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Good questions, bad answers

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Michael Lind asks if anyone in America believes in the rule of law?

It’s a good question, but his response to it reveals it’s a much tougher one to answer than he imagines.

First, he excoriates “most of the American left” for defending Wikileaks and Julian Assange:

For Assange’s admirers, the embarrassment that his publication of stolen government and corporate documents produces for government policymakers, bankers or corporate executives whom they dislike more than compensates for the theft of classified or private information on a grand scale. The idea that the law in its majesty is supposed to protect the bad as well as the good apparently is rejected by those who celebrate information vandalism, as long as its victims are the State Department or big banks.

Given Lind’s general theme — that people all across the political spectrum ignore the law when it suits them — this example seems poorly chosen. After all, there are excellent arguments that Wikileaks and Assange haven’t actually broken any American laws. In the current increasingly authoritarian climate it seems people need to be reminded that, in America, merely publishing government and corporate documents, even stolen ones, is not illegal. Furthermore, arguments that Assange is guilty of conspiracy to commit espionage are very problematic as a legal and specifically constitutional matter, since such arguments would, as many people have pointed out, essentially criminalize a lot of traditional investigative journalism.

Lind might respond that while Assange himself hasn’t broken the law, “the left” is celebrating his exploitation of law breaking by his sources. But this merely dodges all the tough legal and political questions, such as under what circumstances the unauthorized transmission of classified government and corporate documents for the purpose of exposing wrongdoing — i.e, whistle-blowing — is or should be legally protected (characterizing such behavior as “stealing” begs this question rather than engaging with it).

Lind goes on to strive for ideological balance in his critique:

An equally casual approach to the rule of law is found on the right, among libertarians and conservatives who defend the offshore tax havens that defraud federal, state and local governments of tens of billions of dollars in tax revenue each way. Not even their defenders dispute the fact that these tax havens exist only to facilitate tax avoidance by hedge funds, banks and corporations. According to the Government Accounting Office in 2008, in 2007 Citigroup had 427 offshore subsidiaries, Morgan Stanley 273, JPMorgan 50, and Goldman Sachs 29. The “dark matter” of the “shadow banking system” created by these complex law avoidance schemes contributed to the global financial crisis and today’s prolonged recession.

Again, what’s lacking here is any argument that the behavior Lind deplores is actually illegal. I’m not a tax law expert but I don’t doubt that what Lind casually calls “fraud” would be characterized by the lawyers and accountants for these banks as “the prudent employment of existing tax laws.” Indeed these people would argue that what they’re doing is not merely legal, but that their firms’ fiduciary obligation to their shareholders affirmatively obligates these firms, as a legal matter, to take advantage of such arrangements. I also don’t doubt there are arguments these avoidance schemes sometimes cross the line into illegality. Whether those arguments are, as a strictly legal matter, good ones I’m not competent to say — but of course neither is Lind.

Ironically Lind is doing something very much like what he accuses others of doing: he doesn’t like it when Wikileaks’ publishes classified documents, or when investment banks avoid taxes, so he simply assumes those policy preferences represent “the law.”

(Lind’s argument from immigration law — “To read much of the liberal blogosphere, it would appear that immigrating to the U.S. by following U.S. laws, and immigrating to the U.S. by breaking those same laws, are equally legitimate” — is a strawman that he doesn’t even bother to illustrate with evidence in the form of A Guy With a Sign Somewhere before he knocks it down.)

Lind’s best argument is that both conservatives and “liberals” such as Bill Clinton and Barack Obama have abandoned the rule of law in the field of foreign affairs, by pursuing targeted assassinations, preventive war, and the use of torture on terrorist suspects. But even here Lind fails to grapple with the really difficult issue, which is that these are examples of not merely, as Lind frames the matter, individual “scofflaws” who ignore the law, but, far more problematically, instances of the systemic failure of our legal and political institutions. When George W. Bush engaged in “preventive war,” he did so with the full backing of the legislative and judicial branches of the American government. The Obama administration’s policy of pursuing targeted assassinations has to date produced no significant resistance from the legislative and judicial branches. And the failure to prosecute the architects of the Bush administration’s torture regime is just as deeply structural — and therefore just as “legal” — at least if one defines legality as what the American legal and political system actually does.

This last point gets to the heart of the matter. Lind doesn’t just ignore the inconvenient fact that people often disagree about what, at even the most formal level, is and isn’t legal. His argument fails to engage with the more fundamental issue of what “the rule of law” ultimately should or does mean. Does “the rule of law” require that we ignore the most basic tenets of our political and moral views when our political and legal system legalizes deeply immoral conduct? For instance, would Lind condemn judges who, prior to the Civil War, refused to enforce the Fugitive Slave Laws? Does the fact that Congress approved the invasion of Iraq have any bearing at all on whether that invasion was justified? Would it alter the mortality of torturing terrorist suspects if — as was the case under Anglo-American law until, historically speaking, relatively recently — torture was as a formal matter perfectly legal?

Invoking “the rule of law” as an axiomatic principle of political obligation remains easy to the precise extent one doesn’t ask hard questions about what that much-abused phrase does or should mean.

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