'Restoring the Rule of Law'

By Alan Shapiro

To the Teacher:

Has the Bush administration flouted "the rule of law"? If so, what will the new president and Congress do about it? The first student reading below includes excerpts from the State Department's document Principles of Democracy, which describes the rule of law as a fundamental quality of democracy. The reading also includes an excerpt from a statement by Senator Russ Feingold on "Restoring the Rule of Law." The second and third readings provide some of the evidence that the rule of law has been violated by such Bush administration practices as torturing prisoners, detaining them indefinitely at Guantanamo, and violating the Geneva Conventions. Discussion questions, a proposal for a class commission of inquiry and suggested citizenship activities follow.

Student Reading 1:
The rule of law

"For much of human history, rulers and law were synonymous--law was simply the will of the ruler. A first step away from such tyranny was the notion of rule by law, including the notion that even a ruler is under the law and should rule by virtue of legal means. Democracies went further by establishing the rule of law. Although no society or government system is problem-free, rule of law protects fundamental political, social, and economic rights and reminds us that tyranny and lawlessness are not the only alternatives.

"Rule of law means that no individual, president or private citizen, stands above the law. Democratic governments exercise authority by way of law and are themselves subject to law's constraints.

"Laws should express the will of the people, not the whims of kings, dictators, military officials, religious leaders, or self-appointed political parties."

--U.S. State Department (www.usinfo.state.gov), Introduction to the "Principles of Democracy"

"Tomorrow, September 17, is the 221st anniversary of the day in 1787 when 39 members of the Constitutional Convention signed the Constitution in Philadelphia. It is a sad fact as we approach that anniversary that for the past seven and a half years, and especially since 9/11, the Bush administration has treated the Constitution and the rule of law with a disrespect never before seen in the history of this country….The catalogue is breathtaking, even when immensely complicated and far-reaching programs and events are reduced to simple catch phrases:

"Torture, Guantanamo, ignoring the Geneva Conventions, warrantless wiretapping, data mining…stonewalling of congressional oversight, abuse of the state secrets doctrine and executive privilege…signing statements. This is a shameful legacy that will haunt our country for years to come…."

--From "Restoring the Rule of Law," a statement by Senator Russ Feingold introducing Judiciary Subcommittee hearings on the Constitution (September 16, 2008)

In response to the first of the items on Senator Feingold's list, President Bush has repeatedly said, "We don't torture." As for the others, Bush administration officials have insisted that each is necessary to fight "the war on terror."

Senator Feingold does not accept these responses. "This President's transgressions are so deep and the damage to our system of government so extensive that a concerted effort from the executive and legislative branches will be needed. That's why I called this hearing--to hear from legal and historical experts…to not only review what has gone wrong in the past seven or eight years, but to address very specifically what needs to be set right starting next year and how to go about doing it." (www.feingold.senate.gov, 11/16/08)

But Mark Danner argues that just exploring the items on Senator Feingold's list doesn't go far enough: "Revelation of wrongdoing leads not to definitive investigation, punishment and expiation but to more scandal. Permanent scandal. Frozen scandal." (New York Review, 12/4/08. Danner is professor of journalism at the University of California at Berkeley and the author of Torture and Truth: America, Abu Ghraib, and the War on Terror)

Readings 2 and 3 summarize major aspects of three "frozen scandals": America's torture of prisoners, indefinite detainment of prisoners without charge or trial at Guantanamo, and violation of the Geneva Conventions.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Three steps: "rulers and law were synonymous"; "rule by law"; "rule of law." Explain each.

3. Why did Senator Feingold call for a hearing on "Restoring the Rule of Law"?

4. What do you know, if anything, about each of the items the senator cited to support his claim that "the Bush Administration has treated the Constitution and the rule of law with a disrespect never before seen in the history of this country"? If you need more information on any item, how would you go about obtaining it?

5. What do you understand Mark Danner to mean by "frozen scandal"?

6. What questions might Danner's view raise for the incoming Obama administration?

Student Reading 2:
Torture and ignoring the Geneva Conventions

Five days after 9/11, Vice President Dick Cheney said during a Meet the Press interview: "We also have to work through…the dark side…it's going to be vital for us to use any means at our disposal, basically, to achieve our objective."

February 7, 2002: President Bush announced his decision to deny prisoners who were suspected al Qaeda and Taliban fighters the protections of the Geneva Conventions. He said they were exempt from the rules because they were "unlawful combatants," a term the Geneva Conventions do not recognize.

August 1, 2002: As requested by White House Counsel Alberto Gonzalez, a memorandum from Jay Bybee, Assistant Attorney General, declared that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Gonzalez then wrote to President Bush that the criminal prohibition against torture "does not apply to the President's detention and interrogation of enemy combatants pursuant to his Commander in Chief authority" and that executive officials cannot be prosecuted for torture if "they were carrying out the President's Commander-in-Chief powers."

