Tuesday, December 20, 2011

From Nixon To Newt: Why We Must Honor The Rule Of Law

"When the president does it, that means it is not illegal."  -- Richard Nixon

When President Ford pardoned Richard Nixon for "all offenses against the United States," he stated that it was out of concern for the "immediate future of this great country."  He should have considered the longer term.  We may have been spared short-term trauma, but Ford's pardon guaranteed that future high government officials would feel unconstrained by the checks and balances of the other branches of government.

Next came Iran-Contra. While the Republicans stacked the joint legislative committee undertaking the investigation with the conservative wing of their party (e.g., then-Representative Cheney), the Democrats relied mostly on moderates, and thus the committee members were skewed toward those who were disinclined to probe very vigorously.  By rashly granting immunity to key witnesses such as Ollie North, the committee undermined prosecutions by an independent counsel.  The Iran-Contra Affair culminated in the pardon by first President Bush of several participants who had been implicated.  The lesson that the president and his circle had nothing to fear from overriding the will of Congress was reaffirmed.

President Obama has refused to seek any meaningful investigation of his predecessor's "War on Terror," despite substantial evidence --indeed, admissions -- that wiretapping laws were broken and torture was authorized at the highest levels.  Much like President Ford, Obama claimed that “nothing will be gained by spending our time and energy laying blame for the past.”  Thus, once again a clear signal was provided to future presidents that there would be no consequences for abuse of power.

President Obama maintains that he is committed to the rule of law and won't authorize torture.  And as he is about to sign a defense spending bill that will authorize the President of the United States to order indefinite detention of suspect terrorists without charges or court hearing, we are supposed to feel assured that Obama won't wantonly abuse this power.  But even assuming, without conceding, that Barack Obama is scrupulous in his respect for civil liberties and human rights, what is to stop the next president? 

Newt Gingrich has such disdain for the rule of law and the separation of powers that, as president, he would refuse to follow Supreme Court rulings he believed were incorrectly decided.  He rejects the long-standing principle of judicial review by which the Supreme Court is the final arbiter of whether legislation or executive branch actions are constitutional.  He believes it would be proper for Congress to subpoena federal judges, and he would be willing to abolish federal courts if they issued rulings with which he disagrees.

The Supreme Court's 2008 decision that the Bush Administration exceeded its constitutional authority in handling suspected terrorist detainees at Guantanamo would have been rejected by Gingrich if he were president:  “A commander in chief could simply issue instructions to ignore it, and say it’s null and void and I do not accept it because it infringes on my duties as commander in chief to protect the country." 

Gingrich's views on the powers of the presidency, whether you call them radical or simply bat-shit crazy, provide us with a jarring reminder of why a true reckoning of a prior administration's misdeeds is so essential and why enshrining into law provisions on indefinite detention which provide even greater discretion to the executive branch is so troubling.


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