Subscribe to Common Dreams News Updates
Most Popular This Week
Popular content
Today's Top News
If Criminal Penalties Are Removed, What Will Deter Lawbreaking by Political Officials?
The Washington Post's Ruth Marcus today perfectly expresses the consensus view of establishment Washington regarding the exemption which political elites should and do enjoy from the rule of law, and, in doing so, she unintentionally highlights -- as vividly as possible -- the glaring flaw in this mentality. Marcus reviews the life of Mark Felt, the number 2 FBI official under J. Edgar Hoover who died this week. Felt is most famous for having been Bob Woodward's "Deep Throat" source in the Watergate investigation but, as Marcus details, he was also convicted in a 1980 criminal trial for having ordered illegal, warrantless physical searches of the homes of various friends and relatives of 1960s radicals.
Less than 24 hours after Felt was convicted, he (along with an FBI co-defendant) was pardoned by Ronald Reagan, who justified the pardon by citing Jimmy Carter's pardon of Vietnam War draft evaders and then saying, in words obviously relevant now to growing demands for prosecution of Bush officials:
We can be no less generous to two men who acted on high principle to bring an end to the terrorism that was threatening our nation. . . .
[The men's convictions] grew out of their good-faith belief that their actions were necessary to preserve the security interests of our country. The record demonstrates that they acted not with criminal intent, but in the belief that they had grants of authority reaching to the highest levels of government.
Marcus quotes Felt's Special Prosecutor, John Nields, as angrily protesting Reagan's pardon, pointing out that central to our form of Government is the proposition that our highest political leaders are constrained by the Constitution and the rule of law -- a principle Reagan subverted by protecting these criminals.
Like the good, representative establishment Washingtonian that she is, Marcus announces that -- when it comes to the growing controversy over whether Bush officials should be investigated and prosecuted for their crimes -- she "find[s herself] more in the camp of Reagan than Nields." Her reasoning is a perfect distillation of conventional Washington wisdom on this topic:
I understand -- I even share -- Nields's anger over the insult to the rule of law. Yet I'm coming to the conclusion that what's most crucial here is ensuring that these mistakes are not repeated. In the end, that may be more important than punishing those who acted wrongly in pursuit of what they thought was right.
Leave aside Marcus' revealing description of government crimes as "mistakes." Even on its own terms, even if one accepts her premise that Bush officials broke the law "in pursuit of what they thought was right," this argument makes absolutely no sense. In fact, it is as internally contradictory as an idea can be.
Along with the desire for just retribution, one of the two principal reasons we impose penalties for violations of the criminal law is deterrence -- to provide an incentive for potential lawbreakers to refrain from breaking our laws, rather than deciding that it is beneficial to do so. Though there is debate about how best to accomplish it and how effective it ultimately is, deterrence of future crimes has been, and remains, a core purpose of the criminal law. That is about as basic as it gets. From Paul Robinson, University of Pennsylvania Law Professor, and John Darley, Psychology Professor at Princeton, in "The Role of Deterrence in the Criminal Law":
For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime.
Punishment for lawbreaking is precisely how we try to ensure that crimes "never happen again." If instead -- as Marcus and so many other urge -- we hold political leaders harmless when they break the law, if we exempt them from punishment under the criminal law, then what possible reason would they have from refraining from breaking the law in the future? A principal reason for imposing punishment on lawbreakers is exactly what Marcus says she wants to achieve: "ensuring that these mistakes are not repeated." By telling political leaders that they will not be punished when they break the law, the exact opposite outcome is achieved: ensuring that this conduct will be repeated.
* * * * *
Just contemplate how stupid and irrational everyone would think a person was being if they wrote an article advancing this argument:
Much more important than punishing murderers or getting caught up in protracted disputes about prior murders is the need to prevent murders from occurring in the future. Therefore, we ought to abandon our quest to impose punishments on people who get caught having murdered someone. To expend resources trying to punish murderers is to squander vital resources on the past, to waste energies that could instead be more productively devoted to preventing future murders.
There are too many important challenges we face to waste time bogged down litigating past murders. Let's allow murderers to go unpunished so that we can move beyond the past and concentrate instead on the more important priority of minimizing the number of murders in the future.
The argument, of course, is self-refuting. If we adopt a policy of not punishing murderers, we will obviously not be preventing future murders. We will be doing the opposite: ensuring and even encouraging a massive increase in murders, since people will know that they are now free to do it with impunity. The prime barrier to most crimes -- the main deterrent -- is the threat of criminal punishment, of a lengthy prison term. That's not true of all crimes (the criminal law has had a negligible effect, for instance, on drug usage, and may not deter poverty-motivated crimes), but it's certainly true of most serious crimes, especially by those with power. If you abolish that punishment, then you inevitably ensure many more crimes in the future, no matter how many noble efforts you devote towards "making sure it never happens again" -- whatever that might mean.
