The Bush administration has proven time and again that the Rule of Law is only as definitive as its most inventive lawyers.
I’ve been watching a lot of Westerns recently – El Dorado, 3:10 to Yuma (the new version), The Man Who Shot Liberty Valance, The Man From Laramie, Winchester ’73. The older of these movies that defined masculinity during the Golden Age of Gender Roles in the 1950s – “the strong, silent type” as Tony Soprano memorably described it, echoing many before him. What these movies are about – at their core and often explicitly – is how the Rule of Law came to the West. It was not always brought through the most ideal means. Often the honorable brigands and hired guns helped the sheriff establish civilization. But it came – and it was fought for – and men and women died so that the Rule of Law might be brought to their small towns, and many died for the lack of it.
Now today, right wing radio talk show hosts from Dennis Miller to Steve Malzberg talk about the Rule of Law as if it were a sissification, as if it were a feminine value, as if it made a civilization weak. They – and those in power – who dodged and pulled strings to avoid military service (another mark against their purported standard of masculinity) malign those who have stood up for the rule of law2 – from John Kerry to Max Cleeland – as cowards and traitors and “girly men”.
As I’ve argued before – it is astounding that those who advocate the preemptive surrender of American values in the face of terrorism have been able to portray those who stand for the Rule of Law as effete snobs who want to surrender to terrorists. Yet based on the standard of masculinity that many of these “conservatives” regularly invoke – the 1950s man, the cowboy – they are failures. The cowboys in these old Westerns – these brigands and thieves and hired guns and sheriffs – fought to bring the Rule of Law to the Wild West. The movies are often bittersweet, as the world in which these men thrived – a lawless and vicious yet exciting and new wasteland – is “civilized” and they are made obsolete. But these men – and they are all men in these Westerns – still fight for justice, which is held to be brought about only by the Rule of Law.
What John Yoo and the Bush administration suggest, without saying outright, is that the Rule of Law – the concept that all individuals are equal before the law – is obsolete and dangerous. They believe that the Rule of Law does not need to be upheld when government officials are trying to deal with terrorism. Therefore, telecommunication companies that broke the law should be immunized; CIA officers who have tortured individuals should not be held accountable; neither the president nor his lawyers nor his advisors nor the Secretary of the Defense should be forced to follow the law or to face consequences if they do not. The overwhelming, overriding impulse must be to take any measure necessary to prevent terrorism – even if there is only a 1% chance of an attack, it must be treated as if it were certain, and it must be prevented by any means necessary. 3 This is a prescription for tyranny. 4 But perhaps worse from the perspective of those “conservatives” who like to dress up their president as a cowboy or Air Force pilot, it is cowardly.
- This particular post has actually appeared on the site several times before in the past week due to errors on my part. This is the definitive version. [↩]
- And often did serve. [↩]
- Though this sounds like an exaggeration, it is precisely what Vice President Dick Cheney articulated and it is what that Ron Suskind demonstrated has informed administration policy since September 11. [↩]
- Let me be clear – I do not believe we are there. But I think this clearly is the danger we face. The difference between a liberal democracy and a tyranny is the Rule of Law. [↩]