When the Law Goes Flat

Amidst all the outrages of the Bush Administration -- raiding the Federal treasury, starving education and social services, trashing the environment, launching an aggressive war -- it is all too easy to overlook the erosion of the rule of law. Yet the law is the institution that most immediately affects us all, because the law, as established by the founders of our nation, protects us all from the reckless power of abusive government -- from what Hamlet called, "the insolence of office."

To be sure, laws can be petty or even silly, especially in local jurisdictions. Far worse, they can be cruel and unjust when enacted by oppressive regimes such as Nazi Germany or the Soviet Union. But this is not the case in the United States of America. Our laws are founded on our Constitution, ratified with "the consent of the governed," and devised, in the words of the Preamble, "in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty." When our courts are functioning properly, laws judged to be in violation of these Constitutional objectives and protections are ruled null and void.

The protection of the law, and the loss of that protection, is the central theme of Robert Bolt's play and movie, "A Man for All Seasons," which dramatizes the life and martyrdom of Thomas More.  In the play,  More warns his son-in-law:

"[Would you] cut a great road through the law to get after the Devil? ... And when the last law was down, and the Devil turned round on you, where would you hide.., the laws all being flat? This country is planted thick with laws from coast to coast..., and if you cut them down... do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law for my own safety's sake."

Thomas More's offense, which eventually cost him his life, was his refusal to recognize the supremacy of the English Monarch over papal authority. More, a legal scholar, believed that so long as he remained silent, the law would protect him, even from the sovereign, Henry VIII. But when that law was "flattened" as it became subordinate to and a political weapon of that sovereign, Thomas More's fate was sealed.

The fate of Thomas More, and of countless others throughout history who have fallen victim to the corruption of law by the wealthy and powerful, must stand as a warning to all Americans today. For the evidence of the corruption of law in the hands of the present administration and its party is compelling to any who have the eyes to see and the judgment to appreciate the threat. Put bluntly, the Bush administration is literally an "outlaw" regime -- it has placed itself outside the law that both constrains and protects the rest of us.

I will examine five of the many offenses by the Bush Administration against the rule of law: the election of 2000, the unequal enforcement of the law, the violation of international treaties, the infringement of civil liberties, and the attempt through so-called "tort reform" to deny ordinary citizens the protection of civil law.

The 2000 Election:  To begin, we must never forget that this administration was conceived in lawlessness. Thousands of Florida voters were unlawfully "purged" and denied access to the polls. Military ballots postmarked past the deadline were counted. In Miami-Dade county, an official act of ballot counting was shut down by a "yuppie riot" of GOP staff members -- an event as blatantly illegal as the disruption of a trial or of a debate on the floor of the Congress. Yet no one was ever charged, much less punished, for this lawlessness.

Article Two, Section One of the U.S. Constitution explicitly states that "each State shall appoint, in such manner as the legislature thereof may direct, a number of electors." Thus it is the business of the states, as interpreted by the Supreme Courts of the states, to select the presidential electors. Accordingly, the Supreme Court of Florida ordered the continued counting of the ballots, and that decision was upheld by two appellate federal courts. No matter. In a legally indefensible ruling ("limited to the present circumstances"), clearly concocted with the sole purpose of putting George Bush in the White House, five Republican judges on the Supreme Court ordered an end of the vote counting and, in effect, selected the President. (See my "A Day of Infamy," and a collection of legal and journalistic responses to Bush v. Gore: "We Dissent.").

Subsequently, more than 600 Professors of law signed a petition of protest, which included the following:

We are Professors of Law at American law schools, from every part of our country, of different political beliefs. But we all agree that when a bare majority of the U. S. Supreme Court halted the recount of ballots under Florida law, the five justices were acting as political proponents for candidate Bush, not as judges.

The Unequal Enforcement of the Law:   Carved above the entrance to this same Supreme Court, are the words "Equal Justice under Law." Would that it were so. Unfortunately, there are two kinds of "justice." There is one standard of justice for the wealthy murderer with a team of high-priced attorneys, and another standard for the poor murder suspect with the court-appointed lawyer. There is one law for wealthy users of powdered cocaine or oxycontin, and another for poor black users of crack cocaine. There is one law for the corporate executive who fixes energy prices, another for "Grandma Millie" who must pay those inflated prices. There is one law for the Republican donor who cheats thousands of taxpayers of billions of invested dollars, and another for Democratic contributor, Martha Stewart, caught "dumping" $50,000 of stock on an "insider tip." There is one law of perjury for Casper Weinberger, Eliot Abrams and Oliver North, all of whom escaped fine and imprisonment due to "technicalities" and presidential pardons, and another law for President Bill Clinton caught, at last, in a "perjury trap" over a non-material sexual indiscretion.
 

The Violation of International Treaties:  Article Six of the Constitution decrees that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." But not, apparently, to this Administration which has casually ignored and violated numerous treaties at its convenience. The most outrageous has been the violations of the Geneva Conventions in Iraq, and specifically at the Abu Ghraib prison. In a March 6, 2003, memo from the Pentagon "working group," we read: "In light of the President's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President's ultimate authority in these areas." Regarding this memo, Molly Ivins wrote:  "Quite literally, the president may as well wear a crown -- forget that 'no man is above the law' jazz. We used to talk about 'the imperial presidency' under Nixon, but this is the real thing." 


Civil Rights:  George Bush's violation of the rights of citizens' is open and flagrant. Until very recently, at least three U. S. Citizens (that we know of) were incarcerated without specific charges, without access to counsel, without expectation of a jury trial -- all this in violation of the Fifth, Sixth, Seventh and Eighth Amendments to the Constitution (the Bill of Rights). Even worse violations of basic judicial rights were visited upon the non-citizens held at Guant