Is the Rule of Law Nothing?

For transparency and democracy, yesterday's release of four additional Justice Department memos is a good thing.  For the rule of law, they are a continuing reminder of the dangers of reading the law out of the body of applicable law.  A whole tradition of Western Enlightenment was formed around the idea of the rights of man and the "opinions of mankind," which have all spoken clearly against torture as one of the chief evils revolutionary political reform was meant to correct.   Cesare Beccaria's 1764 On Crimes and Punishments, widely cited in its time, argued against the use of pain as "the test of truth, as if truth resided in the muscles and fibres of a wretch in torture."  These newly released memos are written as if this tradition, which runs through our own governing experiment as well as numerous international human rights instruments, all focused on protecting the dignity and autonomy of fellows humans against the abusive exercise of power, expressed mere technicalities to be evaded by clever parsing of treaty and statutory language.  The memos are also written as if principled constraints were not meant to constrain.

The opposition to releasing these memos has apparentlybeen fierce, leaving the Obama Administration trying to chart a middle course. Release the memos, but protect CIA personnel who relied on them from prosecution.  Obama’s statement includes the following:  “But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence.”  Is that true?  Nothing will be gained?  As his statement further points out, the policies, practices, and legal opinions reflected in these memos have (largely) been disavowed, but the rule of law is not only forward looking.  The rule of law is often about “laying blame for the past.”  So is the suggestion that vindicating the rule of law is nothing?  Let me add one thought to suggest otherwise.

I think the Obama administration is certainly right to disavow the practice of torture and the legal opinions that described the practice as something else (waterboarding as an “acute episode” that “does not inflict physical pain” – from Bybee’s August 1, 2002 memo).  To fail to lay blame for the past, however, renders the rule of law subject to the rule of the executive office.  When the next administration takes over, they could reverse course again, reinstating the Bush administration positions.  The Republican-led stand against Harold Koh and Dawn Johnsen as the new lawyers who will reshape the legal environment can be understood to be about supporting the prior Administration’s views on interrogation.  If constitutional and legal constraints constrain, however, only when the President chooses to be bound by them, they are no constraints at all.  The rule of law requires that constraints operate precisely when we are tempted to evade or transgress the boundaries they erect (also see here).   I do not mean to suggest that any attempt to lay blame for the past must automatically succeed.  The rule of law does not guarantee particular outcomes.  It requires our commitment to following where its outcomes lead, and that is a commitment President Obama should affirm.