Monday, October 20, 2008

The Rule of Law and the Blessings of Liberty

What separates the jungle from civilized society is that, while one rests on the law of force, the other is founded on the force of law. What differentiates legitimate government from an organized protection racket is just this. Hoodlums and tyrants rely on the rule of power, while honest leaders depend on the power of rules. For it's the rule of law, based on principles of mutual fair play, that guarantees our well-being, creating a community where contracts are enforceable, where environmental and workplace standards can be insisted on, where property is secure, where police are professionals rather than serving as private armies for whatever gang is currently in office.

To bring the rule of law to a world drenched in anarchy, the United Nations sixty years ago adopted the Universal Declaration of Human Rights. To protect the individual against the mob, and to resolve conflicts without resort to violence or vigilantism, people around the world needed the safeguards of due process. So in words reminiscent of our own Declaration of Independence, the Universal Declaration affirmed that "Everyone has the right to life, liberty and security of person." The opening articles, like our own Bill of Rights, guaranteed a list of legal protections. "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Everyone has the right to recognition everywhere as a person before the law. All are equal before the law … Everyone has the right to an effective remedy by the competent national tribunals … No one shall be subjected to arbitrary arrest, detention or exile. Everyone is entitled .. to a fair and public hearing … of any criminal charge against him. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence." Peace, the originators of the U.N. realized, has to rest on a foundation of justice. And justice has to be written in the language of legalese.

It's not hard to see that the Universal Declaration was the work of jurists and attorneys, just as our own Constitutional Convention in 1787 was a delegation made up primarily of lawyers who believed the rule of law was key to obtaining the blessings of liberty. Like our own nation's charter, the Declaration of Human Rights was intended to protect people against arbitrary assault--bullying, threats and capricious harassment. It would secure them in their homes and families and livelihoods, by working toward a social order founded on right, not might. For where the rule of law is missing, corruption thrives. Cronyism flourishes. Lawlessness prevails. Think of the mercenaries of the security firm Blackwater—which claimed to be immune from Iraqi law, exempt from U.S. military codes, and also beyond the reach of American jurisprudence. In such an environment, thuggery is rewarded. The scum of society rises to the top.

And sadly, this is the situation in much of the world today, and increasingly in our own country also, under an administration which has demonstrated contempt for both the Constitution and internationally binding agreements, an administration which has become an outlaw regime in the eyes of much of the civilized world.

Criminal charges are mounting. Italy last year indicted twenty-six Americans involved in the extraordinary rendition of Abu Omar, a Moslem cleric disappeared from a mosque in Milan and subsequently flown to be tortured in Egyptian prisons. The indicted include the former CIA station chief in Milan, who said his opposition to the plan to kidnap the imam was overruled by those higher-up the chain of command.

In Spain, which successfully tried and convicted the Chilean strongman Augusto Pinochet, a lawsuit is now pending against former U.S. officials including Defense Secretary Donald Rumsfeld, Attorney General Alberto Gonzales and CIA Director George Tenet, a case strengthened by the willingness of Abu Ghraib commandant, Brigadier General Janis Karpinski, to testify against her superiors.

More recently, according to the New York Times, a confidential investigation by the International Red Cross into conditions at Guantanamo Bay called the mistreatment of prisoners there "categorically torture," in contravention of both U.S. and international law, and "warned that the abuse constituted war crimes, placing the highest officials in the U.S. government"—presumably including the President—"in jeopardy of being prosecuted."

While the White House Chief Counsel called the Geneva Conventions "quaint" and "obsolete," it's important to realize that these rules and other laws of war like the Hague Conventions that prohibit rape and torture, that forbid targeting civilians, the use of child soldiers, and other outrages, are neither recent inventions nor outmoded relics. They reflect centuries of religious reflection on what constitutes a just war, and until recently they embodied a non-partisan consensus that claimed solid Republican support from Abraham Lincoln to Colin Powell.

