The right's explicit and candid rejection of "the rule of law"

Wednesday May 2, 2007 10:32 EST

-- Glenn Greenwald

(updated below)

The Wall St. Journal online has today published a lengthy and truly astonishing article by Harvard Government Professor Harvey Mansfield, which expressly argues that the power of the President is greater than "the rule of law."

The article bears this headline: The Case for the Strong Executive -- Under some circumstances, the Rule of Law must yield to the need for Energy. And it is the most explicit argument I have seen yet for vesting in the President the power to override and ignore the rule of law in order to recieve the glories of what Mansfield calls "one-man rule."

That such an argument comes from Mansfield is unsurprising. He has long been a folk hero to the what used to be the most extremist right-wing fringe but is now the core of the Republican Party. He devoted earlier parts of his career to warning of the dangers of homosexuality, particularly its effeminizing effect on our culture.

He has a career-long obsession with the glories of tyrannical power as embodied by Machiavelli's Prince, which is his model for how America ought to be governed. And last year, he wrote a book called Manliness in which "he urges men, and especially women, to understand and accept manliness" -- which means that "women are the weaker sex," "women's bodies are made to attract and to please men" and "now that women are equal, they should be able to accept being told that they aren't, quite." Publisher's Weekly called it a "juvenile screed."

I'll leave it to Bob Altemeyer and others to dig though all of that to analyze what motivates Mansfield and his decades-long craving for strong, powerful, unchallengeable one-man masculine rule -- though it's more self-evident than anything else.

But reading Mansfield has real value for understanding the dominant right-wing movement in this country. Because he is an academic, and a quite intelligent one, he makes intellectually honest arguments, by which I mean that he does not disguise what he thinks in politically palatable slogans, but instead really describes the actual premises on which political beliefs are based.

And that is Mansfield's value; he is a clear and honest embodiment of what the Bush movement is. In particular, he makes crystal clear that the so-called devotion to a "strong executive" by the Bush administration and the movement which supports it is nothing more than a belief that the Leader has the power to disregard, violate, and remain above the rule of law. And that is clear because Mansfied explicitly says that. And that is not just Mansfield's idiosyncratic belief. He is simply stating -- honestly and clearly -- the necessary premises of the model of the Omnipotent Presidency which has taken root under the Bush presidency.

This is not the first time Mansfield has expressly called for the subordination of the rule of law to the Power of the President. In January of 2006 -- in the immediate aftermath of revelations that President Bush had been breaking the law for years by spying on the telephone conversations of Americans without warrants -- Mansfield went to The Weekly Standard and authored a truly amazing article, which I wrote about here (see item 2).

Unlike dishonest Bush followers who ludicrously claimed that Bush's eavesdropping was not illegal, Mansfield embraced reality and candidly argued that President Bush possesses the power to break the law in order to fight The Terrorists. The headline of that article presented the same mutually exclusive choice as the WSJ article today: The Law and the President -- in a national emergency, who you gonna call?

In that article, Mansfied claimed, among other things, that our "enemies, being extra-legal, need to be faced with extra-legal force"; that the "Office of President" is "larger than the law"; that "the rule of law is not enough to run a government"; that "ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion"; that "with one person in charge we can have both secrecy and responsibility"; and most of all:

Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to consider emergencies when liberties are dangerous and law does not apply.

"Law does not apply" -- that is Mansfield's belief, and the belief of the Bush movement. I didn't think it was possible, but Mansfield, with today's article in The Wall St. Journal, actually goes even further in advocating pure lawlessness and tyranny than he did in that remarkable Weekly Standard screed. He begins by describing "the debate between the strong executive and its adversary, the rule of law." He then says: "In some circumstances I could see myself defending the rule of law," but "the rule of law has two defects, each of which suggests the need for one-man rule."

The rule of law has two defects, each of which suggests the need for one-man rule. That is what is on the Op-Ed page of The Wall St. Journal this morning. The article is then filled with one paragraph after the next paying homage to the need for a Great Leader who stomps on the rule of law when he chooses -- literally:

The best source of energy turns out to be the same as the best source of reason--one man. One man, or, to use Machiavelli's expression, uno solo, will be the greatest source of energy if he regards it as necessary to maintaining his own rule. Such a person will have the greatest incentive to be watchful, and to be both cruel and merciful in correct contrast and proportion. We are talking about Machiavelli's prince, the man whom in apparently unguarded moments he called a tyrant. . .

