I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, December 28, 2005

Republicans speak out forcefully for the rule of law

As Jane Hamsher recently observed, the media is beginning to depict the NSA eavesdropping scandal as just the latest partisan war, whereby it is "liberals" who are objecting to President Bush’s clear and deliberate eavesdropping in violation of the law. Depicting the scandal in this light is absurd and inaccurate for multiple reasons, beginning with the fact that President Bush’s behavior violates every core principle to which conservatives claim adherence – from a limited and restrained Federal Government which honors the classically American demand to be "left alone," to the central importance of the rule of law and clear principles of right and wrong. And some prominent conservatives have spoken out strongly against President Bush's law-breaking on precisely these grounds.

As the Administration parades around one defense after the next to justify and excuse its violations of FISA -- that it was done for our own good, that it was only done against "really bad people," that the law wasn’t broad enough for them to comply with, etc. – opponents of the Administration’s law-breaking have been attempting to emphasize that the President, like all other citizens, is required to obey the law, and that it is not an excuse to claim, once he’s caught violating it, that he broke the law for a good reason.

And, as one would expect, there are lots of stirring testaments to the paramount importance of the rule of law which have been delivered by Republicans, who insist, with great moral courage, that there are no excuses or justifications for the President of the United States to violate the law. A President who violates the law, they argue, destroys the rule of law and violates every one of our Founding principles, and must be punished. It's true that most of them argued this in 1998 when advocating Bill Clinton’s impeachment for violating the law against perjury, but surely this steadfast devotion to the rule of law hasn’t waned any in just short seven short years.

Indeed, there is really no point in anyone writing any more about the importance of the rule of law and why it is so dangerous and intolerable to allow the President to violate the law. The Republicans who argued in favor of Bill Clinton’s impeachment have already advanced these very arguments as compellingly and eloquently as they can be expressed. All that remains is to prod them to apply these principles – in which they believed so righteously only seven years ago – to the individual who is currently occupying that office.

The pure applicability to today of these thunderous speeches of principle is truly overwhelming:

Rep. JC Watts - (R-OK)

[T]here is no joy sometimes in upholding the law. It is so unpleasant sometimes that we hire other people to do it for us. Ask the police or judges -- it is tiring and thankless, but we know it must be done. Because if we do not point at lawlessness, our children cannot see it.

If we do not label lawlessness, our children cannot recognize it. And if we do not punish lawlessness, our children will not believe it. So if someone were to ask me, "J.C., why do you vote for, why did you vote for the articles of impeachment?" I would say, "I did it for our children."

Rep. Tom Delay (R-TX)

I believe that this nation sits at a crossroads. One direction points to the higher road of the rule of law. Sometimes hard, sometimes unpleasant, this path relies on truth, justice and the rigorous application of the principle that no man is above the law. Now, the other road is the path of least resistance. This is where we start making exceptions to our laws based on poll numbers and spin control. This is when we pitch the law completely overboard when the mood fits us, when we ignore the facts in order to cover up the truth.

Shall we follow the rule of law and do our constitutional duty no matter unpleasant, or shall we follow the path of least resistance, close our eyes to the potential lawbreaking, forgive and forget, move on and tear an unfixable hole in our legal system? No man is above the law, and no man is below the law. That's the principle that we all hold very dear in this country.

Rep Dick Armey (R-TX)

How did this great nation of the 1990s come to be? It all happened Mr. Speaker, because freedom works. . . . But freedom, Mr. Speaker, freedom depends upon something. The rule of law. And that's why this solemn occasion is so important. For today we are here to defend the rule of law. . . .

If we ignore this evidence, I believe we undermine the rule of law that is so important that all America is. Mr. Speaker, a nation of laws cannot be ruled by a person who breaks the law.

Otherwise, it would be as if we had one set of rules for the leaders and another for the governed. We would have one standard for the powerful, the popular and the wealthy, and another for everyone else. This would belie our ideal that we have equal justice under the law. That would weaken the rule of law and leave our children and grandchildren with a very poor legacy.

I don't know what challenges they will face in their time, but I do know they need to face those challenges with the greatest constitutional security and the soundest rule of fair and equal law available in the history of the world. And I don't want us to risk their losing that. . . .

Christopher Cox - (R-CA)

Every single man and woman in Operation Desert Fox at this very moment is held to a higher standard than their commander in chief. Let us raise the standard of our American leader to the level of his troops. Let us once again respect the institution of the presidency. Let us see to it indeed what the censure resolution says merely in words, that no man is above the law. Let us not fail in our duty. Let us restore honor to our country. . . .