2002-2003: Then National Security Advisor Condoleezza Rice chaired repeated meetings in the White House Situation Room that included Dick Cheney, Colin Powell, Donald Rumsfeld, John Ashcroft, and George Tenet. The subject was "enhanced interrogation techniques." Sleep deprivation and waterboarding were among the tortures described in detail, demonstrated and then endorsed by the Justice Department. President Bush said of the meetings: "I'm aware our national security team met on this issue and I approved." (www.abcnews.go.com, 4/9 and 4/11/08)

President Bush has also stated: "Torture is wrong no matter where it occurs." (6/24/04) "Torture is never acceptable." (1/27/05) "We don't believe in torture." (3/16/05) Reports by the International Committee of the Red Cross, the U.S. military (for example, a report by Major General Taguba), the FBI and a number of human rights groups, among them Amnesty International, provide overwhelming evidence of an official government policy "to work through…the dark side" and to use "enhanced interrogation techniques," which many people regard as a euphemism for torture.

The Geneva Conventions state: "No physical or mental torture, nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever."(Third Geneva Convention). The UN Convention Against Torture also clearly outlaws the use of torture. In addition, in 1996, the U.S. Congress approved the War Crimes Act, which declares that "it is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army."

More than 100 prisoners have died in U.S. custody.

Barack Obama: "I have said repeatedly that America doesn't torture. And I'm going to make sure that we don't torture." (60 Minutes, CBS, 11/16/08) However, Obama has not said what, if anything, he will do about Americans who tortured prisoners and government officials who sanctioned that behavior.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. How do you interpret the meaning of Vice President Cheney's reference to "the dark side"?

3. What are the Geneva Conventions? What do they say about prisoners of war? Why?

4. What reason did President Bush give for denying suspected Taliban and Al Qaeda fighters the prisoner protections of the Geneva Conventions? Why did he call those fighters "enemy combatants"?

5. What powers do the Bybee and Gonzalez memorandums give a president? On whose or what authority? Are these powers granted in the Constitution?

6. What do Bush administration officials mean by "enhanced interrogation techniques"? What difference, if any, is there between them and torture?
If you don't know, how might you find out?

7. What evidence is there to support the charge that the U.S. has tortured prisoners? The president maintains that the U.S. does not torture prisoners. What evidence, if any, do you know of that would support his position? If you don't know, how might you find out?

Student Reading 3:
Guantanamo

"The worst of the worst," declared Defense Secretary Donald Rumsfeld about the more than 750 terrorist suspects ultimately held at the U.S. base at Guantanamo Bay, Cuba, beginning in January 2002. President Bush called them "enemy combatants" and denied them Geneva Convention rights. He said that the "war on terror" was not the usual kind of war and required this action.

In nearly seven years there have been two military trials at Guantanamo. One man from Yemen, who refused to present any defense, was convicted of conspiracy, solicitation to commit murder, and providing support for terrorism. A second man, Osama bin Laden's driver, was given credit for the five years he was imprisoned, and sentenced to five additional months that will be up in January. The third, an Australian, pleaded guilty to providing support for terrorism in exchange for a nine-month sentence and is now free and back in Australia. Two-thirds of the prisoners have been released without being tried for any crime.

After an eight-month investigation, the McClatchy news service published a five-part series of articles, a detainee profile database, and an archive of evidence on the Guantanamo prisoners. They found that "the U.S. imprisoned innocent men, subjected them to abuse, [and] stripped them of their legal rights…." (www.mcclatchydc.com/detainees/)

According to the Bush administration, 250 prisoners remain at Guantanamo. It is not clear what will happen to them. About 50 have been cleared for release--but it's not clear where. If returned to their native countries, they may be imprisoned or tortured or both. About 125 are regarded as too dangerous to release but not guilty enough to prosecute--though we don't know who made that judgment or on what basis. About 80 are regarded as eligible for trial. But we don't know when they might be tried or for what.

In the Military Commissions Act of 2006, Congress, for the first time in American history, declared that non-citizens have no right to habeas corpus. This would have allowed the government to imprison any non-citizen indefinitely without filing criminal charges. But in Boumediene v. Bush, the Supreme Court overturned this denial of habeas corpus, declaring, "The political branches [do not] have the power to switch the Constitution on and off." As a result of this ruling, in October 2008 a federal judge ordered the release of 17 Guantanamo prisoners he said had neither fought the U.S. nor were a security threat to it. "I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention," declared Judge Ricardo Urbina.

In November, federal judge Richard Leon, a Bush appointee, ordered another five men freed because the government's case rested on "a classified document from an unnamed source," giving him no way to consider that source's reliability. Among the five was Lakhdar Boumediene, for whom the Supreme Court's ruling on habeas corpus was named. Judge Leon also ruled that one man in the case was held lawfully because there was some evidence of his connection to Al Qaeda.

