Monday, January 02, 2006

Against the Imperial Presidency

We’re not robots.  Or at least I’m not, and I’m assuming that the rest of you aren’t either (though that might explain a few things).  We are all under our own control and are expected to police ourselves and follow certain rules.  That’s why they bother telling us the laws, so that we know what is expected of us and can enforce them on ourselves.  Because no one else can do that for us.  They can’t make sure that everyone is driving the right speed or not murdering people.  That would be impossible.  That’s how I explain this shit to my kids, and the same applies to the rest of society.  We’re all responsible for our own actions, and have no excuses for the bad ones.

But people can’t necessarily be trusted to police themselves, so we have the Police who assist us in that effort.  But they don’t catch everything, nor are they expected to.  Rather, we have police in certain locations, performing a sort of legal audit on us, to insure that people are following the rules.  And just as an accounting auditor doesn’t look at every transaction (which would be impossible); the police are basically performing random samples of the population, to make sure that we’re in compliance.  And that’s what punishment is for too.  To give us a reason to enforce these laws upon ourselves.  You should obey the laws because you might be punished for it.  And that system works pretty well.

Tied into that is our judicial system.  But it also doesn’t serve the function that people believe it does, not quite anyway.  Because it does not provide justice to all.  Sometimes, the wrong-doers will get away.  And sometimes, an innocent man will be punished (and no, there are no innocent women).  But the point isn’t that the system is flawless.  The point is that we have a judicial system, and that it works by certain rules.  Because the point isn’t to catch everyone, or to turn people into mindless robots.  The point is for there to be expectations of punishment if we violate the rules.  We’re expected to enforce the rules, and the police, judges, and juries are supposed to audit our enforcement.  

But the key is that we’re responsible for own actions.  We can do whatever the hell we want, but we shouldn’t be surprised when we get in trouble for it.  You can run every red light in your town, and you’re more likely to cause an accident than to be ticketed for it; but you know that you might be ticketed, so you try not to do it.  And this isn’t just some weird way of looking at things.  This is reality.  We are the police.  We are the enforcers.  We can do anything, but we might get caught by the auditors; the reinforcers, if you will.  And that’s how it all works.


And we see some important points in this regard.  For example, if your life is threatened, you can kill the person threatening it.  And that just makes sense.  The laws are not a suicide pact.  They are for our protection, but if our ultimate protection is threatened, then we are allowed to violate the laws.  But it’s not really a violation, as that contingency was accounted for within the laws.  There is a law against killing people, but there are exceptions to this; and your life is considered to be one of them.  

And there are other exceptions built into the system.  Self-defense is legally allowed idea, but what if you violate a law that doesn’t have a legal exception built-in; but that it was better for you to violate it?  Well that’s taken care of too.  If you convince the police, or the DA, or (most likely) a jury that you were justified in breaking the law, you will get away with it.  Or perhaps you’ll get a very light punishment.   You couldn’t consult with them beforehand, but now that it’s all over, they gave you retroactive permission to break the law.  

Or maybe they didn’t.  Maybe in hindsight, they didn’t think that your case allowed law breaking.  That was the chance you took, and you knew that going into it.  And if you weren’t willing to suffer the consequences, maybe it wasn’t worth breaking the law.  If you killed in self-defense, then it’s better to go to jail than to allow yourself to be killed.  And a speeding ticket is better than allowing your kid to die in your car (as that really hurts the resale value).  And that’s how our whole system works.  

But…if that happens, do they give you an automatic out for it?  Is your decision the end of the discussion?  Would it be sensible to allow anyone to claim self-defense; which would then automatically prevent the police from investigating?  Which would prevent the court system from taking action?  Of course not.  That’d be utterly foolish.  Everyone would claim self-defense all the time, and always circumvent the rules.  No, what we do is allow such an exception to the No Killing rules; but still allow the legal auditors (police) do their job and see if your claims are true.  And maybe they’ll agree with you, and maybe they won’t.  But the main thing is that there is a process for all of this, and that everyone must follow the process.