House Impeachment Manager Stephen Bryer (R-IN)

A core function of the government derives its role from the social contract that our civilized society has under which a fundamental exchange of rights takes place.

We give up the right to exercise brute force to settle disputes, a situation where chaos reigns and the strongest most often prevail. Instead, we submit to the power delegated to the state under which an individual then submits, to the governmental processes as part of the social contract. Indeed, when conflict arises in our society, we as individuals are compelled via the social contract to take disputes to our third branch of government, the courts. The judicial branch of government then peacefully decides which party is entitled to judgement in their favor after a full presentation of truthful evidence.

Implicit in the social contract that we enter into as a civilized society is the principle that the weak are equally entitled as the strong to equal justice under law. Despite the tumbling tides of politics, ours is a government of laws and not men. It was the inspired vision of our Founding Fathers that the Judicial, Legislative, and Executive branches of government would work together to preserve the rule of law. The United States Constitution requires the judicial branch to apply the law equally and fairly to both the weak and the strong.

Once we as a society— and particularly our leaders— no longer submit to the social contract, and no longer pay deference to our third branch of government— which is equally as important as the legislative and executive branches of the government we begin to erode the rule of law and begin to erode the social contract of the great American experiment. . . .

Our President, who is our chief executive and chief law enforcement officer and who alone is delegated the task under our Constitution to "take Care that the Laws be faithfully executed," cannot and must not be permitted to engage in such an assault on the administration of justice. The Articles of Impeachment adopted by the House of Representatives establish an abuse of the public trust and betrayal of the social contract in that the President is alleged to have repeatedly placed his personal interests above the public interest and violated his Constitutional duty.

For if he is allowed to escape conviction by the Senate, we would allow our President to set the example for lawlessness and corruption. We would allow our President to serve as an example of the erosion of the concept of the social contract embraced and embodied by our Constitution. I don't believe this Senate will allow that to happen. . .

"The whole of the executive branch acts subordinately to the command of the President in the administration of federal laws, so long as they act within the terms of those laws. Their offices confer no right to violate the laws, whether they take the form of constitution, statute, or treaty." . . . .

In The Imperial Presidency, Professor Arthur Schlesinger, Jr. states: "The continuation of a lawbreaker as chief magistrate would be a strange way to exemplify law and order at home or to demonstrate American probity before the world." By a conviction, the Senate will be upholding the high calling of law enforcement in protecting the rule of law and equal justice under the law. . . . .

We are seeking to defend the rule of law. America is a "government of laws, and not of men." What protects us from the knock on the door in the middle of the night? The law. What ensures the rights of the weak and the powerless against the powerful? The law. What provides rights to the poor against the rich? The law. What upholds the rightness of the minority view against the popular, but wrong? The law.

Rep. Robert Goodlatte (R-CA)

Since it is the rule of law that guides us, we must ask ourselves what happens to our nation if the rule of law is ignored, cheapened or violated, especially at the highest level of government. Consider the words of former Supreme Court Justice Louis Brandeis, who was particularly insightful on this point. "In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously.

For good or for ill, it teaches the whole people by its example. If government becomes a lawbreaker, it breeds contempt for the law. It invites every man to become a law unto himself." Mr. Chairman, we must ask ourselves what our failure to uphold the rule of law will say to the nation, and most especially to our children, who must trust us to leave them a civilized nation where justice is respected. . . .

If we truly respect the presidency, we cannot allow the president to be above the law. . . .

I have heard from many constituents who are deeply concerned that action be taken in this matter, and I appreciate them sharing their thoughts. One of those constituents is a 12-year- old sixth grade student from Linkhorn (sp) Middle School in Lynchburg, Virginia named Paul Inge (sp).

He recently wrote, "I am a Boy Scout who is concerned about the leadership of the president of the United States of America. It is my understanding that other ordinary citizens who lie under oath are prosecuted. The president should not be any different. He should also have to obey the laws. As a Boy Scout, I have learned that persons of good character are trustworthy and obedient. I feel that the character of the president should be at least as good as the leaders that I follow in my local troop and community. Is this too much to ask of our country's leaders?"

The precious legacy entrusted to us by our founders and our constituents is a nation dedicated to the ideal of freedom and equality for all her people. This committee must decide whether we will maintain our commitment to the rule of law and pass this precious legacy to our children and grandchildren, or whether we will bow to the political pressure for the sake of convenience or expediency.

Much of our hopes and dreams for our children, like Paul Inge, and for the integrity of our nation, depends on the answer to that question. Our Founding Fathers established this nationon a fundamental yet at the time untested idea that a nation should be governednot by the whims of any man but by the rule of law. Implicit in that idea is the principle that no one is above the law, including the chief executive.


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