A Government of Men, Not Laws
In January 1776, John Adams wrote in his "Thoughts on Government" that he envisioned "no good government but what is republican... the very definition of a republic is 'an empire of laws, and not of men.'" He referred to previous thinkers who had considered what was necessary in a republican government. Livy, in Ab urbe condita, described that Rome enjoyed "the authority of her laws supreme over all her citizens" [imperiaque legum potentiora quam hominum peragam]. Later, Adams introduced that phrase into the original draft of the Massachusetts Constitution. Adams knew that one of the failings of the Roman Republic was that it was too easy for the consuls, nominally the executives, to assume dictatorial power.
While the United States Constitution does not contain Adams's words about laws and men, his ideas resonated with those of the other drafters of the Constitution. The checks and balances built into the Constitution were put there specifically to avoid the perils of a monarchy or a theocracy. Recent actions by the Bush administration show a fundamental lack of respect for the tradition in the United States of trusting in the Constitution and the laws that derive from it. By contrast, the members of the Bush cabinet expect the American public to trust their judgment. They would prefer that American be a nation of men, and not laws.
Bush and his cabinet would do well to remember what Rudy Giuliani went through in the aftermath of the attacks on the World Trade Center. Giuliani sought to avoid the strictures of a New York City law that prevented him from a third consecutive term as mayor. First, he wanted to serve a full third term. Then, he tried to postpone the inauguration of his successor by three months. His laudable reason for an extended term in office was that New York needed him to oversee to recovery of lower Manhattan. What Giuliani forgot was that New York needed a mayor to oversee the recovery, not necessarily Rudy Giuliani to oversee the recovery.
By the end of October, Giuliani had accepted the inevitability of the end of his term in office. In fact, he had determined that he was needed so much to oversee the work at Ground Zero that he attended the three World Series games in New York, as well as the final two games in Phoenix. (He even flew back after the penultimate game to see off the runners in the New York City marathon, then traveled back to Phoenix for the final game.) I like to think that Rudy finally remembered an old saying: "Never be irreplaceable. If you can't be fired, then you can't be promoted."
The most recent action that showed the thinking of the Bush administration was the President's executive order allowing military trials for terrorists who are non-citizens. It would apply to "any individual who is not a United States citizen." The order applies not only to members of Al-Qaeda but a potentially huge number of persons. Section 2 of the order applies it to a person who "has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or ... has knowingly harbored one or more individuals described [above]." [emphasis added] This order could, at the sole discretion of the President, apply to a Russian hacker whose virus interrupted the Internet; or a Chinese protester in front of an embassy who delayed trade negotiations; or anyone with a green card who protested against NAFTA or the WTO and adversely affected a summit meeting.
Unlike trials in civilian courts, these trials would lack many of the protection that the Constitution normally provides. The trials themselves could be held in secret. Evidence presented at the trials could be withheld from the defense, and could include hearsay and other evidence not allowed in civilian courts. Anyone convicted at such a trial would have no right to any appeal, except for the review by the President or the Secretary of Defense. Most importantly, the President alone would determine who would be subject to the order.
Other Presidents have justified restrictions on civil liberties in times of actual, declared war. Lincoln suspended habeas corpus during the Civil War. Franklin Roosevelt ordered thousands of Japanese-Americans into internment camps during World War Two. These are infamous exemplars of the erosion of civil liberties during wartime. Their repercussions are less well-known. The Supreme Court eventually found Lincoln's action unconstitutional, even given the real threat to the Republic. While the Supreme Court did indeed support Roosevelt's internment camps, the United States eventually paid reparations to the persons and families affected.