The evidence demonstrating that this is an exact analogy to what Marcus is advocating, an exact analogy to what we've generally been doing with political leaders and are doing now, is equally self-evident. A central observation in Marcus' column is that the controversies that have now arisen over Bush lawbreaking in the areas of interrogation and surveillance are not new. As she points out, these are the very same controversies that we've been confronting for decades.
That's exactly right. The same controversies over government lawbreaking arise over and over. And why is that? Because our political leaders keep breaking the law -- chronically and deliberately. And why do they keep doing that? Because there is no deterrent against it. Every time they get caught breaking the law, the Ronald Reagans and Ruth Marcuses of the world step in to insist that they should not be punished, that the criminal law is not for elite leaders in political office, that those involved in the noble function of ruling America are too intrinsically well-intentioned to warrant punishment even when they commit crimes, that it's more important to look forward than back.
Every time we immunize political leaders from the consequences of their crimes, it's manipulatively justified in the name of "ensuring that it never happens again." And every time, we do exactly the opposite: we make sure it will happen again. And it does: Richard Nixon is pardoned. J. Edgar Hoover's lawbreakers are protected. The Iran-contra criminals are set free and put back into government. Lewis Libby is spared having to serve even a single day in prison despite multiple felony convictions. And now it's time to immunize even those who tortured detainees and spied on Americans in violation of numerous treaties, domestic laws, and the most basic precepts of civilized Western justice.
* * * * *
If someone wants to argue that America is too good and our Washington elite too important to allow our powerful political leaders to be subjected to the indignity of a criminal proceeding, let alone prison, they should argue that. As warped as that idea is, at least it's candid and coherent. It's the actual animating principle driving most of this.
But this claim that we have to immunize political leaders from the consequences of their lawbreaking in order to -- as Marcus wrote -- "ensure that these mistakes are not repeated" is manipulative and Orwellian in the extreme. It's contradictory on its face. It's just a Beltway buzzphrase, a platitude, completely devoid of specific meaning and designed to do nothing but obfuscate what is really going on.
Whenever you hear that claim being made -- that what matters is not punishment, but ensuring that it never happens again -- notice that none of the Serious guardians who advocate it ever, ever answer or even acknowledge this question: other than punishing people for breaking the law, how is it even theoretically possible to ensure it doesn't happen again in the future? We already have unambiguous laws in place with substantial penalties for violations. We already impose disclosure obligations, and substantial oversight duties on the Congress and courts.
All of these laws and safeguards were blithely disregarded and violated. Other than making sure that leaders know they will be punished -- like all Americans are -- when they break the law, how and why does anyone imagine that we can ensure this "never happens again," especially as we simultaneously affirm -- yet again -- that political leaders will be exempted from the rule of law if they do it? What's the answer to that?
UPDATE: The opening address of Robert Jackson at the Nuremberg Trials is undoubtedly one of the most important speeches of the last century. It established the basic precepts of Western Justice. War crimes, Jackson observed, are such that "civilization cannot tolerate their being ignored, because it cannot survive their being repeated." And, contrary to the blatantly self-contradictory claims from today's Washington elite, he pointed out that the only way to ensure they don't happen again is through real accountability and punishment:
The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power . . . .
It's irrelevant whether crimes rise to that same level or are of the same magnitude. These were principles of justice that were supposed to endure and govern how we conducted ourselves generally, beyond that specific case. In fact, Justice Louis Brandeis, 20 years earlier, observed that it's probably more important -- not less -- to enforce the rule of law when government leaders commit crimes than when ordinary Americans commit them:
In a government of law, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.
We haven't just forgotten these principles. We're deliberately -- consciously -- choosing to renounce them.
UPDATE II: At Talk Left, Armando points out one other towering, destructive flaw in Marcus' "logic" -- logic which, I want to re-iterate, is worth examining only because it's the predominant mentality in the Washington establishment. As Armando writes:
[Marcus] claims her ambivalence stems from "How much can and should government infringe on personal privacy and individual liberties in the name of guarding against risks to public safety? What should be the role of criminal law when government officials overstep permissible bounds in the name of national security?"
The answers to these questions are so obvious that it strikes me again that Ms. Marcus is providing us the question 'is she an idiot or a malevolent dissembler?' Those questions are answered by the laws we make. This is called democracy Ms. Marcus. The permitted level of government infringement on liberty is that which our laws and Constitution allow. No more. If we wish to give away our freedoms, we do it by lawful means. To grant the Executive Branch the power to determine which laws to follow is precisely what the Founders fought against.
Why does that even need to be pointed out? We already weighed the competing considerations between freedom and security and then enacted laws which authorized certain behaviors and criminalized others. If that balance should be altered, the solution -- in a society that lives under the rule of law -- is for the laws to be changed democratically, not for political leaders to decide at will and in secret that they will break those laws and then argue after the fact that the laws they broke were bad ones. Political leaders aren't vested with lawbreaking power. To the contrary, the Constitution explicitly requires that they "faithfully execute" those laws, not violate them at will.
