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Tuesday, July 13, 2004

Rule of Law

Earlier this summer, NYT columnist Anthony Lewis wrote a powerful piece for Mother Jones (warning, pdf file) discussing the adverse consequences of the war on terror for human rights.

To help make his most important point, Lewis referenced Aharon Barak, president of the Israeli Supreme Court:
"Terrorism does not justify the neglect of accepted legal norms," Justice Barak wrote in 2002. "This is how we distinguish ourselves from the terrorists themselves. They act against the law, by violating and trampling it, while in its war against terrorism, a democratic state acts within the framework of the law and according to the law. It is, therefore, not merely a war of the state against its enemies; it is also a war of the Law against its enemies."
Powerful stuff.

Lewis argues that the Bush administration has ignored the rule of law by holding captives against their will and without due process at Guantanamo Bay and by holding American citizens Jose Padilla and Yaser Esam Hamdi for alleged terrorist actions. Lewis also discusses the arrest of more than 1000 Muslims in the US after 9/11. The article includes a bit about the Patriot Act, but these dubious detentions are far more serious since the President's lawyers basically argue against allowing detainees to have access to lawyers or to due process. Very few have been charged with any crimes and dozens of people at Gitmo have been freed. Hundreds of detained Muslims have also been freed, though some were held against their will for weeks and even months.

The section about some British citizens held at Gitmo is enough to make your skin crawl.

I tried to find the original for the Barak quote. It appears to have originated in a lecture the Judge gave in Cambridge (UK) , July 18, 2003 (warning, also a pdf file).

Barak also gave a great keynote address on this theme at Brandeis University on May 18, 2003. Allow me to quote this lengthy section:
There is no democracy without recognition of basic values and principles such as morality and justice. Above all, democracy cannot exist without the protection of individual human rights - rights so essential that they must be insulated from the power of the majority.

The rule of law and democracy must prevail in times of peace. They must also prevail in times of war and terror. The Roman saying that in battle the laws are silent - or the well-known saying that when the cannons speak, the Muses are silent - is wrong. Every battle a country wages - against terrorism or any other enemy - is done according to rules and laws. There is always law according to which the state must act. There are no black holes. And the law needs Muses, ever more urgently than when the cannons speak. We need laws most in times of war. And we need human rights most in times of war and in the fight against terror. Yes, when a democracy fights terror, not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, to strengthen its spirit and to allow it to overcome its difficulties. So in the United States after September 11th, and so in my country, Israel, where we are suffering from terrorism for a long time.
I'm heartened to think that the American Supreme Court shares these ideals, since the Bush administration last month lost its attempt to deny Hamdi and the Gitmo detainees access to judicial processes. The Court did not rule on the Padilla case on technical grounds -- but sent it back to the lower court, presumably with a new copy of the latest rulings.
The president's constitutional powers, even when supported by Congress in wartime, do not include the authority to close the doors to an independent review of the legality of locking people up, the justices said.

"We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens," Justice Sandra Day O'Connor wrote in Hamdi et al v. Rumsfeld.
I should note that the "rule of law" was an important reason to oppose the US invasion of Iraq. Without UN sanction, it was an illegal war. How can the US foster democracy around the world if its leaders attempt to subvert it domestically and if it is not accountable internationally?

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