More on Accountability

American law is built upon adoption of substantive principles as well as requirements of due process. This is the essence of the rule of law. We look to the Constitution and the Bill of Rights as well as laws and treaties for the substance of law: the right to free speech and assembly; freedom to believe in god or not; the right to vote in elections; the right to a trial by jury, etc. And before the government may take away life, liberty, property, or options, there must be due process: a series of steps that require notice, hearing, sometimes the right to counsel, confrontation of witnesses, and a deliberative process based upon rules of evidence.

This is not the exception, this is the rule of law.

So when I hear Attorney General Michael Mukasey defend the unlawful actions of the Bush administration as defensible good people, because each was acting to “protect the security in the country and in the belief that he or she was doing something lawful,” frankly I don't find this a legitimate reason not to use the American system of law to learn why and how these Bush officials, acting under oath to uphold and defend the constitution, instead subverted the constitution.

Motive although an important plot point on television trial dramas is not relevant in the real law.

Yesterday the New York Times published three opinion pieces on whether the Bush administration should be held accountable for the authorization and use of torture, wiretapping, and other unambiguous violations of the laws and treaties of the United States. Each of the authors--Charles Fried, former solicitor general of the US and current Harvard Law professor, Dalia Lithwick, senior editor at Slate, and Jack Balkin, Yale Law professor articulate different remedies for the abuses of the last eight years.

These essays are worth reading. Americans do need to weigh in on how important cleansing our international image is to the future of our country.

This week I attended a conference of law faculty, which was why I am in San Diego. I attended a discussion about holding not just Bush, Cheney, Rumsfeld, Rice, Powell, and Gonzales accountable. At this one brown bag lunch, the conversation shifted to holding the lawyers who justified these illegal acts of torture, wiretapping, renditioning, often retroactively, accountable for willfully manipulating legal analysis to illegal ends, a real subversion of the rule of law. These lawyers include John Yoo, back as a tenured law professor at UC Berkeley, Jay Bybee, a judge on the federal appellate court, and David Addington, counsel to the Vice President.

One speaker, Jordan Paust, a current law professor at University of Houston Law School, former JAG lawyer, and therefore someone intimidately familiar with how military justice is supposed to work, and it's a rather esoteric arena, well, to listen to his earnest indignation about the perversion of the rule of law is quite convincing that truth and reconciliation hearings with promises of immunity just won't cut it.

It is somewhat comforting that unlike the Bush administration which dissolved the procedures of government in favor of the secret cabal, "President-elect Barack Obama is reported ready to fill one of the more obscure but powerful posts in his administration — the Office of Information and Regulatory Affairs — with Cass Sunstein, a friend and former faculty colleague at the University of Chicago Law School." According to the Times, "Mr. Sunstein will be responsible for overseeing the Obama administration’s ambitious plans to overhaul a raft of regulatory principalities. His purview will range from financial services to workplace safety to environmental protection and consumer products. In effect, Mr. Sunstein will be reversing the office’s use in the Bush administration as a citdel of deregulation."

But moving forward isn't enough. In order to be a country devoted to the rule of law, we must enforce it. By letting Bush and Cheney and their lawyers escape accountability, we are doing nothing to reinstate the rule of law, just leaving a blank in the history of America post-911.