Isn't this all so painfully basic? When the predominant Beltway argument is stripped of euphemisms, it amounts to nothing less than the claim that our political leaders should be -- and are -- free to break our laws. And that's the system we've adopted. It's why Dick Cheney feels free to smugly admit in public that he authorized these war crimes. He knows that the Ruth Marcuses of the world will intervene to defend him. Still, it's one thing to argue that American political leaders should have the power to commit crimes. It's another thing entirely to advance the insultingly deceitful and Orwellian claim that doing so is necessary so we can focus on preventing similar lawbreaking in the future.
81 Comments so far
Show All.It is beyond sad that this conversation has to take place. It is almost unfathomable to me how someone, anyone can determine that laws are subject to opinion outside of the proper venue for that determination, the courtroom.
I am reminded of Nixon's claim that "when the President does it it must perforce be legal". That was and is an egregious opinion from one who must now be judged to have been unfit to hold that high office. There can be no greater service to this nation that our newly elected President could perform than investigating, and if found necessary, prosecuting those within the Bush administration who broke our laws. No matter who or how high the crime is found to go.
"When Fascism comes to America, it will be wrapped in the flag, carrying a cross." Sinclair Lewis, "It Cant Happen Here" 1935
.
We see things, not as they are, but as we are.
Anais Nin
ardee:
I agree with your first two paragraphs, so I don't need to repeat them. I think everyone should jump down to Marjorie Cohn's article after reading this, if they haven't done so. Marjorie Cohn, "Cheney Throws Down the Gauntlet..." (Do you think the holidays make some people act more obnoxious in their comments? This is, perhaps, my first winter holiday season on CD. ) [I deleted the rest of this comment on language and disability, having found your answers on the Cohn article comments.]
.I cannot help but wonder what sick motivation brings you here. It certainly is not to help, or to find commonality to move forward, but only to demean and diminish. Your every effort here points ,not to a philosophy, not to a path, but to insult and petty ravings.
I truly feel sorry for such as you, you must be a very,very unhappy and lonely person, who the heck could stand your negativity for more than a moment or two without an overwhelming urge to escape.
I would urge you to seek help quickly, perhaps you might salvage something, anything of your wretched little life. This is the best advice I have for you and I will certainly ignore your wretched excess in the future, as so very many already seem to do.
.
We see things, not as they are, but as we are.
Anais Nin
Sioux Rose
ARDEE: I, too, second your motion. The negativity and blame is directed at the wrong target. I'd like to see Ms. Serena play a Rachel Corrie part if she's so sure that aggressive protest would make a difference in our nation today, or start her own news channel since she seems to think it requires little more than the snap of our fingers to awaken our fellow citizens who've grown dull on the false news delivered to them by a media they trust to provide them with NEWS.
The usurpation of the American government is a complex and difficult matter not easily untangled. The fates appear to be acting to undermine the power structures, but the military bastion is a fierce one in this homeland, and it has of late, turned its considerable surveillance apparatus (and one standing army of note) towards peaceful domestic citizens. If you're into S & M and think getting tasered might be a fun way to spend an afternoon, by all means, start your own parade. Otherwise, prayer might be more fitting since how the U.S. giant falls, could impact lots of smaller nations and their equally distraught citizens.
WE did not go along with these polices and WE are not profiting by them. And given the likelihood of reincarnation, lots of white people today were formerly of darker hue and vice versa. Since we're all in this thing called life together, it makes sense to equalize the playing field and allot the greatest measure of benefits to all, rather than project hatred towards one another on the basis of our external differences. The health and sustainability of the planet relies on as much.
Sioux Rose
SERENA: I bring MY particular brand of knowledge to this forum as do others. YOU project your own ego-based distortion onto what I say. You once referred to me as the "phoney astrologer," but this phoney has been published by The American Federation of Astrologers, has lectured in Asia and parts of the U.S. & Caribbean, currently has magazine articles translated on a regular basis into Spanish, has taught at a number of community colleges, hosted her own television program for over 7 years, and done a lot of radio. With those credentials I have MORE than earned the right to share a perspective cordoned off through most of mainstream media. And I do it out of altruism, knowing that we all benefit from the widest pool of exposure to knowledge. And knowledge comes in far more shapes and sizes than the sometimes barren-realm of cold logic would allow. Anyone who holds credentials IN my field is welcome to challenge me. Others are not familiar with the language, nor have they walked in my shoes to experience the transformative things I have witnessed. I have studied mystics and masters, traveled to many lands, meditate and practice Yoga, and while I am paid for counseling (though far below the price many charge); much of what I have done has been done without remuneration. In addition, I have self-published 5 books because the best things I write are considered "not commercial enough" by the gatekeepers of modern culture. Thus on a pitance of a past salary I still managed to finance projects I believe could lift others' minds.
If you stopped attacking, you might learn something. And if you stop treating those of us in this forum as your personal enemies (wouldn't your responses be more fitting for a right-wing website?), then maybe we can find not only tolerance, but mutual respect. I am willing. Can you cast down your sword, too? Happy holidays.