Rule of Law

But here’s one of the tricks of the Rule of Law.  You have to follow it.  You have to.  What if it means a murderer gets off?  Too fucking bad.  What if that would make an innocent man go to jail?  Go home and cry to your wife about it.  Because this isn’t about a murderer or an innocent man or any individual case.  This isn’t about justice being served or good beating evil.  This is about a process.  A process that works the same for everyone, all the time.  Because that’s what’s important.  Not that justice is always served; but that we have a system for handling justice.  We can try to work within the system to make it more fair, but we still have to work within the system.

And maybe this isn’t the best system; but it’s the one we’ve got.  Maybe some day we’ll have a computer arbitrating justice with lie detectors and electro-shocks.  But with the justice system we have now, it’s all about the appearance of justice.  If you have a public defender, you’re probably screwed.  And if you have Johnny Cochran, well, you’re still probably screwed because he’s dead.  And sometimes that public defender gets you off, and sometimes Johnny Cochran won’t (especially as he’s dead).  But the point is that we all have the same laws and that we all submit to the same process.  

That’s what it’s about.  We have a process by which certain people write laws, other people enforce laws, and still other people make sure that the laws were enforced properly.  We’re ultimately responsible for making sure that we follow the laws; but we are never allowed to be the final judge of whether we followed the laws properly.  That’s the constitutional process that we have, and we must stick to it.  And even the constitutional process is amendable; but again, it must be done within the system.

King George

And in case you didn’t get it yet, I’m not here to talk about justice or crime.  Hell no, this is all about George Bush and the theory of the Imperial Presidency.  Yesterday, I was reading the irrepressible John Dean at Findlaw who was discussing Bush as the New Nixon, regarding warrantless wiretaps.  In this, Dean gives a quickie presentation of Nixon’s wiretap argument, which explained why it was ok for the President to break the law.  I quote Dean:

Nixon rather presciently anticipated - and provided a rationalization for - Bush: He wrote, "there have been -- and will be in the future -- circumstances in which presidents may lawfully authorize actions in the interest of security of this country, which if undertaken by other persons, even by the president under different circumstances, would be illegal."

And that’s fine.  I agree completely.  Sometimes, there are certain circumstances in which presidents have to break the law.  Similarly, there are certain circumstances in which you might have to break the law.  For example, if you’re driving to a hospital with a dying child and you drive over the speed limit or run a red light.  That’s certainly justified (assuming that you couldn’t get an ambulance).  Or there’s the example above of killing someone in self-defense.  Sometimes, you have to violate the law to serve a higher purpose.

But…does it end there?  You’ve got a dying kid in the car, and you don’t have to pull over for the cops, and the normal rules don’t apply?  The cops can’t even check to see if the blood isn’t just catsup?  Or if you claim self-defense, the cops can’t investigate?  Of course not.  Not only are they allowed to investigate, they’re expected to.  And the more serious the crime, the more they have to investigate.

The Imperial Flaw

And that’s the flaw that the Imperial President people make.  Because, yes, the President might need to violate the constitution to preserve it.  Just as we might need to kill someone in order to save lives.  There can be no doubt of that, and only a stubborn fool would argue against it.  But that’s not where it ends.  When a president acts in violation of the law, that’s where the argument begins.  Sure, maybe he didn’t have time to ask Congress to write a new law that he needs.  But that’s not an excuse to let him off the hook.   That’s when we need to start discussing it.  And if Congress thinks it’s necessary to discuss it during an impeachment hearing, that’s fine too.  That’s the constitutional process.  That’s the law.

But it never ends with the President’s decision.  And the more crucial a decision is, the more we need to discuss it.  And the more obvious his choice was, the more he should be glad to discuss it.  And in terms of Bush, had he a terrorism conviction based on these illegal doings, then he should be glad to discuss it.  He’d rub it in our faces.  Except…the circumstances don’t favor him.  He doesn’t have any convictions to trumpet.  And he hasn’t tried to get new laws passed.  And it’s likely that he was, in effect, denied them.  And the current laws were pretty damn good about this stuff.  The main thing that they went up against was abuse, and that’s no defense at all.  And most likely of all, these wiretappings were broad fishing expeditions that no court would approve; and that’s exactly the kind of thing that we need to prevent.  Again, we have a process for these things, and no one can act outside of the process.  The process must allow temporary exemptions, but under no case do we allow these exemptions an automatic approval.

