The Rule of Law or the Rule of Men?

By Ralph Nader

Last week, the State Department reassigned the official responsible for the “diplomatic issues” pertaining to the closing of the Guantanamo Bay prison. This was a telling sign that the Obama administration is abandoning its long-held but little-fought-for promise of closing that notorious facility where a majority of prisoners proved to be innocent, often victims of bounty hunters in Afghanistan during 2001 and 2002. With this new development, infinite detention has become ingrained in the woodwork of the government. The Obama administration has failed to present a viable path forward in ending this cruel and inhumane practice. As such, the military will continue to “detain” prisoners that it classifies as terrorists or supporters of terrorists without charges, without trial, and without any oversight.

Furthermore, the language used to describe this detention authorization is so broad that many argue that even American citizens are now susceptible to indefinite imprisonment. So much for habeas corpus! What does this say about the health of civil liberties in our country? The politics of fear have always sold well, but now they are selling fundamental rights and liberties of Americans citizens down the river.

The irony is that the citizens, as taxpayers, are footing the bill for this systematic breakdown of the rule of law. Recall the words of renowned broadcast journalist Edward R. Murrow: “A nation of sheep will beget a government of wolves.”

The hasty passage of the Patriot Act in 2001 set this runaway train into motion. Recall that there was once a time when federal agents would have to notify suspects within 72 hours of searching their homes or businesses. There was a time when the government could not listen to conversations between lawyers and clients in federal prisons, access computer records, emails, search histories, and wiretap phones without judicial authorization. There was never any public clamor to justify this depth of official snooping — no public outcry about a lack of safety.

Looking abroad, there was a time when Congress had to vote to declare war on a foreign nation before a president could use the full might of the U.S. military. Now, executive power is so vast, Presidents Bush and Obama have sent hundreds of thousands of American soldiers into costly, undeclared wars in the Middle East. President Bush once famously stated: “That’s the interesting thing about being the president… I don’t feel like I owe anybody an explanation.” In uttering these words, President Bush demonstrated his stunning lack of understanding and deference to the vital system of checks and balances set up by our country’s founders.

Speaking of “not owing anybody an explanation,” under President Obama, it has been an increase in the use of Predator drones, which rain death and destruction down in foreign lands without regard or respect for national sovereignty. These deadly eyes in the skies 24/7 annihilate their targets and bystanders based on secret “evidence.” Their missions are selected from a secret “kill list,” arising out of what aides call the White House’s decisions on “Terror Tuesday.” Recall Anwar al-Awlaki and his 16 year-old-son were American citizens who were executed via drone without trial. Columnist David Ignatius once wrote: “A world where drones are constantly buzzing overhead-waiting to zap those deemed threats under a cloaked and controversial process-risks being, even more, a world of lawlessness and chaos.”

All of these breaches of the rule of law are a reaction to the events of 9/11. All were done under the veil of enhanced American security. But very little consideration was given by government officials as to how these actions would affect our civil liberties and blowback against the United States and its citizens abroad.

In order for the rule of law to be restored, long overdue actions need to be taken by Congress and the judiciary to rein in the executive branch, which has grabbed power without authority in the Bush and Obama presidencies. For instance, days after 9/11, Congress passed the Authorization for Use of Military Force, which President Bush brazenly interpreted as a blank check to “use all necessary and appropriate force” against any nation or people therein that he determined were associated in some way with the 9/11 attacks and their aftermath, as in the invasion of Iraq. In the future, Congress must stipulate that such an enormous power grant is “subject to the limitations of existing law” and, at the very least, must include a procedure for consultation on whatever war-related powers the president chooses to exercise.

Serious laws are meaningless, however, if badly breaking them does not include a genuine risk of impeachment for their disobedience. Take President Obama’s war in Libya — he disregarded the War Powers Resolution, obtained no congressional authorization and received no appropriations. He outdid Bush in this disregard. Yet Congress took no action against him. Congress should not underestimate the threat of impeachment for a president who usurps the war powers of the legislature. Benjamin Franklin called impeachment the reasonable substitute for revolt against tyrannical leaders.

Congress should never impose a law that diminishes freedom and civil liberties without thorough public hearings, convincing evidence and full floor debate on the constitutionality of the proposals. If such laws are passed, they also should have an automatic expiration date. Through these “sunset provisions,” laws that encroach on civil liberties can be revised when political impetuousness has cooled and new legislators come into office.

Civil liberties are the foundation of the “liberty” and “freedom” so often invoked by politicians beating the war drums against nations they claim do not respect those traditions. If our leaders and lawmakers do not see the hypocrisy laden in that jingoism, it is the responsibility of the vocal citizenry to make them aware. Only then can the American “way of life” truly be protected.