What is truly galling about the administration's position on military tribunals is the complete lack of need for them. Current rules of evidence in civilian courts allow the government to prosecute criminals without damaging national security or revealing any secrets behind our intelligence services. The United States can and should follow historical precedent in prosecuting any members of Al-Qaeda that it captures. The victors in World War II did not bring the leaders of the German Nazis into secret military courts. Instead, the trials in Nuremberg were public records of the evil perpetuated by the defendants. The world saw that even the most vile defendants were entitled to able representation and fair trials. Indeed, criminal courts in New York City successfully tried, convicted, and sentenced associates of Osama bin Laden for blowing up two American embassies in 1998. When the hijacked jets hit the towers of the World Trade Center, the sequestered jury was finishing its deliberations during the sentencing phase of the trial. Furthermore, In 1993 and 1994, a civilian trial also successfully prosecuted four associates who had tried to topple the World Trade Center towers with a truck bomb.
The decision to trust the President to determine the right time to ignore the basic premises of American jurisprudence is just one of several disturbing actions of recent weeks.
On Hallowe'en, Attorney General John Ashcroft promulgated regulations in the Federal Register that limited the attorney-client privilege "[i]n any case where the Attorney General so orders." Ashcroft issued these regulations retroactive to the previous day, without a period for comments before their enactment. Sometimes situations call for temporary regulations, with a comment period before implementation of final regulations. But Ashcroft instead broke with traditional protocol and issued final regulations, with an ex post facto comment period. Were these regulations uncontroversial, as regulations implementing some brand new law might be, then the breach of procedure might have been proper.
However, removal of attorney-client privilege is a direct assault on the constitutional right to a fair trial. The Sixth Amendment specifically allows a defendant in a federal criminal case to have "the assistance of counsel." The Fourteenth Amendment later extended this right to a criminal trial in any state court. The Supreme Court, in Gideon v. Wainwright considered a legal defense so important that it ordered that courts provide a free lawyer to any criminal defendant who could not afford a lawyer. Of course, Ashcroft may not abuse his newfound power. But he would nonetheless endanger civil rights established over centuries.
Since his inauguration, President Bush has sought to prevent the release of a slew of documents from the Reagan White House. Under the 1978 Presidential Records Act, most Presidential papers become publicly available 12 years after the President in question leaves office. The law prevents the release of any documents relating to national security unless they are declassified.
The Presidential Records Act was a consequence of the refusal by the Nixon White House to release tapes and transcripts that implicated President Nixon and his closest advisors in a host of criminal activities. The law makes clear that most documents produced by the White House are the property of the people, not the President and his advisors. Accordingly, most of the papers should be available for public inspection. But Congress decided that twelve years—three Presidential terms—was a fair amount of time to expire before historians and others would get to see confidential papers. But the Bush White House, faced with the expiration of the 12 years for Ronald Reagan's papers, does not. President Bush and his advisors believe that future Presidents will know best about what the American public should see of its own property.
The disdain for laws and the acclaim for men extends even to foreign relations. Since his inauguration, President Bush has pulled the United States out of negotiations of the Kyoto Protocol to limit carbon dioxide emissions. His disdain for the Anti-Ballistic Missile Treaty knows no bounds: it is "outdated" and "dangerous." Instead, he trumpets his personal relationship with Russian President Vladimir Putin. It is wonderful that the American and Russian Presidents are fast friends. It would be even more wonderful if we could cement that friendship in writing. (Of course, his relationship with the leaders of China, who would probably deploy more nuclear weapons as a response to any ABM system is less friendly. And it is not clear how well he gets along with Prime Minister Vajpayee of India or President Musharraf of Pakistan, both of whom would be upset with any new Chinese deployments.)
In the realm of biological weapons, the American position was also crystal clear. In July, the United States refused to negotiate any further on the Verification Protocol to the Biological Weapons Convention, because the treaty was fatally flawed. Now, of course, some in the administration are sure that Iraq and other countries are behind the anthrax spores found in the mails in October and November. If only there were some sort of international treaty about this! In a year in which international cooperation against terrorism was an American demand that "you are either with us or against us," international cooperation through treaties is anathema.
Giuliani remembered, albeit after a dalliance with extralegality, that laws, and the deliberation that went into them, help separate what Adams called republics and what we call democracies from the autocratic and theocratic nations of the world. While the ruling party may change the law, the law is what governs the governed, not the party in power. By contrast, the Taliban ruled by edict. George Bush somehow thinks that being more like the Taliban is what America needs right now.
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