Healing the Law
The Supreme Court of the United States has had two historic encounters with George W. Bush. The first was its decision to stop the recount of the presidential vote in Florida in December 2000 and, in effect, to put Bush in the White House. The second was the series of decisions rendered in June in the cases regarding the detainees in Guant�namo and the two American citizens being held as "enemy combatants."
I was watching television coverage at the moment the Court stayed the Florida recount and witnessed a vote counter lift her hand to examine a ballot and then, when the news of the decision came, drop it, with evident sadness, back onto the uncounted pile. The law, usually seen as a support and foundation of democracy, had in this case visibly stopped it cold.
The decision sent a shock wave through the legal community. Some 673 law professors from 173 law schools signed a statement asserting that "by stopping the vote count in Florida, the US Supreme Court used its power to act as political partisans, not judges of a court of law." Professor Robert Post, then teaching constitutional law at Stanford, wrote that the decision made him feel "shame" before his students. There rose up before his eyes "a searing and disorienting vision of a world without law."
Even Post probably could not have imagined how quickly the vision would materialize. For if the policies of the Bush Administration have exhibited any one constant theme, it has been contempt, visceral as well as philosophical, in domestic as well as foreign affairs, for law. The Administration's distaste for international treaties and laws soon became evident. The President withdrew from the Kyoto Protocol on global warming and the Anti-Ballistic Missile treaty, pulled out of talks to create an inspection system for the Biological Weapons Convention and "unsigned" the Rome statute for the creation of an International Criminal Court. Since laws and legal opinions come into effect only upon signing, the act of "unsigning"-an invention of the White House, with no precedent in the annals of the presidency-seemed to symbolize a world of evaporating statutes.
The deed was one aspect of a comprehensive onslaught, which quickly unfolded, on the very idea of law. Its chief elements were the claim by and for the United States, and the United States alone, of a right and duty to order the twenty-first-century world through the use of America's unchallengeable military force. The vision's essential corollaries were the right to wage preventive war and to violently and unilaterally overthrow other governments. Its goals were to stop the spread (but not reverse the existing possession) of weapons of mass destruction and to remake the world politically and economically in the image of the United States.
The conflict between this vision, correctly called imperial by many of its supporters as well as its detractors, and international law is not incidental but systemic. The ideas of empire and of international law are both ordering principles: Both are means for organizing the world. They are in competition for the same turf. The world can no more be both an imperial world and a world of law than one car can be driven by two people to two places at the same time. Or, to be exact, to the extent that the imperial vision advances, the legal project must be thrown back and vice versa. The essence of law is the establishment of a single consistent standard, which is to be obeyed by ruled and ruler alike. The essence of empire is imposition of a double standard-with one standard for the imperial ruler, another for the ruled. The imperial principles of preventive wars and regime change cannot be principles of international law, because their universalization would bring chaos.
The point, of course, is not that in the year 2000 the world was governed according to law (for it was not) only to be suddenly thrown into disorder by the imperial ambitions of President Bush. Rather a slow evolution, which had made surprisingly good progress since the end of the cold war, toward a more cooperative, lawful world was thrown into reverse by the rise of a rival imperial vision. The title of an article by Richard Perle, chairman of the defense policy board, on the significant occasion of the launch of the Iraq war, summed up what was afoot: "Thank God for the death of the UN: Its abject failure gave us only anarchy. The world needs order." He went on to write, "As we sift the debris, it will be important to preserve, the better to understand, the intellectual wreckage of the liberal conceit of safety through international law administered by international institutions."
The disclosure of the use of torture in America's offshore detention system revealed a subterranean dimension of the conflict between empire and law. Torture is a common product of imperial rule. It is especially likely to occur when imperial violence meets resistance, as it soon did in Iraq, giving rise to the torture at Abu Ghraib prison and elsewhere. Even the refusal of Guant�namo detainees to give information under interrogation was interpreted, well before the Iraq war, as "resistance." Therefore "counterresistance" techniques, in the words of one Pentagon memo, were developed. They included death threats to detainees and feigned threats to their families and suffocation by water torture. On February 7, 2002, President Bush wrote in a secret memo later made public, "Our nation recognizes that this new paradigm-ushered in not by us, but by terrorists-requires new thinking in the law of war." The call for new thinking was soon answered in a stream of legal memos. The Justice Department advised the executive branch that neither international treaties, such as the Geneva Conventions, nor the laws passed by Congress-including, of course, the US Criminal code-could in any way limit a President's right to order torture or otherwise abuse prisoners: "Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President."
These memos were produced in secret. In public, the Administration put forward a claim scarcely less breathtaking in its sweep: it asserted its power to designate any person, including any American citizen, as an enemy combatant and to imprison that person indefinitely without any right to legal representation, or to receive visits, or to file habeas corpus or any other petition before a court to establish innocence. No less than in the torture memos, the Administration was unilaterally asserting a profound change in the permanent structure of US law.
Such was the legal landscape as the Supreme Court faced its second major encounter, in the detention cases, with the man it had made President almost four years before. A question even larger than the legal ones was on the table. The Administration had come to power through an abuse of the lawful authority of the Court. Would there now be any limit to that Administration's own legal abuses? In the period of the Iraq war, other checks and balances provided in the constitutional system had failed: Congress surrendered its war power to the President, and the press, taken as a whole, had become a cheering section for the war.
In its decisions, the Court delivered a firm rebuke to the Administration's imperial conception of the law. It required detainees to have some chance to show their innocence in a judicial forum. Several sentences from the opinions jumped immediately from the legal documents into the newspapers and history, among them Justice Sandra Day O'Connor's declaration that "a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens." Especially notable was the opinion of Justice Antonin Scalia, thought by some to be the Court's most conservative member. In Scalia's opinion, the majority gave the executive too much leeway in the case of Yaser Hamdi, a US citizen captured on the battlefield in Afghanistan. The Court, he said, should not have ordered up some vague, yet-to-be determined habeas-like proceeding in lower courts for Hamdi. Instead, it should either have demanded that the Administration charge him with treason, as the Constitution provides, or let him go.
But more important than the substance of the decisions and the opinions was the fact of a clear, strong, effective rebuff on the otherwise unconstrained growth of presidential power. That this came from the Court that had put Bush in office in the first place added great weight to the decision. The Justices seemed to be saying, "We meant to make you President, not king." Would it be too much to hope that in this decision, a signal has been given that the seeming tacit coordination among Republicans in all branches of government put on display in Bush v. Gore has weakened; that swelling executive power has reached its high tide and now will ebb; that the "conservative" drive to create imperial law, or lawlessness, has run up against a bedrock of republican principle that knows no party name and is honored by the conservatives themselves?
Such a conclusion is no doubt premature. At least one more remedy is needed if the relationship between democracy and law, knocked askew by Bush v. Gore, is to be righted. The body that was silenced in that decision-the American electorate-must deliver its verdict on the vision of a lawless world proposed to it by George W. Bush.
© 2004 Jonathan Schell