And so where does it all end?  If the system works, it ends up with impeachment and removal from office.  Or at the least, an impeachment hearing that supports his position.  But it doesn’t end with his statement of National Security.  He can give his justification, but it must be subject to the system’s approval.  He can insist that it was necessary to take the actions he did, but his insistence is no better than any other persons.  The president is not above the law, ever.  He can break the law, just as we all can; but eventually, he must submit to the system; or the system will be destroyed.  That’s the rule of law and the basis for all modern government.


FLY said...

You make some great points,

I think President Bush is sincere in his efforts to track terror suspects, the legal allegations seem to hinge on how various officials define the word "war", as I understand it the President can take extrodinary steps to defend the nation against a foreign enemy (or its agents posing as US residents).

Doctor Biobrain said...

I, on the other hand, have not found Bush to be sincere in anything. I think that he likes the idea of tracking terror suspects, but I don't think his ideas necessarily reflect reality.

I also don't think that Presidents have the extra-legal powers that are often assumed to them. I don't care what FDR or Lincoln did, I don't believe in illegal precedents, even from Presidents. My point stands that Presidents can do what they think necessary to preserve the nation, but that they have to be held accountable for that and cannot claim an automatic exemption; just like the rest of us.

Almost no king in history was granted limitless power, even before the Magna Carta, and I don't see how Bush can do so either. He is no more above the law than we are. He is a citizen ruler with more powers than us, but who must still obey the law. That is the nature of our democracy, and anything outside of that will only help destroy it.

Brian de Ford said...

I believe one of the threads to your argument is known as "jury nullification" in the US and as "perverse verdicts" in the UK. Whatever you call it, a jury is entitled to find the defendent not guilty even if the defendent clearly broke the letter of the law.

The reasons for this are twofold. Firstly, legislature may enact a law that is totally unjust. Such a law could not be repealed before an election, therefore the public (whom the law is supposed to serve) can refuse to find the defendent guilty.

Secondly, few laws are so carefully thought out that they apply universally in all circumstances. There will be exceptions of dire necessity (like breaking the speed limit to get a dying child to hospital). The jury can then say that, in this case, the law did not foresee those particular circumstances and find the defendent not guilty.

The reason this is called "jury nullification" in the US is that the jury can nullify the letter of the law. Over in the UK it's known as a "perverse verdict" because the jury, perversely, refused to let their verdict be guided by the letter of the law.

I believe that Jefferson, as President, deliberated upon the possibility that a President may find circumstances such that he feels compelled to ignore the Constitution for the greater good of the Republic. Jefferson was of the opinion that if such happened then the President must face sanctions (either indictment or impeachment).

Jefferson did not say what he thought would happen in such a case and I don't think jury nullification was an accepted principle back then, but it's fairly clear what ought to happen: the President faces the possibility of sanctions and can only escape punishment if the jury (on indictment) or the Senate (on impeachment) decide that the circumstances justified the action.

BTW, the so-called "War on Drugs" has pretty much wrecked this process in both the US and the UK. The US has passed legislation which forbids defence counsel informing juries that they may nullify the law. The UK is slowly restricting the number of cases in which a jury trial is possible. Both are attempts to prevent juries overwhelmingly refusing to convict people who smoke marijuana.

Doctor Biobrain said...

"Jury nullification", that sounds great. I wasn't referring to anything like that, but now that you mention it, that sounds familiar and makes sense. I just thought that they'd lie and find the defendent not guilty; but the nullification thing is more accurate and fits even better with what I was saying.

As usual, I was just riffing with this stuff, using alcohol as the basis for my arguments; but it's always nice to see when reality really does match up to what I'm saying.