The strict rule of law is an ideal and a fantasy. Conflicting and archaic words must be interpreted, and doing so is an art, not a science.
But there is an enormous chasm between honest attempts to approach the ideal of compliance with written law, and open disregard for it.
It is becoming standard practice for our government to enforce laws selectively or not at all, to openly defy laws, to enact laws in violation of the higher law called the Constitution or in violation of the treaties which that Constitution defines as the Supreme Law of the Land.
At the same time, charades of legality degrade it as an ideal: the International Criminal Court is not international, military justice makes a mockery of justice, etc. And anti-legal measures, like secret sections of the PATRIOT act that can be enforced against us but which we cannot be permitted to read in order to comply with, muddle for many people the very idea of lawfulness.
Law is losing respect among people as a result of government defiance. Why should we protest, I’m asked, when Congress legalizes domestic propaganda, since our government already lies to us and goes unpunished? What difference does it make to call that “legal”?
On top of this, it is becoming a violation of laws in many cases to assemble, speak, and protest. When we try to nonviolently gather and march against mass murder, we’re greeted by masses of militarized law enforcement officers and undercover police who try to entrap us in sick evil plots they’ve dreamed up.
Meanwhile over half of our federal government’s discretionary budget goes to war and preparations for war, leaving those who morally object to funding such horrors with no choice but to violate the law requiring taxes — even while it is public knowledge that many of our wealthiest corporations and individuals pay little, no, or negative tax rates, and do so “legally,” many of them also profiting from the business of war, the business of imprisonment, or the “legal” business of destroying our atmosphere with fossil fuels.
The ideal of law, as if it were not in enough trouble, has suffered an additional blow from the U.S. government’s shift in policy from torture to murder. A young man spent days in the capital of Pakistan and could easily have been arrested. Instead, he was murdered, days after departing, by a U.S. drone. He was never charged with any crime. Was it law enforcement? Then why is a career-criminal who was recess-appointed by an imperial president empowered to serve as judge, jury, and executioner, and to exercise his judicial power world-wide and in secret? What sort of law is that? If, on the contrary, such “strikes” are war, they are war with one army sitting at a desk thousands of miles away, with their drive home to dinner the most dangerous part of their day, while the other army is handcuffed and blindfolded on the battlefield with their kids and spouses and grandparents along. And since when is war itself legal, much less an alternative to law enforcement?
By written law, the Kellogg-Briand Pact bans all war. This treaty was put in place in 1928. The U.S. State Department says 65 nations are committed to it. Yet the very idea of actually complying with it elicits nothing but laughter in Washington, D.C. The primary reason not to comply with it, I’m told, is that nobody complies with it. Of course, many nations do.
The next reason is that it is a “failed” treaty. It banned war. We’ve still had wars. Therefore it’s no good. In fact, the typical argument is that it banned war, and World War II happened, and so it’s no good. But we also still have murder. Shall we legalize that? When did a single violation of a law take on the power to erase the law? Isn’t it normal practice to punish violations of laws and leave the laws in place until overturned by democratic process? In fact, after World War II, the Kellogg-Briand Pact was used to prosecute war as a crime for the first time ever. How could that erase the law utilized, as opposed to strengthening it — unless very powerful forces wanted it erased and everyone else tragically complied?
The next reason to ignore the illegality of war established by the Kellogg-Briand Pact is that the U.N. Charter supersedes it. The U.N. Charter legalizes two categories of wars (defensive and U.N. authorized) that have been interpreted broadly and predictably to allow pretty much free warmaking by the most powerful warmakers. The United Nations opened the world back up to legal war, just as the Geneva conventions civilized proper legal war fighting. But the U.N. Charter cannot erase the Kellogg-Briand Pact, and many of our wars indisputably violate the U.N. Charter as well, not to mention the U.S. Constitution, the War Powers Act, etc.
What enforces laws or tosses them aside is the collective decision-making of our culture. One friend, whom I asked about his acceptance of “legal” status for war, responded that the “community of international lawyers” gets to decide. But that is only true if people at large let them. The same friend suggested I read a book called “Of War and Law” by David Kennedy, and I’ve just done so. I now consider Kennedy an enemy of the very idea of law, and I see a need to argue for law’s value. Kennedy’s entire book makes no mention of courts, judges, prosecutions, or punishments. Legality in war, for Kennedy, is a subcategory of public relations. Wars — and it is U.S. wars he is discussing, I don’t know whether he agrees with the ICC on the need to prosecute African warmakers — look better to the extent that they can persuasively claim to be “legal.”
According to Kennedy, “determining the law governing military operations is not a simple matter of looking things up in a book, particularly for coalition operations, or for campaigns that stretch the battlespace across numerous jurisdictions. . . . once you begin thinking of the international legal order as backstopped by a ‘court of public opinion,’ or international norms being enforced through the decentralized process through which the ‘international community’ makes the political initiatives of those who are perceived to break the norms less legitimate and therefore more costly to undertake, the idea of ‘validity’ makes less sense. There is no authoritative determiner of the norms and interpretations that are, in fact, valid.” Might makes right.
“War has become an affair of rules,” writes Kennedy, fooling himself. Legalistic rhetoric is not law. And war includes as much finger-chopping, mutilating, rape, slaughter, suicide, and insanity as ever. “No ship moves, no weapon is fired, no target selected without some review for compliance with regulation — not because the military has gone soft, but because there is simply no other way to make modern warfare work.” Uh huh. Now shout “Humanitarian war in Haditha” three times fast.
But don’t blame anyone. Warmakers don’t make wars, Kennedy tells us. Wars make the warmakers: “Neither the commander in chief nor the political culture of Washington controls the politics of the battlespace. As often as not, it will be the reverse.” Helpless though they may be, the warmakers are professional, Kennedy writes. Even John Yoo’s memos were professional, thus putting them beyond reproach — likewise the use of nuclear bombs, extremely professional. “War has become, in Clausewitzian terms, the continuation of law by other means,” according to Kennedy — the reversal, it should be noted, of the goal of the 1920s Outlawrists who created Kellogg-Briand. War is illegal on paper, while in practice, in Nixonian terms, if the war does it then that means it’s not illegal.
I both want to eliminate the laws that govern the conduct of war. But I want to do so by enforcing the law that forbids war entirely. He wants to do so by treating laws as helpful suggestions and rules of thumb, with the ultimate authority on an action’s legality to be precisely whoever takes the action. You can imagine how this would go over in domestic affairs. You can imagine how it would go over if the nations where we fight our wars were inhabited by white, English-speaking Christians. As it is, Kennedy’s assault on the rule of law is more insidious and more powerful than that of any anarchists shouting about their ownership of a street.
The rule of law was to replace the rule of kings. Take it away and see what you’re left with.
There must be a special loophole in Hell reserved for war lawyers.