Bush’s War on the Rule of Law

If the June Harper’s Magazine article “Undoing Bush” was damning, wait until you read “Bush’s war on the rule of law” by Scott Horton in the July issue. Much of the piece describes how the Bush administration has sought to undermine and discredit both the civilian and military lawyers who have volunteered or been assigned to represent Guantánamo detainees (by denying access to their clients, by confiscating confidential records, and by engaging in smear campaigns to make reputable lawyers think twice about taking on such cases). The tactics used are similar to those the unthinking use to attack criminal defense attorneys, despite the fact that the strength of our legal system is based on equal protection, which means equal access to competent representation.

Everyone is entitled to defense, but the Bush administration doesn’t’ seem to see it that way. Horton says this:

“In twenty-five years of work as a human-rights monitor, I have closely observed totalitarian and proto-totalitarian regimes around the world—from the former Soviet Union and its offspring to China, Cuba, Liberia, and Zimbabwe. One of the hallmarks of tyrannical regimes, of whatever political flavor, is their intense dislike of defense lawyers in general, and in particular defense lawyers who do their work effectively and professionally. For a totalitarian regime, the idea of blind justice is laughable. The criminal justice system exists to capture and brand criminals, of course, but it is also understood as an essential instrument of political repression. Tyrannical regimes use the law to destroy the reputation of enemies of the state and to punish them.
Obviously, our predicament is not yet so dire as that of Weimar Germany. Yet the parallels are frightening. The Bush Administration’s reach is long, and its Schmittian concept of lawfare represents an all-out assault on the rule of law.”

No one is arguing that terrorists or any other criminals should be treated lightly.

The point is, though, that we must all insist on “adherence to America’s oldest legal traditions, to our Constitution and its vision, and to the law of nations that nurtured and permitted the emergence of our republic.” Any less, and we will find ourselves on an irrevocable path to tyranny.

(Cross-posted at Cobalt 6)