The laws, Cicero wrote in the days of the Roman Republic, “are silent in time of war.” But what if the war has no end, no defined enemy, no defined territory? How can markets work if the financial behemoths are too big to fail and too big to jail?Those are the final two paragraphs of Above the law, an op ed in today's Washington POst by Katrina vanden Heuvel, editor and publisher of The Nation.
If the national security state has the power of life or death above the law, and Wall Street has the power to plunder beyond the law, in what way does this remain a nation of laws?
For those who are movie buffs, that title might seem familiar, as it is also the title of a Steven Seagal movie where what is above the law is the CIA.
At one point this nation had decided that the intelligence apparatus should not be above the law - we had hearings in both the U. S. Senate led by Frank Church and the U. S. House led by Otis Pike which exposed the abuses of agencies like the CIA and FBI among others, and led to the establishment of ongoing committees in both chambers of Congress to oversee intelligence operations by the US Government.
When Leon Panetta allowed those who had clearly violated law and regulation in the CIA not to be subject to the appropriate prosecution for abuses during the Bush administration, we effectively announce to the world that there was no legal limit to what parts of our government could do, that they were if an appropriate administration official so ruled, outside of legal control and thus above the law. It does not matter if a lawyer could be persuaded to provide the fiction of a legal opinion as did the likes of John Yoo. By that rationale a simple ruling by a Nazi lawyer would have justified the Holocaust.
There is something rotten in the state and the state is not Denmark.
Once upon a time President Nixon opined to David Frost that if a President does it, it is not illegal. Most Americans were at the time horrified at such a notion.
Ignore for the moment that if George W. Bush were Dick Cheney's puppet for much of his term, he was a willing puppet There is clear evidence now, and there was before, that figures like David Addington, John Yoo, General Geoffrey Miller, Donald Rumsfeld, Dick Cheney, and many more should have been brought before a competent Court and charged with violations of international and United States law.
In many cases what they did was not even subject to Congressional oversight, as we found out when some of the details of the secret room in San Francisco gobbling up all kinds of telecommunications without even the easily obtainable warrants under the Foreign Intelligence Surveillance Act were exposed. There non-governmental entities were exposed under extant statute to severe criminal and civil penalties, but under pressure from the Bush administration the Congress of the United States gave the telecommunications giants a free get out of jail card in the form of ex post facto amnesty, effectively gutting the Telecommunications Act's protection of personal communications.
Of course, it is not as if the government itself was not also violating privacy and the Fourth Amendment's protections by interpreting its right to search (including by seizure) not just at the moment one crosses into the United States at the point of Customs inspections but in border regions extending several hundred miles further.
We empowered corporations to act illegally in the US.
Under the Coalition Provisional Authority actions by the likes of Blackwater and other security contractors were not subject to Iraqi Law, nor were their operatives subject to the Uniform Code of Military Justice which should have meant prosecution by Courts Martial for the same actions if done by uniformed military personnel, nor were they subject to prosecution under U. S. Statute because their actions were deemed outside of the authority of US Law - although it was a US Government official, Paul Bremer, who was the one as an individual effectively ruling they were above the law.
If Justice is to be blind, it is not to the actions of governments and those authorized by governments to act on its behalf - the doctrine of sovereign immunity as traditionally interpreted in the United States applies to protection against civil suits. Rather, we had traditionally believed, even if not consistently practiced, that the blindfold over the eyes of Lady Justice was that in assessing violations of the law we ignored position and status, including those of high government officials.
Yes, we had Congressional immunity, but as Larry Craig found out that was far from absolute. And were a Congressman or Senator to have committed a felony while the Congress were in session, his or her refusal to submit himself to charges could well have lead to his being excluded from his chamber by the other members.
At Nuremberg and other post-war tribunals, we established a principle that following orders was not a sufficient defense when something was a crime against humanity. At least as late as the Vietnam era, our servicemen were specifically instructed not only in the rules of the Geneva Conventions, but that we were not to follow a clearly illegal order - I joined the Marines in 1965, after they had landed at DaNang in March of that year and were engaged in the conflict, and such instruciton was an integral part of our training.
If a bank is too big to fail an/or too big to prosecute, then it is too big. If a corporation is a person, it has to be subject to the same criminal penalties as a human. Those humans who operate it have to be liable for its actions, particularly when they decide to break the law, the same way a US Military officer who orders his personnel to an illegal act is suppose to be liable.