The president takes an oath "to execute the Office of President" of which only one function is to "take care that the laws be faithfully executed." In addition, he is commander-in-chief of the military, makes treaties (with the Senate), and receives ambassadors. He has the power of pardon, a power with more than a whiff of prerogative for the sake of a public good that cannot be achieved, indeed that is endangered, by executing the laws. . . .

In quiet times the rule of law will come to the fore, and the executive can be weak. In stormy times, the rule of law may seem to require the prudence and force that law, or present law, cannot supply, and the executive must be strong.

In the course of explaining how the rule of law applies only in "quiet times," Mansfield also argues that "civil liberties are subject to circumstances," not inalienable, and that "in time of war the greater dangers may be to the majority from a minority." Thus, he explains -- in what might be my favorite sentence -- "A free government should show its respect for freedom even when it has to take it away."

I'm not going to spend much time rebutting the notion that the American President has the power to act as a Prince and override the rule of law when circumstances supposedly justify that. For one thing, given that this belief has governed our country since the 9/11 attacks, I've made the argument many times before, including here and here, as well as in my book.

But more so, one would hope that no response is really necessary, since most Americans -- outside of the authoritarian cult that has followed George W. Bush as Infallible War Leader -- instinctively understand that America does not recognize such a thing as a political official with the power of "one-man rule" that overrides the rule of law. That we are a nation of laws, not men, is so basic to our political identity that it should need no defense.

And for those with any lingering doubts about how repugnant Mansfield's vision is to the defining American political principle, I would simply turn the floor over to the great American revolutionary Thomas Paine (.pdf), writing in Common Sense:


The point here is not to spend much time arguing that Mansfield's authoritarian cravings are repugnant to our political traditions. The real point is that Mansfield's mindset is the mindset of the Bush movement, of the right-wing extremists who have taken over the Republican Party and governed our country completely outside of the rule of law for the last six years. Mansfield makes these arguments more honestly and more explicitly, but there is nothing unusual or uncommon about him. He is simply expounding the belief in tyrannical lawlessness on which the Bush movement (soon to be led by someone else, but otherwise unchanged) is fundamentally based.

This is why he is published in The Weekly Standard and The Wall St. Journal -- the two most influential organs for so-called "conservative" political thought. All sorts of the most political influential people in our country -- from Dick Cheney to Richard Posner to John Yoo and The Weekly Standard -- believe and have argued for exactly this vision of government. They literally do not believe in our constitutional framework and our most defining political values. They have declared a literally endless War which, they claim, not only justifies but compels the vesting of unlimited power in the President -- "unlimited" by Congress, the courts, American public opinion and the rule of law.

That continues to be the central political crisis we have in this country. It is an encouraging development that Congress is exercising aggressive oversight and investigative powers, but the administration is stonewalling completely, and will continue to, because they do not recognize any duty to respond, to answer questions, to be subject to scrutiny or accountability. We live in stormy times, and thus, as Mansfield says: "In stormy times, the rule of law may seem to require the prudence and force that law, or present law, cannot supply, and the executive must be strong."

That is why -- as jarring as it is -- it is actually necessary to ask presidential candidates whether they intend to exercise the power to imprison American citizens with no charges of any kind. The dominant political movement in this country believes in that power and has defended and exercised it. Mansfield's beliefs may be twisted and tyrannical and radical and profoundly un-American. But they are also the beliefs that have propelled our government for the last six years and -- absent some serious change -- very well may continue to propel it into the future.

UPDATE: I just want to add one related point here. Much of the intense dissatisfaction I have with the American media arises out of the fact that these extraordinary developments -- the dominant political movement advocating lawlessness and tyranny out in the open in The Wall St. Journal and Weekly Standard -- receive almost no attention.

While the Bush administration expressly adopts these theories to detain American citizens without charges, engage in domestic surveillance on Americans in clear violation of the laws we enacted to limit that power, and asserts a general right to disregard laws which interfere with the President's will, our media still barely discusses those issues.