"'We have lots of information that is reliable, that tells us someone is a threat and that cannot be proved in court,' said Andrew McCarthy, a former terrorism prosecutor. He added that putting prisoners on trial would present other problems: "... suspects captured in war do not receive protections, like warnings against self-incrimination, that are standard police practice. And much evidence against the detainees is classified; intelligence officials say it cannot be disclosed. Further, some interrogation practices, including the simulated-drowning technique of waterboarding, might leave crucial government evidence unacceptable to American judges." (William Glaberson, New York Times, 11/15/08)

Should Guantanamo be closed?

Barack Obama: "I have said repeatedly that I intend to close Guantanamo, and I will follow through on that." (60 Minutes, CBS, 11/16/08) As a candidate, Obama had said he would try the remaining Guantanamo prisoners in U.S. courts. He has not said what he would do about any who were acquitted or those who could not be tried.

Much remains cloudy but three matters are clear:

(1) The international reputation of the United States government as a faithful practitioner of the rule of law has been badly damaged by its treatment of prisoners and indefinite imprisonment of hundreds of people at Guantanamo and elsewhere without charge or trial.

(2) President Bush's unending "war on terror" was declared not by Congress, as required under Article I, Section 8 of the Constitution, but by the president.

(3) If it is determined that the evidence against detainees was obtained by torture, that evidence will be unusable in any legitimate court. A notable example is the case of Khalid Sheikh Mohammed, who confessed to being the mastermind of 9/11. Human Rights Watch has evidence that Mohammed was tortured while in custody.

(4) If the administration has violated the rule of the law, then the United States Congress has been complicit. Two examples: Congress did not challenge the "enemy combatant" classification of prisoners that opened the door to their indefinite detention at Guantanamo. And Congress passed the Military Commissions Act (which the Supreme Court later ruled was unconstitutional) denying non-citizens the right to habeas corpus and access to all the evidence against them.

A Human Rights Watch report called "Fighting Terrorism Fairly and Effectively" calls on President Obama to "work with Congress to set up a commission of inquiry to investigate, document, and publicly report on post-9/11 counterterrorism-related abuses. The commission should specifically address the question of who should be held accountable for these abuses and how such accountability can be achieved. It should also make recommendations regarding what steps should be taken to ensure that these abuses are never repeated." (www.hrw.org, 11/16/08)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Why haven't more Guantanamo prisoners been charged with a crime and brought to trial? What specific problems, according to the Bush administration, prevent their being treated like ordinary prisoners?

3. Why did Congress and the Bush administration deny habeas corpus rights to prisoners? Why did the Supreme Court overrule that denial?

4. What have been major consequences of holding prisoners suspected of terrorist acts indefinitely at Guantanamo? Who or what is responsible?

5. Do you support the Human Rights Watch call for a commission of inquiry on "counterterrorism-related abuses"? Do you support the idea of determining "who should be held accountable for these abuses and how such accountability can be achieved?"

For Inquiry

Help the class organize itself as a commission of inquiry into possible "post 9/11 counterterrorism-related abuses" that violate the rule of law. Subjects for inquiry might include each of the items on Senator Feingold's list as well as actions of the Bush administration that led to and included the invasion of Iraq.

Before beginning detailed inquiries, ask individual students or small groups to make an introductory investigation of a particular issue or subject and then frame one or more questions for teacher approval to guide further work. For example, students inquiring into "executive privilege" should first gain an understanding of the term, its use historically and why President Bush has been accused of misusing executive privilege. Or, if the subject is Bush administration secrecy, what specific charges have been made? Does this secrecy have to do with national security? Does it violate the public's right and need to know? See "Thinking Is Questioning" for detailed suggestions about helping students learn how to ask and to analyze questions.

Each group within the commission of inquiry should report in writing and/or orally on its findings and lead a class discussion of them.

The materials listed below are available in the high school section of www.teachablemoment.org. Teachers might find them useful with students for particular inquiries.

Torture and the Geneva Conventions:

• "A Sourcebook & Study Guide for High School & College Classrooms: Torture & War Crimes: The U.S. Record in Documents"
• "The Torture Issue (with a DBQ)"

Guantanamo:

• "Presidential Power: Guantanamo's 'Enemy Combatants"
  
• "The Constitution, War Crimes & Guantanamo Justice"
  
• "Supreme Court, Habeas Corpus & Guantanamo Justice"

Warrantless Wiretapping and Data Mining:

• "Presidential Power: Eavesdropping, Terrorism & American Freedoms"
  
• "The New Foreign Intelligence Surveillance Act: A Threat to American Freedoms?"

Executive Privilege:

• "Presidential Power: Executive Privilege"

Signing Statements:

• "Presidential Power: The Signing Statement"

Secrecy:

• "Bush, Secrecy & the Press"

Iraq:

• "Was the U.S. Misled into the War on Iraq?"
  
• "Truth and the Iraq War in Documents"

For Citizenship

See "Teaching for Social Responsibility" for groupwork suggestions as well as class projects in school and out. Whatever course the class takes, one way to conclude its work is for students to prepare e-mails and letters on their findings and thinking about the rule of law to send to their legislators and the president.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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