Yet we no longer have respect for the law. We must not, or multiple people of the immediate past administration would have been prosecuted. Multiple corporations would at least have been fined, and perhaps their officers jailed, or at least permanently barred from being in positions of power or authority in the financial services industry.
Apparently breaking the law is okay provided you make a large enough profit while doing so.
We are supposed to have a government of laws, not of men - or of money.
In my years of teaching government to high school students, I regularly wrestled with the task, because I was not sure what I was teaching. The government seemed to be changing even as I taught
Yes, I supported Obama in 2008 over McCain because I heard a candidate who would remark that he knew the Constitution, had taught the Constitution, and would abide by the Constitution. I supported him again in 2012 over Romney because I knew that Romney interpreted the role of government in a way that favored those already rich and powerful and ignored what the laws were intended to do for society as a whole, and I did not need a tape with remarks about the 47% to know thatt - his record as a businessman and in running the Olympics in Salt Lake made that clear, as did his obliterating the electronic records of his term as governor on the way out of office further demonstrated.
Sadly I see too many actions - and non-actions - and too many statements by high officials of this administration to be happy with the results of my support. While there are things I respect that this administration has achieved, I am more than disappointed by its approach on things I believe should be fundamental to our system of government.
Its entire approach to whistleblowers absolutely turns my stomach.
When combined with the refusal to prosecute corporations and individuals that have ripped off our economy and violated rights and laws, that bepeaks a mindset that is horrifying:
It says "trust us" because we will not allow you to see what we are doing.
It is an assertion of being beyond oversight, by Congress or the public or the eyes of the public in media, traditional or new.
It is a claim to be above the law.
vanden Heuvel quoted Cicero at the end of her op ed. At the beginning she quoted John Marshall:
“The government of the United States,” wrote Chief Justice John Marshall in his famous decision in Marbury v. Madison, “has been emphatically termed a government of laws, and not of men.” This principle — grounded in the Constitution, enforced by an independent judiciary — is central to the American creed. Citizens have rights, and fundamental to these is due process of the law.Does that mean if the standard is no longer applicable, the republic is no longer legitimate?
This ideal, of course, has often been trampled in practice, particularly in times of war or national panic. But the standard remains, central to the legitimacy of the republic.
If the law does not apply to all, with Lady Justice not applying it equally regardless of position or wealth or connections, then we do not have a legitimate republic.
If the voices of the people are outweighed by money and office, then we no longer have a democracy.
When the Attorney General of the United States can make the kinds of statements Eric Holder has made with respect to the military authority of the President and the unwillingness to pursue criminal wrongdoing by bankers, we are no longer a nation of meaningful laws, we are neither a republic nor a democracy.
There must be oversight, transparency and accountability.
Otherwise we can replace the words of Eric Holder with those of the fictional Nathan Jessup in A Few Good Men:
Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinburg? I have a greater responsibility than you could possibly fathom. You weep for Santiago, and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know. That Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. You don't want the truth because deep down in places you don't talk about at parties, you want me on that wall, you need me on that wall. We use words like honor, code, loyalty. We use these words as the backbone of a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner in which I provide it. I would rather you just said thank you, and went on your way, Otherwise, I suggest you pick up a weapon, and stand a post. Either way, I don't give a damn what you think you are entitled to.We were warned about unfettered power by a classical figure other than Cicero. His name was Juvenal. His famous words are these: Quis custodiet ipsos custodes?
Who watches the watchers?
Who ensures that they do not abuse the power we give them, either to enrich themselves or to abuse others?
If anyone is "above the law" then does not the whole notion of a nation of laws lose meaning?
Then what is there to teach about government?
Perhaps I was right to retire when I did, because if a Democratic administration can espouse the ideas we have heard from Leon Panetta and Eric Holder, the "government" we have is not something I would want to teach.
If anyone can be "above the law" we cannot justify that anyone should be subject to the law.
Then we move towards anarchy.
Then we move either towards tyranny or the Hobbesian world of the war of every man against every other man, and for the life of the ordinary man, it will be solitary, poor, nasty, brutish and short.
If the term "above the law" is not a contradiction, then the notion of law has no meaning.
And if the notion of law has no meaning, I want no part of instructing young people in the supposed wonders of the American system of government, because then we are little more than a banana republic.