They write about John Edwards' haircut and John Kerry's windsurfing and which political consultant has whispered what gossip to them about some painfully petty matter, but the extraordinary fact that our nation's dominant political movement is openly advocating the most radical theories of tyranny -- that "liberties are dangerous and law does not apply" -- is barely noticed by our most prestigious and self-loving national journalists. Merely to take note of that failure is to demonstrate how profoundly dysfunctional our political press is.

-- Glenn Greenwald

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Tuesday May 1, 2007 10:27 EST

Fred Hiatt and the "Triumphant Top Gun"

(updated below - Update II - Update III)

Thus far in 2007, the most politically insightful observation was made by Rep. David Obey in responding to one of Fred Hiatt's war-mongering, patriotism-challenging screeds: "Let me submit to you the problem we have today is not that we didn't listen enough to people like the Washington Post. It's that we listened too much."

As the Four Year Anniversary of "Mission Accomplished Day" approaches, and we fondly recall the inspiring media swooning over George Bush's glorious Declaration of Victory while prancing around in his fighter pilot costume, there are few commentaries as revealing as the Bush-worshipping Editorial in The Washington Post authored by Fred Hiatt on May 11, 2003.

The Editorial Hiatt churned out that day (via Lexis -- and also, via sysprog, here) -- devoted to mocking Democrats for criticizing the Leader's Mission Accomplished Festival -- by itself could serve as a time capsule conveying to future generations all that went wrong in our country during this period. First is the Editorial's headline:

Misfiring at 'Top Gun'

George Bush shows off his powerful "top gun." Democrats who criticize him "misfire." The Editorial begins, right in its headline, with drooling adoration for the Leader's faux masculinity so transparent and cringe-inducing that it actually rivals the incomparable Chris Matthews-G. Gordon Liddy session that included admiration for the size of the President's genitalia (literally) so candid and frank that it was virtually pornographic. These are our serious pundits and foreign policy analysts.

This is the first paragraph of Hiatt's Editorial:

DID PRESIDENT BUSH arrive by fighter jet when he could have taken a helicopter -- for $ 7 less per hour? Did the USS Abraham Lincoln delay its return by a day so that Mr. Bush could make his dramatic tailhook landing? Did White House press secretary Ari Fleischer lie when he said that Mr. Bush had to arrive by jet and then switched his story to say that the president chose to land that way? Are the Democrats who are raising these questions secretly working for Karl Rove?

Democrats who question the Leader's conduct or challenge the veracity of his statements are foolish and are inviting their own political doom. War Leaders are endowed with the prerogative of telling us Glorious Lies. It continues:

Presidential staffs -- and we know this is a shocking concept -- worry quite a bit about the way their visits will look on TV -- and they work to get the most picturesque backdrop! And a president who wins a war -- whether you agreed with that war or not -- pretty much gets to greet returning troops wherever he wants.

The Leader won the War in Iraq in May, 2003. Let's repeat that: Fred Hiatt declared, in May, 2003, that George Bush had won the Iraq War. And the triumphant Commander-in-Chief is entitled to engage in whatever Victory Rituals he wants without having to be questioned or challenged. Then:

Not since the ado over whether Mr. Clinton held up Air Force One on the tarmac for an hour to get a $ 200 haircut has there been a controversy this fundamentally silly. The difference is that the Republicans scored political points with haircut-gate; here, Democrats are only hurting themselves with churlish and petty complaints.

The false "controversy" over Clinton's haircut was a powerful political weapon in the potent hands of the Republicans. But challenging President Bush's Declaration of Victory in a plainly not-yet-completed war, and objecting to the grotesque propaganda used to do it, is both petty and self-destructive. And:

Their real gripe with Mr. Bush is that he looked great; the president pulled off his "Top Gun" act as much as Michael Dukakis flubbed his spin in a tank.

George W. Bush is a real warrior who is strong, powerful, masculine and a genuine Man -- even swooningly hot ("he looked great") -- unlike the effeminate, clumsy loser Democrats. The sober, serious Hiatt continued:

And what was the result of their agitating? Even more showings of the same dramatic footage of a triumphant commander-in-chief. The only rational explanation for this conduct is that it is a brushback pitch designed to intimidate the Bush campaign from using carrier footage in campaign commercials -- but even then, it seems destined (a) not to work and (b) to backfire.