.Thank you for the comments Ms. Rose. One can see by the responses that this poor befuddled and confused woman hasnt the faintest clue as to the deep truth of your final paragraph.
At a site where concerned folks come together to explore differences and find commonalities she arrives to insult everyone and anyone, to cloud and make less possible any merging of views. She is undoubtedly beyond any reaching out by anyone here and thus must simply be pitied for her wasted life. Also ignored as best as one can.
.
We see things, not as they are, but as we are.
Anais Nin
'you have never left the sandbox of elementary school'
'zionist princess'
'Infantilism was also one of Nin's most prominent traits...'
'Nor do they deserve the genocide that you are promoting'
'You are a child left behind'
If you cannot refute my arguments, why not educate yourself to the point where you at lest GRASP them.'
Making friends and influencing people again, eh Serena? Six sentences, six insults. Well done. But why don't you take some of your own advice?
signed,
tar baby
Again failure to put these war criminals on trial will show to the World the TRUE nature of America.
If political leaders like a Barack Obama or a Nancy Pelosi can get away with NOT proceeding with Criminal charges, then it can only be because there not enough pressure to do so from the American voter.
If Criminal Penalties Are Removed, What Will Deter Lawbreaking by Political Officials?
Good old fashioned frontier vigilantism. They're bringing it onto themselves.
-- EKATON --
"it's one thing to argue that American political leaders should have the power to commit crimes."
The politicians already have power enough to commit huge crimes. The ones with complete power have enough to be immune from prosecution too - the same who configure the laws and the courts.
Take power away from them. The constitution needs dusting off before justice can be served.
Obviously, we don't want people in authority positions to break the law. But we also don't want to tie their hands behind their back by constantly threatening them with the law. For ordinary, average people, the law shouldn't be flexible, but when a person is endowed with a responsibility as great as protecting the safety of 300 million people, we should give them leeway. Has anyone seen HBO's "Generation Kill"? It's like with soldiers and the R.O.E., some things are better treated as guidelines, because of the extremity of the situations to which it would be applied. There will be times to prosecute and other times when enforcing the law would only result in a miscarriage of justice. It seems to me that if one wanted to, they could prosecute any 20th century US president for some violation of the law. Is that the kind of society we want? One where, say, President Trueman couldn't end WWII, because he would be too afraid if he used nukes he wind up being prosecuted for war crimes? The law is good and useful, but it has it's limits. For example, if international law was followed precisely as it is written, I doubt one could find a single war that could not be judged to be illegal by some standard.
Like the pundit described in the original article, your arguments are self defeating. Starting a war is and should be illegal. And those who violate that law by starting a war should be prosecuted. Funny you feel that people who hold government positions should be above the law or have it flexibly applied. Yet you feel it should be threatening and never flexible when applied to the 'ordinary' people. A completely understandable fascist position, yet incompatible with the words: 'A government of, by, and for the people'. When I'm in the poorest parts of D.C. or in the baloney of congress, I see no no difference in the people except maybe for the price of their clothes. They are equally 'ordinary, average, people'. Oh, there is one difference in the groups I mentioned that I did notice though. The bootlickers don't kneel so quickly to the former group.
Sioux Rose
Our man from (Joe) Hope may politically "pimp" for Obama, but he's what John Dean would term an authoritarian through and through. These people seem to have something almost akin to a genetic blindspot when it comes to their granting all sorts of powers (those cautiously and ingeniously balanced among 3 co-equal governing branches to ensure that we did not permit any tyrant rule of our land as was the long & painful experience of most European lands) to singular authority figures. I think it stems from the "big daddy in the sky" paradigm taught by the 3 patriarchal religions. So you get someone with a moral deficit as glaring as a blackhole simply stating he's taken Jesus as his savior, and the churches give him carte blanche to go on a global killing spree? In any sane society, he'd be tried as a serial killer, not championed in the so-called holy halls and hollows of religion!
.Quite insightful if I may say so. I have puzzled the enigma that is that poster. I wonder whether one could possibly be so naive as to believe such as he continually posits, whether he is a genuine naif or something a bit more ( or less).
To state that someone in power is above the laws of the land RATHER THAN CHARGED WITH THE ENFORCEMENT OF THOSE LAWS is such a horrific philosophy, flies directly in the face of all the evidence of recorded history, and would seem to betray a motivation or agenda of which I remain unaware, or paints a portrait of a man I'd rather not comment upon.
.
We see things, not as they are, but as we are.
Anais Nin
Sioux Rose
ARDEE: The person given to independent or critical thought (you, me and many in this forum) has a difficult time PENETRATING the MINDSET of those that truly do believe that IF the LEADER does it, it MUST be right; that the leader deserves our respect, and it is a form of patriotism NOT to second-guess the leader. To them, democracy is a brand name like America. The idea of the 3 branches ingeniously designed to counter-balance one another never enters the picture. To them, the thought that history might reveal corruption on the part of a previous leader, gives them no pause to consider the SAME may be NOW operating.
