannot be excused as minor missteps. What's more, we are seeing foreign governments living up to the ideals America used to champion while we are left to whine about how upholding principles of justice makes things inconvenient for Americans.

Foreign Courts Speak

It's sadly ironic that American conservatives have been so critical when the Supreme Court has given any attention to rulings in foreign courts in the past, yet right now, those same foreign courts are demonstrating so much more respect to basic law and justice than any American court. Then again, maybe it's not ironic — it's arguably all part of the same attitude, which is that law and justice don't matter while American courts can be relied upon to rule favorably on behalf of unchecked government power.

Most recent was the conviction in an Italian court of both American and Italian intelligence agents — but mostly American agents — of kidnapping Muslim cleric Mustafa Osama Nasr and sending him to Egypt to be tortured. This probably isn't the last we've heard from Italian courts and courts in both Britain and Spain are looking into illegal American actions in the "war on terror." All of these court proceedings are conducted with respect to the rule of law and the requirements of justice.

It's not just the courts, either, that have shown such respect for the rule of law. The Canadian government conducted a full investigation into the kidnapping of Maher Arar, a Canadian citizen who was abducted by the American government while he was in America, then sent to Syria to be tortured. Even though the Canadian government wasn't directly involved in the kidnapping or torture, the investigation was full and honest enough to admit that they made serious mistakes which contributed to the problem. The Canadian government publicly apologized and paid compensation to Arar for the brutal, inhumane treatment he suffered — directly and indirectly — because of the United States of America.

American Courts See No Evil, Hear No Evil

In stark contrast to what's happening abroad, American courts appear to be doing everything possible to avoid having to confront questions of justice, law, and morality. The Second Circuit Court of Appeals has completely dismissed an appeal from Maher Arar, refusing to even consider whether the American government violated his rights. According to the majority, it doesn't matter if the American government behaved illegally and immorally.

The court's "reasoning" is that if they were forced to hear the evidence and conclude that government acted illegally, they'd have to assess damages and this would put the court in the middle of debates about the legitimacy of the "extraordinary rendition" policies. In other words, if courts end up judging the legality of government actions, they will have to judge the legality of government policies and this is unacceptable — government officials have to be allowed for formulate whatever policies they want, regardless of legality or constitutional authority. It's now official policy (precedent) that courts must defer to the executive branch by refusing to scrutinize the actions of the executive branch.

So what's the point of having courts, again?

It's not just "national security" which is used to excuse such degrading and corrupt practices. The Obama administration has argued before the Supreme Court — and they were joined in this by prosecutorial organizations from around the nation — the prosecutors have an absolute immunity against lawsuits even up to and including deliberate framing of defendants. Thus, no one in this country has a right to not be framed by the government. If the prosecutors hide evidence, destroy evidence, and make up evidence, causing you to go to jail for decades, there's nothing you can do about it — they won't be punished and you can't sue for damages.

I guess you should just count yourself lucky that they only send you to be raped and beaten in an American jail, rather than tortured and beaten in a Syrian or Egyptian jail.

Impotent Liberal Media

One sad feature that is common to all these stories is the complete failure of America's media to adequately cover any of it. I have to wonder how many Americans even know about these events at all, much less know enough of the significant details to recognize how much of a threat their own government is becoming. I'm torn, though, about which is the worst and most shameful handing of these incidents: just ignoring them entirely, or covering them in a superficial manner which reinforces the Obama administration's authoritarian narrative.

Ignoring the stories means keeping Americans ignorant of both the actions and goals of their government, and nothing good can come from that. Spinning the stories, though, also keeps Americans ignorat — but in a manner that gives them the impression that it's legitimate for the American government to do things which would never be accepted from any other government in the world. If an American court convicted foreign agents of kidnapping, wouldn't we fight for extradition? If a foreign government sent an American citizen to be tortured by a third government, wouldn't we demand restitution?

Even the most liberal of the so-called "liberal media" have been ignoring both the stories in their particulars and the overarching themes which they reveal about the Obama administration. I haven't seen these stories covered by Rachel Maddow or Keith Olberman, have you? Not even John Stewart or Steven Colbert have touched it, despite how these stories are full of great material for satire. Where the media does say anything, they portray America as the victim, for example the craven Jeffrey Toobin on CNN lamenting how "troubling" it is that Americans intelligence agents convicted of grave crimes in foreign courts might not be able to travel abroad lest they be forced to pay for those crimes.

Yes, it's "troubling" when criminals might be imprisoned for their crimes, but not "troubling" when innocent people are tortured or when innocent people spend decades in prison after being framed for crimes they didn't commit. People expressing such attitudes have completely abandoned any pretense at autonomous, serious moral reasoning. They have instead subsumed questions of morality to the expediency of obedience, finding fulfillment in how well they submit to powerful authority figures be they from the state, the church, or the corporation.

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  1. Are the administration's actions here at all surprising?

    Granted, it was the Bush administration that pushed for and accomplished a massive ballooning of executive power but did anyone legitimately expect the Democrats to relinquish that authority when it was handed over to them?

    No party is going to argue for a curtailment of government power when they're the ones in power.

  2. Has anyone figured out yet where Comrade Cline is hiding his sorry ass? This is just one more anti-American post that proves he needs to have the crap beat out of him.

  3. I think Cline's minions move him from safe house to safe house, jcricket.

  4. very sound argument. I too had wondered where the press was when the Italian court ruled. We are talking about war crimes here people...


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