The violations of law by Bush administration officials and others who acted in concert with them have been justified by some, including Dick Cheney and John Yoo, on the basis that the President is above the law because he is the head of the so-called "unitary" executive branch of government. According to these proponents of limitless executive power, the President alone decides the range of his power and the application of laws passed by Congress and treaties ratified by the United States Senate. The result of that approach would be that the rule of law is no longer extant.
Of course, that view of executive power is completely at odds with our Constitution and the system of checks and balances that has served our republic so well since its founding. Similarly, the failure to repudiate that view and to hold accountable those who have violated the law would be subversive to our constitutional form of government, our system of checks and balances, and the rule of law. Just as the rule of law prohibits powerful people from escaping the reach of our laws, so too does it forbid people in positions of power, such as the President or the Attorney General, from deciding, for the sake of political convenience, that the law will not be applied to some who have violated it.
The principled way of moving forward as a nation that adheres to the rule of law is for you to appoint a prosecutor to investigate whether government officials or others violated the law in connection with aggressive war, warrantless wiretapping, torture, extraordinary rendition, the illegal arrest and indefinite detention of US citizens without due process, the issuance of signing statements purporting to overrule laws passed by Congress, the creation of an assassination program, and the failure to inform members of Congress of intelligence programs or covert actions. Then, if a determination is made that violations of the law occurred, appropriate legal action should be taken.
Your decisions and actions will define the course of our nation's principled commitment to our Constitution, domestic law, and legal obligations under treaties, which, along with the Constitution and laws passed by Congress, are the supreme law of the land, pursuant to Article VI, Section 2 of the Constitution.
One's commitment to principle is demonstrated most clearly under difficult circumstances. We recognize that some people would forsake the rule of law because of a desire to achieve other political objectives and to avoid distractions and partisan divisions. However, an unrelenting commitment to the law should never be demeaned as a "distraction" or as a partisan matter. Your principled application of the law, particularly under present circumstances, will be viewed for many generations as a crucial point in the history of a nation truly committed to equal justice, high moral principle, and the rule of law.
Respectfully,
* Daniel Ellsberg
* Bruce Fein
* Andy Jacobs
* Paul Rogat Loeb
* Graham Nash
* Terry Tempest Williams
* Bill McKibben
* John Nichols
* Robert Feuer
* Jeremy Pikser
* Rocky Anderson
* Mimi Kennedy
* Naomi Wolf (
* Robert C. Fellmeth
* David Swanson
* Ralph Nader
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Footnotes
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1. The rule of law, as a safeguard against arbitrary governance, was provided for in the Magna Carta in 1215, which made it clear that King John, who previously governed any way he saw fit, was constrained by rules that applied to everyone alike. Our Constitution, the bedrock of our system of government, is founded on the principle of the rule of law. It spells out the powers of each branch of government and limits what government and government officials can do.
For our constitutional form of government to survive, and for the rule of law to prevail over the rule of dictatorship, each branch of government must be constrained by the rule of law, and by the parameters of its constitutionally designated powers. Each branch of government must jealously protect against the other branches exceeding and abusing their power. Members of the Bush administration endeavored in a systematic and dangerous fashion to extend the powers of the president in abusive, dictatorial fashion, completely at odds with our Constitution and the rule of law. Members of the Bush administration claimed extraordinary, unprecedented executive powers that they believed exempted the president from laws passed by Congress, from treaties to which the United States has bound itself, and from protections of our individual freedoms set forth in the Constitution. They pursued such authoritarian power, completely at odds with the rule of law, by asserting what they called a "unitary executive" power and a supposed "inherent power" that allows the president to make up the rules, even when contrary to what Congress and our Constitution have required.
2. President Obama has made it clear that he may qualify his allegiance to the rule of law because of his desire to "move forward," even perhaps by not applying the law to war criminals and others who broke the law during their service in the Bush administration. For instance, he stated as follows during an interview on January 11, 2009:
President Obama: "We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering."George Stephanopoulos: "So, no 9/11 commission with independent subpoena power?"
Obama: "We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward."
ABC News, This Week With George Stephanopoulos, January 11, 2009.
By the assertion of the "state secrets" doctrine, President Obama's administration, through the Department of Justice under your leadership, has continued the Bush administration's efforts to emasculate the courts as a branch of government intended by the Constitution to provide a vital check on abuses of executive power. See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992 (9th Cir. 2009). The Obama administration has also continued to threaten withholding the sharing of intelligence with the British government if the U.K. High Court discloses information about the torture of a detainee held by the United States. Commenting about the implications of the Obama administration's threat on the rule of law, the U.K. High Court stated as follows:
Moreover, in the light of the long history of the common law and democracy which we share with the United States, it was, in our view difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters. Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials or officials of another State where the evidence was relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.
Mohamed v. Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin), para. 69 (emphasis added).
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