I have been dating a younger man from such a family and I might as well be Diane Fossey living among the apes (consciousness-wise). I can't even talk politics with him as he sees my beliefs as DANGEROUS and once threatened to TELL THE AUTHORITIES about my opinion of this president. When people are raised in backgrounds that include strict church attendance from a tender age, they really mistake religious devotion for citizenship and can't differentiate between faith and reality. They are SCARY and don't realize that their psychology is by nature anathema to a healthy democratic state!
PERFECTLY stated!
it is true that the mythical "good war" of world war 2 - naming the USA as the leader of Goodness -- was itself just a result of PREVIOUS meddlings and imperial contests...granted that by the time the second world war was waged - hitler and all the evils that war produced was already present -- the US participation IN it was not about as "goody, goody" as is taught in history. it had as MUCH cynicism about it as anything -- namely -- to ensure that the chaos of war and its aftermath would produce EXACTLY the kind of global dominance of the "ONLY SUPERPOWER" in the world -- following UP on where HITLER FAILED!! and if necessary - indeed, INTENTIONALLY -- do so WITH wars!!!
where hitler would fail -- and be TOO OBVIOUS -- the USA was going to do it "better"!
.Some excellent and perceptive commentary on Mr. Hope's clumsy propagandizing efforts. I would only add that his reference to the mini series "Generation Kill" is rather amusing as well as it was a very powerful criticism of war in general and this particular war in particular.
.
We see things, not as they are, but as we are.
Anais Nin
N...N...No...c...c...comment.
Arry:I want all to know, your comment to joehope came online first, and I thought mine would be under yours, which is so perfect... I couldn't resist making a comment.
joehope:Don't call me/us when "somebody in authority" puts you in jail and no habeas corpus, to get you out.
Joehope, I cannot believe such twisted logic
"we also don't want to tie their hands behind their back by constantly threatening them with the law"
I think we do.
Joe, the other.
"For example, if international law was followed precisely as it is written, I doubt one could find a single war that could not be judged to be illegal by some standard."
please explain why this is a bad thing???
Sioux Rose
It seems to me that persons like Ruth Marcus understand that if they are to keep their jobs (and this is the journalistic/literary equivalent of "Just following orders") they have to find creative ways to protect their "bosses." The media has been in on all the fixes and continues for the most part to protect the perpetrators of an illegal invasion, illegal domestic wiretapping, immoral redistribution of wealth through covert and evident (the latest giveaway) policies, undermining of major departments... like Justice, etc. We all know the list. As a writer, she's using poetic license to try to make a thing seem like other than what it is. Old fashion deceit, evident criminal wrongdoing on the part of high officials leaves room--for the ambitious journalist--to embellish.
I am quite sure she knows that breaking the law = breaking the law, but she's showing a loyalty to her job niche more than the U.S. or its people. Most persons in decent journalistic positions today (at least in mainstream media) are acting in similar fashion. Fortunately for us, commondreams culls writers from a good cross section of publications. And we get some real news and views as a result. To the average MSM listeners, hearing someone intelligent present "the attorney's opposing argument" makes for cognitive wiggle room. They wonder, "she sounds smart, could she be onto something. Gee. Now I see why my great leader had to bend the law to protect me. I think I'll give him a pass."
And the same goes for the mentally deranged money-mongers responsible for stealing as much as possible regardless of the pain and suffering inflicted upon their victims. The reason most of do not rob banks is because we know the FBI catches over 90% of them and the consequences are harsh. If the sick, twisted lying "Wall Street" thieves knew there was a high probability of capture, conviction and hard jail time, the Madoffs of our world would be few and far between, not the norm, as it is today.
And even that scumbag is treated as if his crime were nothing more than a few unpaid speeding tickets - one count of fraud and house arrest only at night in a $7 million 'apartment.'
Yup - that will surely scare the living shit out all the other financial sector greedmiesters bank robbers.
The average actual bank robber steals $5,000 and receives an average sentence of 10 years.
Lawbreaking? America's Public (Corporate) Officials have put themselves above any law.
Cheney's Police State is now a Military Dictatorship.
The only thing that can overcome the powers that be is the binding referendum.
-binding referendum-
Okay, I'm all for it, how do we do it?
Ruth Marcus is indeed one of the horde of half-bright infotainwhores who get paid handsomely to spew out the same superficial cant and rationalization that brought us to our devolved status quo in the first place. Like E.J. Dionne, Richard Cohen, Joe Klein, Peggy Noonan, Bill Kristol, Ellen Goodman... well, why waste keystrokes on the endless list of this depraved Greek Chorus gibbering and squeaking from the wings as the tragedy winds on?
The corporate commentariat's mushy, equivocal, tendentious explanations and justifications essentially support or ratify the meme that "legal prosecution is 'practically' impossible, ergo unthinkable"; it's a weak position, banal and anesthetic as Jell-o salad; despite all of the elisions and obfuscations, those rejecting the proposition that speedy, rigorous, and comprehensive investigation and prosecution is right, proper, and salutary prefer a mushy "situation ethics" which would intentionally give executives, especially the President, an extra-legal niche or bubble within which the executive can violate, circumvent, or simply ignore the government's own established Laws.