But torture is only a symptom of the lawlessness in Washington. A deeper sign appeared at our church door last week: Ali with his wife Rawa and their six-year-old daughter Sama, newly arrived in Burlington from a refugee camp in Syria, where they had fled from their home in Baghdad. A balding, middle-aged man, with a friendly, deferential manner, Ali spoke good English. He and his wife each had college degrees and were looking for work. I learned they were temporarily being housed with a host family through Refugee Resettlement, and were actually living just a few doors away from me in the New North End. They were literally my neighbors. So I wrote them a small check. I promised that our congregation could help if they needed bedding or furniture or other practical items for setting up a household. But then I remembered Martin Luther King's advice—that being a good neighbor means more than playing the Good Samaritan, dispensing charity to those in need. It also requires investigating the entire Jericho Road to learn why so many wayfarers are being robbed and beaten by life's roadside.

Why are so many people arriving at our doors in need of shelter? A July newsletter from Vermont Refugee Resettlement gave part of the answer, indicating that Iraqis for the third year in a row make up the world's biggest contingent of new refugees. Somalia, another battleground in the so-called "war on terror," is the second leading source of new refugees, according to the Resettlement office. But new or old, most of the world's dis-located people come from Afghanistan. If you see a pattern there, you're beginning to glimpse the Jericho road.

All come from nations marked by sectarian strife, civil unrest, ethnic rivalries run amok. Many, especially those from Iraq, are people who have been brutalized because of U.S. wars of aggression. Operation Iraqi Freedom has been a war based on false pretense, a war that was unprovoked, a war that the majority of Iraqis regard as an occupation rather than a liberation, a war that has cost the lives of over four thousand Americans and hundreds of thousands of Iraqis, uprooting untold numbers from their homes. Official statistics put the figure at two million, while Ali told me the refugee total was closer to five. Such wholesale suffering inflicted on the innocent, on children, women and other non-combatants is why the International Tribunal at Nuremburg called such a war of aggression "not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

And who is responsible for such a war if not the commander-in-chief? Recently I stood for half an hour with the peace vigilers who meet each afternoon at the top of Pearl Street, in front of our meetinghouse. From a big bag of prepared placards, I chose a sign to hold, lettered in red and black, announcing the message "Stop War." A good sentiment, perhaps. But stopping war, I realized, would take more than holding signs or getting motorists to wave. It would require tribunals like the International Criminal Court–courts with the legal authority to hold rogues and warmongers accountable.

The Court was instituted in response to the horrors of Rwanda and the former Yugoslavia in the 1990's, to hear cases involving crimes against humanity, ethnic cleansing, genocide, and wars of aggression. Countries like France, Germany, Belgium, Australia, Canada and the United Kingdom, Sweden, and Finland have all signed the treaty making their citizens subject to the Court's rulings. But not the United States, which joined despotisms like Libya, Quatar, and Yemen in opposing the Court's creation.

Make no mistake: fear of prosecution is the main reason the United States has refused to sign. While President Bush can pardon himself along with Dick Cheney and others in his cabinet before leaving office, and while the Military Commissions Act he pushed through Congress exempts military personnel from being charged with torture under U.S. law, Mr. Bush remains subject to being criminally charged abroad. And this is why the administration has worked hard to bribe other nations into signing bilateral immunity agreements. Caribbean states, for example, have been told they would lose needed funds for hurricane relief unless they promised to never prosecute any American citizen–from army privates to U.S. presidents-- for violations of human rights. Thanks to bilateral immunity, the Bahamas may be a safe place for war criminals to vacation or retire.

But the rest of the world should demand accountability. Of the two candidates, Barak Obama has pledged to end torture as a tool of U.S. policy. John McCain, after being tortured himself as a P.O.W., in North Vietnam, reversed his longstanding opposition to "enhanced interrogation" this past winter. Unfortunately, neither presidential contender has promised to join the community of nations supporting the ICC. That has to change. But more importantly, those responsible for the abuses at Abu Ghraib and Guantanamo and plunging the world into war need to be brought to the bar.

Nothing less will restore America's moral standing in the world. Nothing less will restore respect for the rule of law in our country. In the long run, nothing else will stem the tide of humanity uprooted from their homes and knocking on our doors. Nothing less will make the whole Jericho road safe to walk again for all earth's people.

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