We have at the present time two government leaders, a president and a vice president, who, according to all available evidence, have carried out grave crimes. Will these two men leave office and live out their lives without being subjected to legal proceedings? Such proceedings will surely release new documents and provide additional testimony important in resolving their guilt or innocence. But the public record is now so elaborate, so detailed, and validated from so many directions that a weight is on the population’s shoulders: does our
already existing knowledge of what they have done obligate us to press for legal redress?

The question is painful even to ask, so painful that we may all yield to an easy temptation not to pursue it at all.

Iraq Flag Memorial, Waitsfield, VT
Iraq Flag Memorial, Waitsfield, VT

A major seduction away from prosecution is the euphoria that has surrounded the 2008 election campaign, even as the contest sharpens. “America at its Best” reads the front cover of the June 5, 2008 issue of
The Economist, with a photograph of Barack Obama and John McCain pictured there. The elated sense that we might be restored to dignity in our own eyes and in the eyes of the world has rightly been credited first and foremost to Barack Obama, to his spiritual carriage, his open cadences, his refusal to degrade opponents or adversaries. But John McCain, too, is responsible for the atmosphere of well-being. Despite the large areas of overlap between his beliefs and those of George Bush, he has come before the electorate with a voice free of greed and cruelty. On countless occasions, he has spoken clearly about torture at a time when many other people have spoken confusedly.

This confidence in the power of the presidential nominees to restore us to ourselves is based above all on one attribute—not charisma, not eloquence, not heroism, but another quality that they share: their commitment to the rule of law. Since November will almost surely bring a return to the rule of law, why not devote our energies and full attention to the electoral process? To keep our eyes on the nominees is to be filled with renewed self-belief; to turn back to the current administration is to feel heartsick and ashamed. Why willingly look in one direction when one can look in the other?

First, because November will only “almost surely,” not surely, bring a return to the rule of law. Between now and November, any one of us could be taken ill, and so could one of the candidates. If John McCain suddenly became ill, for example, the Republican commitment to the rule of law would instantly cease to exist with clarion certainty. Anyone who doubts that a return to confusion is possible should be reminded that as late as this spring—when Bush vetoed a bill that outlawed the use of torture by the CIA—the Congress failed to achieve the two-thirds affirmative vote that would override the veto. The vote, like other congressional votes on torture, split along party lines. The pool of candidates committed to the rule of law is not deep: there are no back-up Republican candidates who have spoken out decisively against torture or the need to close Guantánamo. Moreover, McCain or Obama might lapse from law. Indeed, McCain—whose aggressive insistence on war with Iraq began within days of 9/11—voted with his party and President Bush on the CIA bill. McCain has consistently opposed making the federal courts available to detainees, and he condemned the recent Supreme Court decision ensuring habeas corpus protections for Guantánamo detainees as “one of the worst” in the country’s history.

Still, and this is a second reason to address the wrongdoing of the current administration, let us suppose what is fair to suppose, that Barack Obama and John McCain continue in good health, are as wedded to the law as they appear, that one of the two is elected fairly and honestly, and that the country begins its mighty pivot back to its gravitational center in the rule of law. It will be almost like a miracle cure, an overnight release from our eight-year-long affliction.

Or will it? What will this shift over to the rule of law mean? It will mean that when we are led by a person who does
not believe in the rule of law, we will
not as a country follow the rule of law; and when we are led by a person who
does believe in the rule of law, we
will follow the rule of law. If that is the case, the United States will continue to be what it has been during the last eight years: a country governed by the rule of men (their beliefs, their preferences, their choices), not by the rule of law (where beliefs, preferences, and choices are constrained by invariable and nonnegotiable prohibitions on cruelty and fraud). Just as one might in the past have said, “this president was short whereas the next president was tall” or “this president was isolationist whereas as the next president was internationalist,” so now one might shrug and say, “this president believed it was his prerogative to torture whereas the next president believed it was not.” The incalculable damage left by Bush and Cheney’s day-in-and-day-out contempt for national and international law includes the power to sweep forward in time and trivialize into a matter of personal preference any future president’s adherence to the law. Will we become a country in which the rule of law is just another policy preference? Do we really think that the rule of law is to be left in the hands of our leaders?

In deciding about legal redress, we need to be clear about the large stakes in our decision. The very multiplicity of the apparent crimes, the sheer array of arguably broken laws, is dizzying. But that multiplicity must be faced, for in it we will see that what got in President Bush’s way was not any one law but the rule of law itself. It is the rule of law that has been put in jeopardy by a project of executive domination; it is the rule of law that will continue to be in peril; and it is only, therefore, by addressing the crimes through legal instruments—through a formal, legal arena, and not simply through the electoral repudiation of bad policy—that the grave and widespread damage stands a chance of being repaired.

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