No matter how trusting a citizen may be, and how fervently willing the citizen may be to let an Executive Daddy shoulder the grievous burden of safeguarding national security, a government that incorporates "cells" of anarchy in its highest echelons is a state ruling by fiat. As the Founding Fathers would observe, Homey don't play that. Another way of looking at these extra-legal permissions is to view them as a magic cloak; once a president dons such a cloak, especially when it's the gift of a benighted people, he becomes a king. And there's also a distinct whiff of Divine Right returning from its shallow grave. I fear this aspect is especially tempting and attractive to Bonnie Prince Barack, whose messianic qualities got him where he is today.
The power of the president is explicitly constrained by law. In theory, apart from the million and one ways (and growing!) in which theory is flung down and danced upon in everyday institutional practice, We the People empower a Legislature to enact Laws that conform to our Constitution. The Laws embody and reflect ethics and values that impose absolute constraints, for better or worse.
Thus, in dire circumstances, it is forseeable that putatively efficacious options will be foreclosed to a President because they are prohibited by law, or otherwise contravene legal limits and proscriptions.
Presumably, Laws are enacted to give authorities the widest scope of action in special circumstances and national emergencies or crises. But I find it paradoxical and self-defeating to pursue an approach that essentially gives a president carte blanche when crowded by circumstances.
That is, I reject the premise that it is necessary or desirable to modify the Rule of Law for the Chief Executive or other government ministers to lawfully permit these parties to ignore or freely violate laws "constraining him from real necessities of exceptional circumstance".
To employ Madeleine Albright's atrocious rationalization for US sanctions that resulted in the death of a half-million Iraqi children: "I think this is a very hard choice, but the price--we think the price is worth it."
In this context, the "hard choice" is to recognize that the President's hands, and the hands of political and military authorities, will and should always remain tied by legal constraints.
As we have seen, the opposite policy-- placing the executive above the law, and able to ignore, defy, or interpret the law as the executives see fit in any situation deemed by those selfsame executives to be absolutely necessary due to exceptional circumstances, inevitably results in the executive going berserk, and sliding down the slippery slope to autocracy with abandon.
I admit that this is a tough sell in a culture in which the worship of the Golden Calf of "Pragmatism" has leached out and corroded the concept of "integrity" in the highest sense of the term; notwithstanding that our incumbent-elect is triumphantly riding that Calf as if it were a Mechanical Bull, with the onlooking crowd going wild.
Integrity, whether personal or national, implies a recognition of "quaint" values such as "honor" and "truth"-- all largely forgotten or misunderstood, and poured off as mere effluvium in the fouled bathwater of "ideology". Instead, our stable of Highly Regarded media hacks grind out sausage composed of a preponderance of rancid fatty platitudes from the dregs of popular psychology and political science, and bone fragments of blithe disinformation and cliché-- well-seasoned by the organizing buzzwords seeded into public discourse every four years: today's Secret Word is "pragmatism".
· Yr Obd't Servant
Sioux Rose
OBEDIENT: This is one of the best responses anyone has ever placed on the CD posting thread! Your choice of words to reflect the compromised place law has been put in is truly sterling! I think this response belongs in EVERY major newspaper's "Letter to the Editor" section. Bravo, sir!
BORN FREE MAN: Excellent point about where was the oversight (SEC).
CATHERINE: I share your grief and passion. It's almost as if the American public has been conditioned to EXPECT no redress for crimes of state. So much has just been allowed a free pass, that one grows numb from the daily dose of injustice and atrocity.
ED: Well layered interpretation of the "case" before us all.
HOYTDOUGLAS: I agree. The church has MUCH to answer for in granting these liars and murdering thieves a fallacious cover in Spirit.
EARTHIAN: Very interesting, law as the antidote to war, as opposed to our usual considering of peace (to occupy that side of the proverbial equation).
Don't forget that the American public is dumber than a sack of door knobs.
The American public has very low moral character. They don't understand or appreciate that the lack of prosecution promotes more and greater lawlessness by the political elite. The churches, who's job it is to teach moral behavior, support the ruling elite and their criminal ways.
If there is a lesson here, it is that the American public does not deserve, nor have they earned the rights to which they lay claim.
His loss shall be Felt.
· Yr Obd't Servant
I doubt that anybody has not seen people act exactly as you describe, and when they think their Uncle Sam is watching over them, they become even more cowardly, vicious, and stupid---all that is born of laziness.
Wait until enough of them find out how they have been used. In the most difficult extremity-maybe only then- they can find their kindness, courage, and genuine spirituality.
