Undermining the rule of law

The United States Constitution makes very little mention of citizens. It mandates that our elected representatives be citizens and that the President and Vice President are citizens, but beyond stating that all "other persons" counted as 3/5 of a citizen.

The blueprint of our representative democracy states, in Article I, Section 9, that:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

One of the biggest fears of the Founding Fathers was the suspension of the Great Writ. There is no mention anywhere in the Constitution that only citizens of the United States are entitled to use a writ of habeas corpus to get into court. Anyone held in any county jail or state prison can file the writ to get his day in court (unless of course the government has decided they want to kill you and restrict your time to file the writ to one year).

The only time the Great Writ was suspended was during the Civil War when President Lincoln suspended it due to the rebellion.

But on Monday the US Supreme Court effectively suspended the writ for anyone held as a so-called enemy combatant in our government's War on the Constitution Terrorism. As Scott Greenfield reminds us, back in 2008, the men (and woman) in black ruled that the detainees in Guantanamo were entitled to the use of the writ to get their day in court.

Those who had been held without being charged lined up and filed. Trial courts granted the writs and ruled, in many cases, that the detainees were being held illegally. One of those detainees was an American citizen, Jose Padilla, who was held in a US Navy brig in Charleston, South Carolina.

While trial courts were issuing rulings upholding the rule of law, the DC Court of Appeals was doing its best to slice and dice the Constitution. Every case that the government appealed was reversed by the appellate court and the standards that a detainee would have to meet to gain his release were raised to a level no one could achieve.

And when the Supremes had their chance to let the appellate court know that it meant what it said, they punted. One could argue that no one's right to file the Great Writ has been suspended - only that the bar for relief has been raised higher for those whom the government says are the bad guys. But, when the raising of the bar effectively denies each and every detainee of their right to review, the right to file the Great Writ has been suspended.

And the Supreme Court is more than happy to sit back and allow the most conservative appellate court in the nation to thumb its nose at it. The Supremes could have but some teeth into their earlier decision, but why bother? It's not like anyone's marching in the streets demanding that the detainees get their right to review. It's not like anyone's going out on a limb arguing that our national principles demand that these men be released from illegal detention.

No one's going to take up the flag of their cause. And that's exactly what the rule of law is supposed to protect - the rights of the unpopular.

Rule of law? What rule of law?

As we approach the end of the year, the World Justice Project has released its Rule of Law Index for 2011. The index is a ranking of 66 nations based on their adherence to the rule of law.

As used by the World Justice Project, the rule of law refers to a rules-based system in which the following four universal principles are upheld:
» The government and its officials and agents are accountable under the law.
» The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.
» The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
» Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have
adequate resources, and reflect the makeup of the communities they serve.

The nine factors considered by the WJP in determining how much a nation adhered to the rule of law are:

1. Limited government powers 
2. Absence of corruption 
3. Order and security 
4. Fundamental rights
5. Open government 
6. Regulatory enforcement
7. Access to civil justice
8. Effective criminal justice
9. Informal justice

Limited government powers looks at the "extent to which those who govern are subject to law." In other words, are those in power held legally accountable for their actions?

Absence of corruption would appear to be fairly self-explanatory.

Order and security look at "how well the society assures the security of persons and property."

Fundamental rights looks at the degree to which the government protects fundamental human rights.

Open government looks to the degree to which the law is "comprehensible and its meaning sufficiently clear, publicized and explained to the general public in plain language..." while regulatory enforcement asks how well regulations are "implemented and enforced."

Access to civil justice "requires that the system be affordable, effective, impartial and culturally competent." Effective criminal justice looks to whether the criminal justice system operates impartially while protecting the rights of the accused and accuser.

Informal justice is a measure of "traditional" methods of resolving disputes such as tribal or religious courts and community-based systems.

The data was gathered by use of a general population poll using a sample of 1,000 people in three cities per country (the U.S. was represented by New York, Los Angeles and Chicago); and by a questionnaire sent to  "in-country practitioners and academics with expertise in civil  and commercial law, criminal justice, labor law and public health."

The United States is grouped together with Canada and Western Europe. Of the twelve nations that make up that group, the U.S. ranked near the bottom, while Sweden and Norway ranked near the top in most categories. This despite our deep seated belief that our nation was founded on the rule of law.

