The rule of law in decline (11/15/2007)

The Framers of the Constitution were entitled to believe that they’d achieved a historical milestone — the subordination of the executive to the rule of law. But the principle is in a state of decline. It can be glimpsed in the presidential usurpation of war and foreign affairs powers by both Democratic and Republic presidents and, more recently, in the unbridled claims to power advanced by the Bush administration in its war on terror.

Frederick A.O. Schwarz Jr., eminent lawyer and acclaimed author, has provided a penetrating analysis of the executive aggrandizement of power, and its implications for the Constitution, civil liberties and republicanism, in his new book, “Unchecked and Unbalanced: Presidential Power in a Time of Terror,” the basis of his lecture today to The City Club of Idaho Fall.

The news, fellow citizens, is grim. Disregard of the separation of powers and checks and balances has sapped the rule of law of its very marrow.

Constitutional government, as Jefferson said, depends upon an informed citizenry. Which is why Americans need to comprehend the ramifications of the Senate’s approval of Michael Mukasey as U.S. attorney general. Under questioning from the Senate Judiciary Committee, Mukasey refused to say waterboarding is a form of torture and, therefore, prohibited by American law.

An affirmative answer would have serious implications, both criminal and civil, for former Secretary of Defense Donald Rumsfeld, who purportedly authorized waterboarding, and perhaps for President Bush and Vice President Cheney, who may have authorized it as well.

Human rights organizations and all but a very few nations have rightly condemned waterboarding as a cruel and heinous method of torture. U.S. law prohibits it. Mukasey’s refusal to condemn it as unlawful rendered him unfit to become America’s highest ranking law enforcement official.

His defeat was within reach. Democrats on the committee merely needed to hold their ground. In the end, key Democrats caved. They feared that the defeat of Mukasey would leave the Justice Department in the hands of Cheney and his strongman, David Addington, two chief architects of the subversion of the Constitution since 9/11. Mukasey was the lesser evil. In a nutshell, the Senate was held hostage to Cheney and Addington’s contempt for the rule of law.

A key Democrat, Charles Schumer of New York, grounded his vote on Mukasey’s assurance that if Congress passed a new bill prohibiting torture, he would enforce the law. That’s unlikely. Any bill passed by Congress would be vetoed by Bush. If Congress overrode the veto, Bush could simply issue a signing statement prohibiting his attorney general from enforcing it.

The Mukasey episode reflects the depths to which America’s respect for the rule of law has fallen. Where is the outrage?

Adler is a political science professor at Idaho State University who has written and lectured nationally and internationally on the Constitution and presidential power.