Or perhaps a little light goes on that says, "Blame the liberals and foreigners."
this is MORe and more what seems to be the case:
and the words of Benjamin Franklin are becoming TRUER and TRUER by the day: and one might predicate a word Franklin used "security" -- to ALSO mean EVERYTHING that americans "work so hard for" - such as to INCLUDE "security of MONEY, COMFORT, SPACE, living the *american dream*, the having of THINGS, and TOYS, and everything the LUST for OWNING things desires, the SECURITY to GET whatever one wishes. the SECURITY of knowing that *I'm getting MINE*....." -
":THE NATION THAT GIVES UP ITS LIBERTIES -- FOR THE SAKE OF SECURITY, NO MATTER HOW TEMPORARILY -- DOES NOT DESERVE SECURITY NOR LIBERTY".........
"should this nation fall...it will not fall because of foreign enemies or threats, real or imagined. it shall fall because the people are corrupt".
hoytdouglas "Don't forget that the American public is dumber than a sack of door knobs". The premise of that type of thinking is the cause of all our nations problems. It justifies elite rule. The American public is kept dumb because our nation no longer has an honest civic press. I'll trust a properly informed public over elitist rule any day.
The only question here should be do they stand trial together or separately.
If there is a question about their being prosecuted we had better get used to living on our knees. That's where we will belong.
Don't talk about congress having no guts. They will do exactly what they are told by us peasants, but it must be loud. Our opinion is the only thing of ours they DO care about. If they get enough letters they will turn their backs on their rich cronies faster than you can say 'indictment'.
Faust at least got something for his soul. We forfeit ours because watching TV is easier than letting the hired help know what we expect.
Sorry but I disagree to some of your comments. Congress is completely corrupt. People HAVE called in and sent letters and protested. The letters were never answered, the phone calls taken by staff, and the protesters were arrested.
Once elected, congress does what makes congress rich. They could care less about their constituents. We already have an entire White House Administration that each and everyone of them has comitted crimes that not only require impeachment, but many have comitted war crimes, treason and much worse.
When our last congressional election took place the American people voted in the Deomcrats because they wanted the wars to stop. So the Democrats not only gave the President the money he wanted, they piled on more.
We have numerous laws on the books and none of them are any good unless someone enforces them. So when our leaders break the law, and refuse to enforce the laws they are breaking, what do you do?
But rather than complain, how about a means to fix it: http://www.thoughts.com/RedNeckPossie/blog/a-way-to-give-power-back-to-the-people-184665/
Remember when congress agreed that the 700 billion bailout was necessary? There was an explicit agreement that any congressperson up for reelection could vote against the bill. The public outrage was overwhelming. If we could keep it up, we could have a single payer health care plan--despite the money thrown around by drug and insurance companies.
They will ignore us only if they think they can get away with it. I like the site you referred me to. Thanks.
Nietzche - i hope that YOUR greater optimism will win the day. these things are just so depressing because of how RIGGED the entire system is already . but i hope your sense of it is the right one.
This is part of that creep milton friedman's 'unfettered market' system. And the political 'elite' work hard at tricking the people to vote them into office so they surely think they deserve some perks and immnuity from the law is one.
Not all criminals get elected to office but the people that are elected to office most likely become criminals. All we the people have to think about it is, JUST WHAT IN HELL ARE WE GOING TO DO ABOUT IT????!!!! If we hope for some sort of civil justice justice punishing these crooks, we get what we deserve; if we act, we might just get something accomplished. The politicans that WE elected have declared war on us and there are far too many people that don't grap the ramifications of that and what to do about it.
First of all, Greenwald's murder analogy is more than merely apt; it is completely on-target. Bush and Cheney's illegal preventive war of aggression on Iraq is directly responsible for the avoidable violent deaths (murders) of more than one million Iraqis and more than 4,500 U.S. and coalition soldiers. Their ordering torture has resulted in the homicides of dozens, or most likely, thousands of people in Iraq, Afghanistan, and secret CIA prisons worldwide.
Secondly, Democrats such as Senator Jay Rockefeller, Representatives Nancy Pelosi and Jane Harmon, and others were privy to the Bush/Cheney torture orders from 2002 and said nothing, so they are complicit in those war crimes. That explains why Democrats will not seek prosecution of Bush era war criminals: fellow Democrats are among them.
Thirdly, we know the Iraq war is illegal (according to the Nuremberg Tribunals as well as former U.N. Secretary General Kofi Annan), so all members of Congress who not only voted for it but later voted to continue funding it, are complicit in this "supreme international crime" of waging aggressive war.
Law Professor Marjorie Cohn points out, "...the Constitution requires President Obama to faithfully execute the laws. That means prosecuting lawbreakers. When the United States ratified the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby making them part of U.S. law, we agreed to prosecute those who violate their prohibitions."
But we citizens are now faced with the fact that our newly-elected President and Congress will violate their sworn Constitutional oaths to execute the law by refusing to prosecute Bush/Cheney-era war criminals, which we know include some of their Congressional colleagues.
So what can we citizens, who know that the best way to make sure such war crimes are not repeated is by prosecuting these criminals, now do?