Here are the numbers:

1. Limited government powers... 10th of 12
2. Absence of corruption...  10th of 12
3. Order and security...6th of 12
4. Fundamental rights... 11th of 12
5. Open government... 8th of 12
6. Regulatory enforcement...9th of 12
7. Access to civil justice... 11th of 12
8. Effective criminal justice... 11th of 12

It must also be noted that, when compared with the 66 nations as a whole, the United States ranked in the teens in just about every category; ranging from 12th in open government to 21st in access to civil justice.

Most of the nations in the North America/Western Europe group had poor scores when it came to access to civil justice. Anyone who has ever had to sue someone - or been sued - can attest to the expense involved in getting a case before the court.

The report noted that "there is a general perception that ethnic minorities and foreigners receive unequal treatment from the police and the courts."

For a nation that prides itself on its adherence to the rule of law, the results of the survey are surprising. Over the last 40-50 years we have seen our nation devolve into one in which the power and elite are given free passes for criminal conduct while the poor and those without power are made to pay the price for their transgressions.

It's time we return to the day when no man was above the law.

Book review: With Liberty and Justice for Some

In his book, With Liberty and Justice for Some, Glenn Greenwald blows hole in the myth that ours is a nation in which the rule of law is sacrosanct. From high crimes in the White House to fraud in the financial sector to our two-tiered justice system, the rule of law seems a quaint reminder of the long distant past.

Richard Nixon obstructed justice. Richard Nixon was part of a conspiracy to commit a felony. Richard Nixon should have faced not only impeachment, but indictment, for his acts while in the White House. But Gerald Ford didn't see it that way and pardoned the disgraced former president before the criminal (in)justice system could get its hands on him. Mr. Ford told the public that we needed to look forward rather than backward.

Just try telling that to a prosecutor or judge the next time you appear in court with your client accused of committing a crime (in the past). How far do you think that'll get you?

Oh, but the legacy of Gerald Ford lives on.

You remember the Iran-Contra affair, don't you? You remember how under Ronald Reagan a secret structure was erected that sold weapons to Iran and then took the proceeds and funnel them to the right-wing paramilitaries fighting the Sandanista government in Nicaragua? You remember that the Congress had outlawed the funding of the contras? You remember that little concept called checks and balances - where the President asks Congress for money and Congress decides how much to give and for what?

The scheme was patently illegal and Mr. Reagan was complicit. Yet what did George Bush (the elder) do once Reagan's underlings started getting indicted? That's right, he pardoned them. He shielded his former boss from the scrutiny of prosecutors.

Fast forward to the presidential campaign in 2008. Then-senator Barack Obama exclaimed that he would never immunize the giant telecoms for their role in carrying out President Bush's (the younger) illegal domestic spying plan. He also stated that those responsible for the gross violations of human rights carried out in the aftermath of 9/11 should be brought to justice. But, once the nomination was sewn up, Mr. Obama voted to immunize the telecoms; and, once ensconced in the Oval Office, Mr. Obama blocked any efforts by Congress or the Justice Department to investigate President Bush and his minions for torture and other violations of international law. Why? Because it was more important to look forward than backward.

The President of the United States has the duty to see that the laws of the nation are enforced. He also has an obligation to follow those laws. The idea is that no one, not even the president, is above the law. That's what the whole concept of the rule of law boils down to.

But, in these United States, if you sit in the Oval Office, if you run a major financial corporation or if you have money, power and influence, you are above the law. And that's the ultimate betrayal of the principles upon which this country was formed.

Shooting the messenger

Bradley Manning is not a criminal.

He should be praised for shining a light on the underhanded dealings of our government. Instead, he's facing a court martial.

The material he provided to Wikileaks didn't endanger the lives of any Americans. But it sure as hell did embarrass the government. Through his actions he exposed the ways in which the United States government lied both to the American people and its allies.

The cables and correspondence documented the ways in which our government committed war crimes and violated international law. Our government armed repressive governments world wide and turned a blind eye when the weapons were turned on their own people. Our government bombed civilian targets. Our government tortured detainees who have never been charged with a crime.

We condemn those around the world who act in the very manner our government acted.

Sure, it's a dangerous world out there - it's always been a dangerous world - but that doesn't excuse our leaders from breaking the law. Ronald Reagan, George Bush (the elder), Bill Clinton, George W. Bush and Barack Obama are all complicit in atrocities committed against the poor and powerless. Yet none of them will ever be called before the people to answer for their crimes.