Alberto Gonzales said something remarkably dumb the other day...
No wait, really, this is news.
Gonzales claimed that he did not believe Eric Holder would prosecute him or others for their roles in authorizing or ordering torture. Gonzales stated "I don't think that there's going to be a prosecution, quite frankly. Because again, these activities ... They were authorized, they were supported by legal opinions at the Department of Justice."
I've never believed that Mr. Gonzales was burdened with a substantial intellect. Nonetheless, he has managed to crystallize the difference between the rule of law and legalism.
The question for us, as a people, as a Republic, as a symbol and a beacon to the rest of the world is, what do we choose to be, a nation of laws, or one of legalism?
To begin, let me clarify the difference between a system of laws and one of legalism. When I graduated from law school, my classmates and I were told to go forward in the service of "the wise restraints that make men free." The seeming paradox of the law is that by choosing to constrain ourselves, we make ourselves and those around us, free and secure. But in order for the law to work, it must be just. It must be rational. It must treat famous men and ordinary ones, the rich and the poor, the powerful and the meek, the same. The rule of law exists when we live under a system of laws we believe to be just and cheerfully submit to them.
Legalism, on the other hand, is a gimmick. It dresses itself in the clothing of the law but it is arbitrary and capricious. Legalism misuses the language and majesty of the law to attempt to make legal what is illegal, moral what is immoral, and rational what is absurd. Legalism was the modus operandi of the entire Bush administration - from "Clear Skies" and "Healthy Forest" legislation that was the height of Orwellian double-speak to the so-called Patriot Act and telecom immunity. Legalism is the facile and idiotic belief that "when the President does it, it's not illegal," and that all laws, all protections and rights of man, which good people have fought for, and bled for, and died for, can be sublimated to some almighty "Commander in Chief Power" that knows no limits or boundaries.
Legalism, in its most vicious and evil form, is the Nuremberg Laws.
Legalism is the basis for the defense of "just following orders."
Legalism was the theory behind Pinochet and Mugabe's claims sovereign immunity against charges of crimes against humanity.
Legalism is extraordinary rendition, enhanced interrogations, Gitmo, and Abu Ghraib. It's manufacturing a rationale for an illegal, unnecessary, and unjustified war. It's claiming that the threat of scary foreign terrorists justifies spying on American journalists at those bastions of jihadism like the New York Times.
I'm not saying that the last administration was on par with Nazism, that John Yoo, Jay Bybee, Dick Cheney, David Addington, and Alberto Gonzales, contemptible as they are, are the modern-day equivalents of Himmler, Hess, Goering, Goebbels, and Eichmann. But what I am saying is that a society, no matter how civilized it is, must be on guard against legalism - the sort of Faustian bargains and deals struck in smoke-filled rooms, that are then bound up in technical legal jargon, or worse, simply shrouded from public view. When left unchecked, legalism eats away at the rule of law until the entire system becomes farce.
John Yoo and Jay Bybee wrote absurd, illogical defenses of war crimes, slapped them down on Office of the Legal Counsel stationery, and the Bush administration ran around as though it now had carte blanche to torture the ever loving fuck out of anyone it wanted.
David Addington and Dick Cheney advanced, through secret meetings and Presidential Signing Statements, the academically indefensible and perplexing theory that there is no such thing as the separation of powers and the President is free to ignore whichever laws he chooses, so long as he is wearing his Commander in Chief hat when he does it. This meant that FISA didn't apply, and that they were free to spy on all manner of Americans, most especially the press. Because if the Fifth and Eighth Amendments don't mean anything, why should the First or Fourth?
Alberto Gonzales turned the Justice Department into a dumping ground for ideologically driven know-nothings and rejects from fifth rate law schools. He elevated incompetence to an art form in his management of the U.S. Attorney firings and managed to make John Ashcroft seem sympathetic in his hamfisted attempt to get the warrantless wire-tapping program blessed by the ailing AG.
So when that mental midget, the affable torture enabler who made a mockery of this country's system of justice declares: "these activities ... They were authorized, they were supported by legal opinions at the Department of Justice," how is that any different from Adolf Eichmann claiming he did nothing wrong because "I never did anything, great or small, without obtaining in advance express instructions from... my superiors"?
Sadly, it's not enough for us to repudiate the work of these trolls who ape the words of the law like some shibboleth that might give legitimacy to their criminal conduct. We cannot make a clean break from the past.
Nor can we, in the disreputable words of Richard Cohen, claim that the "Past" is "a very different country" where our rules of law and our sense of justice just don't apply. The rule of law demands equal and disinterested application of the law. It makes no exception for "great" people with "immense" responsibilities. They have no more right to order torture than I do. They cannot make constitutional what is unconstitutional just by their say so.
When a person - any person, regardless of station or power - breaks the law, they must be held accountable. The rule of law demands no less of us. If we do not hold them to account, we imply that our laws are not just, or not worth following. If we apply the laws only when they are convenient or easy, then they are not laws. We cannot both honor the law and let slip into history the crimes committed by the past administration.
I know this sounds strident. I know it stikes a discordant note with the administration's stated goal of looking forward, instead of backward.
But past is prologue.
And the law means nothing if we only apply it when doing so costs us nothing.
In order to truly put the sordid mess of the last eight years behind us, we must repudiate legalism for the chicanery that it is. We must denounce it and those who would use it to cloak their illegal and immoral behavior. We must make sure that no one in an office of power or trust in the United States ever again believes that they can break the law, so long as they do so with legalistic language and a memo from OLC to back them up.
And that cannot be done if we do not give justice her due.