George W. Bush was not a public servant. He was not even merely the President. He was the "triumphant commander-in-chief." Therefore, to do anything other than genuflect to his warrior greatness was both improper and stupid. After all, he just won the Iraq War. Finally:

Yes, yes, Republicans seemed to demand investigations every time Mr. Clinton -- or Hillary Clinton, for that matter -- went outside the Beltway, but Democrats are sorely mistaken if they think the "they did it too" argument is going to have any sway with voters. Mr. Bush's visit to the USS Abraham Lincoln may have been the real kickoff of his presidential campaign. If the Democrats' tone-deaf handling of this episode is any indication, he may well get his four more years.

Just because Republicans investigated Bill Clinton for every petty accusation they could invent does not mean that Democrats should try to exercise oversight over the Triumphant Commander-in-Chief. Voters don't want the Victorious War President criticized, and to think otherwise is "tone-deaf."

Any decent human being who authored such idiocy -- who declared the War in Iraq to have been "won" back in May, 2003 and who openly drooled over the "top gun" of the "triumphant Commander-in-Chief" -- would feel a sense of deep shame and regret. But Fred Hiatt continues to prance around as the Serious Adult in Washington, the one who is sober and sophisticated about hard-nosed matters of foreign policy and war, and who continues to mock those who oppose the war as unserious losers -- as though Fred Hiatt's judgment is worth anything.

As Rep. Obey put it: "those of us who voted against the war in the first place wouldn't have nearly as hard a time getting us out of the war if people like The Washington Post and those who criticized us on the floor yesterday hadn't supported going into that stupid war in the first place."

UPDATE: The Politico -- appropriately enough -- is hosting the first debate for GOP presidential candidates, and is deciding which questions to submit based upon popular vote. Silent Patriot of Crooks and Liars had an excellent idea -- to submit a question asking the candidates to state their views as to whether the President has the power to imprison U.S. citizens without charges or process of any kind (a la Jose Padilla), in light of the prior revealing answers from Rudy Giuliani and Mitt Romney to that question.

S.P. has now submitted the question to The Politico, and has also posted instructions for how you can vote for that question, to ensure that it gets asked (you basically go here, search for "Silent Patriot," and click the "I LIKE THIS QUESTION" button under that question; it's now the most popular question, so it should be at the top).

It's a worthwhile exercise, I think, in order to compel the GOP candidates to go on record as to whether they intend to claim the power to imprison American citizens without charges (I'd like to hear Democratic candidates answer that as well). Vote early and often (rules permitting, of course).

UPDATE II: One has to acknowledge that this commenter at C&L makes quite a good point:

I just can't believe that here in America such a question would be even asked. What the hell happened to our country? Can you imagine that question being asked in the past elections before 2004? No one would have even thought of it.

The most extremist behavior has become so normalized in the last five years that it is easy to forget just how radical it is. The fact that the question even needs to be asked at all -- let alone that most, if not all, of the GOP candidates will almost certainly embrace (or at least not reject) the tyrannical power of process-less imprisonment of U.S. citizens -- is itself rather remarkable.

UPDATE III: The question we submitted regarding lawless detentions of U.S. citizens is now at the top of the list as the most popular question (but keep voting for it to ensure it stays there). As a result, we have decided to submit as many questions as possible, to ensure that the GOP candidates are forced to answer real questions (the top 20 or so highest vote-getting questions will be asked of the candidates).

Thus far, we have submitted these additional questions:

* Do you think the process of waterboarding -- where the U.S. takes prisoners, straps them to a chair, and pours water on their face so they are in terror of drowning to death -- is a practice consistent with America's moral credibility in the world? -- Vote for that question here (search for "Silent Patriot" or the text of the question) -- two of these questions are now on that page for the top vote-getters

* A recent worldwide poll showed that under the Bush presidency, America has become the third most unpopular country in the world -- right behind Iran and just ahead of North Korea. Why has that happened? -- Vote for that question here (search for "CrooksandLiars" or the text of the question)

To vote for those questions, go to the linked page, find the question, and click the "I LIKE THIS QUESTION" button under each questions (you may have to click to the next page to find it). If you have suggestions for more questions, feel free to email them or leave them in comments (there is a 250-character maximum, so they must be quite short and concise).