In a recent Wall Street Journal opinion piece, Daniel Hannan posits that America is indeed exceptional, and that what makes it so is its adherence to law. To which my immediate reaction was that we would be a more exceptional country if we did adhere to law. But we aren’t. Because we don’t.
We have usually been every bit as prone to following raisons d’état as the most cynical, hard-bitten totalitarian state. When Abraham Lincoln imprisoned suspected Confederate sympathizers without trial and defied writs of habeas corpus so as to keep them locked up, he could not possibly have believed that he was behaving constitutionally; he must have been thinking that it was better to save the Union than to save its Constitution. But he was unquestionably breaking the law as written, and making a mockery of any notion that we were an exceptional nation because of the rule of law.
When MacArthur defied President Hoover’s direct orders and rode down and gassed the Bonus Army (unemployed World War I veterans), he cannot have imagined he was following the law. When FDR interned the Japanese Americans, we can be pretty sure he knew he was violating fundamental civil rights. All of these leaders may have reasonably believed they were preserving order, but they must have known they were undermining the law.
Sometimes, like Lincoln, we violate the laws as written. The more common recent tack is to justify what the rest of humanity would consider lawless behavior by citing our technical conformity with the law as exoneration. With a tangled thicket of laws and a nation full of lawyers, we can usually find a way to bless absolutely any behavior as legal. George W. Bush’s Office of Legal Counsel’s memos blandly asseverating that our acts of torture were legal were chilling classics of this genre.
One path of rationalization is to assert that the only laws that bind us are our own. This is often an approach nations take in matters like espionage. Every nation has laws against espionage – by other nations; few have laws against espionage by themselves. But again, if everyone breaks everyone else’s law, and we do too, we are not all that exceptional in our respect for law. We can assert that we are behaving perfectly legally, and yet we are observing the laws of only one of the world’s two hundred or so nations, which is not a very impressive statistic.
A corollary is refusal to sign treaties that establish new norms of international law. It is an abiding shame of this country that we have refused to sign global climate treaties, a treaty establishing a law of the sea, or even a treaty against land mines. We’re exceptional, all right – in the way a rogue state is exceptional.
Another way is to break other countries’ laws and violate international norms, and pretend we didn’t. We have a long and rich tradition of coups and assassinations committed by our proxies, trained and funded by us. Some highlights just since World War II: Mohammad Mosaddegh (prime minister of Iran ousted in our 1953 coup), Jacobo Arbenz (president of Guatemala ousted in our 1954 coup), Ngo Dinh Diem (president of South Vietnam assassinated in our 1963 coup), Salvador Allende (president of Chile assassinated in our 1973 coup).
Technically it wasn’t exceptional old us breaking the laws and trampling on the constitutions of those countries. Pay no attention to that man behind the curtain!
Undoubtedly the way we do it the most, these days, is by unprecedented intermingling of the law of law enforcement and the law of war. The drones and the continued detentions at Guantanamo seem to have been justified by skipping back and forth between what police can do and what soldiers can do, as is most convenient to us. I do not see much true adherence to neutral principles of law in all of that.
And there are times when the law may truly be on the government’s side, but it is not the kind of law that bespeaks any sort of governmental integrity. The NSA’s apparent reading of everyone’s communications everywhere violates the principle, enunciated in 1929 by Secretary of State Henry Stimson, that “gentlemen do not read each other’s mail.” When we choose to do so anyway, we cease to be gentlemen – which is another way of saying we cease to be exceptional. We trespass upon people’s privacy in exactly the same way as other governments do. Move on, folks, nothing exceptional to see here. We’re acting like lowlifes, just the way everyone else does.
Correction: worse than everyone else does. To all accounts, we are the international masters of poke and pry.
So even if it is all legal — technically speaking — we win no bragging rights about following the rule of law. Go back and rent Judgment at Nuremberg from Netflix. There you will be reminded how the Nazi Reichstag solemnly passed laws that made the Holocaust possible. The post-war tribunals properly convicted the judges who enforced them. Nuremberg established that laws themselves can be illegitimate when they violate human decency and basic rights.
And when you think of the number of horrible things our laws have sanctioned, you can be quite certain we are grand masters of the game of illegitimate laws. We have plenty of them. We deprive the world’s highest percentage of our citizens of basic liberties by imprisoning them, all according to the forms of law. And if our war on drugs isn’t intentionally a war on racial minorities in our country, it sure has a funny habit of looking that way, in violation of our fundamental guarantee of equal protection. Strange too how our laws give full support to grotesque imbalances of wealth between our richest and our poorest citizens, an outcome Pope Francis has justifiably dubbed theft.
No, if by exceptional we mean something good (and not merely egregiously bad), our exceptionalness may perhaps rest more in our aspirations than our achievements in abiding by the law. I’m not suggesting we’ve done nothing exceptional in the good sense. We certainly have done more than our share in changing international norms regarding individual rights of religion, speech, association, and business, as well as the rights of minorities of all sorts.
But it seems we aspire less these days. We never seem to have met a privacy right we did not seek to nullify, usually in the sneakiest way. We have set the law of warfare back a century by rendering the fundamental design of the Geneva Accords a dead letter, not just for us but for all the Western powers who have joined in our mideastern wars. We refuse to join treaties basic to the preservation of life and safety on this threatened planet. Instead of protecting the news reporters who throw light on our shortcomings, we are engaged in unprecedented attempts to dis-empower them and silence dissent by prosecuting leaks. And we fail, time and again, to fix the problems that so recently melted down international finance. Where is that vaunted commitment to the rule of law when we need it?
Mr. Hannan is wrong. When it comes to the rule of law, we’re quite ordinary.
Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com