Hollow Rhetoric on ‘Rule of Law’

Like democracy or freedom, “the rule of law” has become one of those things U.S. diplomats advocate so repetitively you’d think they could do it in their sleep. When the secretary of state speaks to the American Bar Association, she explicitly links “the advance of freedom and the success of democracy” to the rule of law. When a bad legal decision is made in a place such as Kuwait or Kyrgyzstan, the State Department issues a statement that starts: “U.S. Deeply Concerned About Rule of Law in . . .” Indeed,

President Bush himself has spoken about how “successful societies protect freedom with the consistent and impartial rule of law.”

Yet unlike democracy, which can be parliamentary or presidential or even constitutionally monarchical, the rule of law is not an ideal that is open to various interpretations. The rule of law pretty much means the same, rather prosaic thing in any context. It means that once legislation has been passed by legitimate, democratic institutions, everyone has to obey it, regardless of political party, ethnic group or ability to pay bribes. The rule of law is an ongoing process, not a goal.

But in its way, the rule of law is more fundamental to our national success than democracy or freedom, since without it, neither could exist. You can’t have democracy if the president, once elected, can change the rules. You can’t have freedom if some people are allowed to break the law while others are not. Nevertheless, the idea that everyone has to follow the same rules isn’t especially awe-inspiring or transcendent: We sing about the land of the free and the home of the brave, after all, not the land of the politically impartial judiciary.

In times of perceived emergency, the rule of law’s failure to inspire higher feelings becomes a problem. If you are fighting a life-or-death war on terrorism, it no doubt seems redundant to get a court order before tapping a potential hijacker’s telephone. If you believe you are about to uncover a ticking bomb, it probably feels inconvenient to ask for a warrant to bug the potential bomber’s house, just as it surely feels ridiculous to stop and ask yourself whether you have the legal right to torture the person who might know where the bomb is. But if you don’t ask, and you don’t stop, and you don’t do the petty things the law requires, then over time — as the war on terrorism grinds on, as the trail goes cold, as mistakes are made, as the wrong house is put under surveillance and the wrong person arrested — well, I’m not going to repeat what everyone else has said already.

What also worries me now is that the rule-of-law bores, the people who keep banging on about how all these rules and regulations about torture or tapping matter, may soon come to be seen as the enemies of national security. Let me be absolutely clear: I am delighted to hear that someone has managed to identify so many potential terrorists and extremely pleased that someone thinks something could be learned from tapping their telephones. But we do in fact have a special foreign intelligence court, set up under a special law, that has secret, expedited procedures, carefully designed to allow the FBI to do that tapping legally. What’s so bad about using it? Instead of holding informal discussions with a few members of Congress, the president could have asked Congress to create more streamlined procedures if he needed them. Why didn’t he?

More to the point, I’d argue that the rule-of-law bores, be they Republican libertarians or liberal progressives, actually have a better understanding of what it’s going to take to win the war on terrorism in the long run than do those who think tapping and torture without court permission are warranted by extreme circumstances. Like the Cold War, the war on terrorism is not merely a military conflict but a battle of ideas. And just as the Cold War was won when Eastern Europeans abandoned communism and joined the West, the war on terrorism will be over when moderate Muslims have transformed the Arab world — abandoning the radicals to their tents and their caves — and joined the global mainstream.

Before they get there, they’ll probably be subjected to a lot of State Department speeches about why it’s important to abandon such practices as arbitrary arrest, torture and secret electronic surveillance. They’ll probably be told over and over again why it’s important for political leaders to subject themselves to the same laws as their citizens. They’ll probably hear lectures about due process, and other rights available to people in civilized societies. But as things are going now — why on earth should they listen?

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