I think we will find that President Obama lacks the courage of his convictions regarding the rule of law. It would mean that his own Secretary of Defense, and Speaker of the House would be implicated in support for illegal aggressive war, torture and other abuses of prisoners, and illegal spying.
Will he rise to the heights of principle and honor and courage and think like Nuremberg prosecutors Robert Jackson and Ben Ferencz? I hope so, but I doubt he will appoint a special prosecutor, or even a truth and reconciliation commission.
But I hope he will.
Greenwald's article is typical of his work: thorough and principled. His thinking is a gift to the progressive cause.
The opposite of war is not actually peace, but the rule of law. Greenwald gets this.
For more information about Nuremberg, besides Robert Jackson's site, is Ben Ferencz's site.
http://www.benferencz.org
The only way to reinstitute the rule of law is through criminal prosecution. Otherwise there are no consequences, and once another Republican gets in power it is all over.
> The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power . . . .
Actually that is not the common sense of mankind.
The idea that law should apply equally to all was the invention of Genghis Khan in the twelfth century. It lasted 100 years, but eventually resurfaced in England.
So this is not a natural situation. Effort is required to maintain the rule of law. It doesn't happen on its own, rather the opposite.
Exactly right. The argument is always made (as apparently Obama has made) that we must avoid devisivness and the apearance of partisanship. That is a short term balm but the long term result is abusses so politically devisive that they threaten to tear the nation apart.
Further it should be noted that most criminals are not thinking people whereas the leaders who perpetrait crimes are fully aware of their actions and the consequences. For that reason if for no other they should be held to higher standards that a common thug. The crimes commited in high office have a much more destructive effect on the world than burgelary or battery.
> The argument is always made (as apparently Obama has made) that we must avoid devisivness and the apearance of partisanship.
The Paula Jones case sure made a joke of that.
One rule for me, another rule for you.
Heads I win, tails you lose.
The practice of true democracy comes with the public understanding that those in power can never be trusted, period.
Our whole terrible state of national affairs is due to the lack of public faith in participatory democracy. In the God we trust motto, it is too often taken by the public to trust those who God has put in power.
But in a healthy democracy, we the people must constantly choose to know, which is what makes CommonDreams such a powerful website. Although sometimes I wonder about some postings. I guess this proves that the public understanding of democracy is a constant challenge.
Its going to take the rich and the elite to bring the law back to Washington. Why? They have the most to loose by supporting or defeating a rouge government that only has loyalties to the highest bidder of the day.Both the Republican and Democratic party's, all elected officials must be punished by law when laws are broken.
Shame on all of them, for thinking that the Constitution of America is a bunch of outdated laws stopping American Capitalism from going Global.
Take a good look at our financial crisis, caused by arrogant elitism, by those who know whats best for all of us.
And now , all top dogs in upper 30% have been bitten hard financially. Where is the out cry for investigations?
How could the SEC not have seen the Madoff ponzi scheme brewing.What, the SEC doesn't do audits of the books and bank accounts.
And as far as I'm concerned, banking has become nothing but armed robbery, right up to the bailouts.
In the famous words of Center Phil Graham " Americans are a bunch of wieners"
The Senator who has done so much for we the people:
spearheaded efforts to pass banking deregulation laws, including the landmark Gramm-Leach-Bliley Act in 1999, which removed Depression-era laws separating banking, insurance and brokerage activities.
Gramm was one of five co-sponsors of the Commodity Futures Modernization Act of 2000[7]. One provision of the bill was referred to as the "Enron loophole" because the House Agriculture Committee drafted it and it was later applied to Enron. Some critics blame the provision for permitting the Enron scandal to occur.[8]. Gramm's wife, Wendy Lee Gramm, was on the board of directors of Enron when it collapsed, giving the legislation its moniker, and she was named in many of the subsequently settled lawsuits.
Some economists state that the 1999 legislation spearheaded by Gramm and signed into law by President Clinton — the Gramm-Leach-Bliley Act — was partly to blame for the 2007 subprime mortgage crisis and 2008 global economic crisis.[10][11] The Act is most well known for repealing portions of the Glass-Steagall Act, which had regulated the financial services industry. Gramm responded to such criticism by stating that he saw "no evidence whatsoever" that the subprime mortgage crisis was caused in any way "by allowing banks and securities companies and insurance companies to compete against each other."[12]
The Washington Post in 2008 named Gramm one of seven "key players" responsible for winning a 1998-1999 fight against regulation of derivatives trading.[13] Gramm was later critical to passage of the Commodity Futures Modernization Act of 2000, which kept derivatives transactions, including those involving credit default swaps, free of government regulation.[14] The Act, it should be noted, passed the House by an overwhelming majority and passed by unanimous consent in the Senate, though it was introduced on the last day before Christmas holiday and never debated by either congressional body. [15]
N0 PARDONS, NO IMMUNITY, RESTORE THE RULE OF LAW AND THE CONSTITUTION OF OUR LAND.
bornfreemen