Our 'Government of Laws' Is Now Above the Law

"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.

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.

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?

Yet last week Attorney General Eric Holder, speaking for the administration with an alarmingly casual nonchalance, traduced the whole notion of a nation of laws.

First, the attorney general responded to Sen. Rand Paul's inquiry as to whether the president claimed the "power to authorize a lethal force, such as a drone strike, against a U.S. citizen on U.S. soil and without trial." After noting that the United States has never done so and has no intention of doing so, Holder wrote that, speaking hypothetically, it is "possible to imagine" an extraordinary circumstance in which that power might become "necessary and appropriate."

This triggered Paul's now-famous 13-hour filibuster against the nomination of John Brennan to head the CIA, as Paul (R-Ky.) promised to "speak until I can no longer speak" to sound the alarm that "no American should be killed by a drone on American soil without first being charged with a crime" and being found guilty in a court of law.

In response to the growing furor, Holder sent Paul another letter, stating clearly that the president has no authority to use a "weaponized drone" against an American in the United States who is "not engaged in combat."

But that, of course, only begs the question. The country is waging a war on terrorism that admits no boundary and no end. Now Holder is saying that the president has the authority to kill Americans in the United States if they are "engaged in combat." No hearing, no review, no due process of law. For those who remember how the FBI deemed Martin Luther King Jr. a communist, and how the national security apparatus termed Nelson Mandela a terrorist, alarm is surely justified.

Then, the attorney general, while testifying before the Judiciary Committee, was challenged by Sen. Charles Grassley (R-Iowa) about the glaring absence of any indictments against leading bankers or big banks coming out of the financial collapse. Holder responded that, essentially, these banks were too big to jail.

"The size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy," he said.

This astounding admission of what clearly has been administration policy helped spur newly elected Sen. Elizabeth Warren (D-Mass.) to grill regulators at a separate banking committee hearing. Asking why there was no indictment of the big British bank HSBC, which settled after after an investigation found that it laundered billions of dollars from Iran, Libya and drug cartels despite repeated cease-and-desist warnings, Warren expressed the public's exasperation.

"If you're caught with an ounce of cocaine, the chances are good you're going to go to jail. If it happens repeatedly, you may go to jail for the rest of your life," Warren said. "But, evidently, if you launder nearly a billion dollars for drug cartels and violate our international sanctions, your company pays a fine and you go home and sleep in your bed at night -- every single individual associated with this. And I think that's fundamentally wrong."

Taken together, the attorney general's astounding claims undermine the whole notion of a nation of laws.

The national security state, operating under the president's power as commander in chief, now claims the right to make war or peace, and to kill an American citizen even in America without a hearing.

The 12 largest U.S. banks -- "systemically significant financial institutions," in the words of the Dodd-Frank reform legislation-- control 69 percent of all financial assets, according to the conservative president of the Federal Reserve Bank of Dallas, Richard Fisher. As we have seen, they have the capacity to blow up the economy from their own excesses. Yet they now can apparently trample the laws with impunity, confident that they risk, at worst, an infrequent fine that is the equivalent in relation to their earnings of a New Yorker paying a parking ticket.

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?

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?