Rule of Law

This is a good old fashioned rant about something I read on a news site.

The Washington Post’s Editorial Board was distraught over movements in the White House to remove Attorney General Jeff Sessions from office as a means to fire Special Prosecutor. In criticism of Trump’s pressure on Sessions to resign, the Post brought up the notion of a rule-of-law state where …powers to police, prosecute and imprison are wielded impartially, with restraint and according to clearly defined rules. These rules apply equally to rich and poor, powerful and weak, ruling party and opposition….

Rule-of-law is the difference between a nation of laws versus a nation of lords (more traditionally, a nation of men). In the latter it is the power of officials to apply force on others. It’s a notion not entirely without merit: Writing laws that comprehensively cover all circumstances is hard. And where such laws are absent, sometimes the holistic consideration by a human being can create a better outcome for all persons connected to an incident of injustice, or that the minds of twelve can effectively determine guilt or innocence. Often, though, not. Judges are commonly tasked to sort out matters beyond their expertise (technology and intellectual property are common culprits leading to books of bad precedents) and sometimes judges and juries are just plain biased as humans commonly are. This is why we like our laws to get extremely specific. It’s why we like rule-of-law.

Ideally we break down the determination of guilt and redress by logical delineations based on the facts we have, and how verifiable those facts are. Ideally, we gather highly-confident solid evidence based on scientific measurements rather than witness testimony. Ideally we determine what happened and by whom to a strong measure of certainty. Ideally the law denotes what behaviors are criminal, and what the penalties are for doing them to excruciating specificity. And ideally the law accounts for most circumstances (such as necessity or coercion). Ideally, these standards are applied regardless of the race, religion, sex or social strata of the accused and of the victim, and ideally these standards disregard irrelevant personal or cultural details, such as whether the assailant was a Juggalo or a Goth, or whether the alleged bank robber is a perv, or whether the victim was dressed too suggestively or otherwise asking for it.

In the United States, despite mistreatment by our British overseers that drove us to seek independence and inspired our Constitutional framers to consider rule-of-law at length, we never got very good at it ourselves. Early on, we set a precedent that some folk (white Christian males) are more equal than others (everyone else). Later on, we got too impatient fighting organized crime, and willfully bent the rules in order to convict high-ranking mobsters. But bending rules led to the understanding that it was okay to bend the rules when circumstances became dire enough. And then that bar drifted ever lower.

Even during our most recent half-century, the trend of the United States has been to drift further away from rule of law in favor of consolidating power, and indulging comfortable prejudices. By the time President Obama left office, the era of cameras had long since revealed a trend of gross abuses of power by law enforcement, and the mainstream discovered what minorities had known for generations: even despite civil rights movements and efforts towards pluralism, we are a segregated society across several axes, and the law affects us differently based on our position along each one.

The public has only just begun in recent years independently cataloguing how often officers shoot civilians. Congress mandates the FBI track all police shootings and report to the Bureau of Justice Statistics every year. The agency just has failed / refused to follow this order for decades. Some precincts don’t even exercise due diligence in filing reports of discharged weapons and slayings of civilians. Once it came to the attention of the public that this data were being suppressed, news agencies and non-profits started to track coroner reports to involvement in police incidents for causal relationships.

In the United States, the public finally started seeing efforts to push for more oversight, advocated by police administrators to reform what has become a culture of antagonism between law enforcement and the public. We’ve started programs such as requiring in officer training, classes in conflict de-escalation and mandating body-cameras to be worn by on-duty officers. (Although the cameras are often still controlled by precincts, not independent oversight parties.) Police Captains miss the trust that’s been lost. Notably, police unions have not, and enjoy the above-the-law status of their membership. Attorney General Jeff Sessions, if we are to judge by his policies, agrees with the unions and not the chiefs.

And thus, contrary to the opinions of the Post Editorial Board, the United States is far from an exemplar to the rest of the world how rule-of-law should be applied. Though for the past centuries, it was a lot easier to pretend that was the case. Only now that technology has unmasked hidden evidence can we demand a higher order of transparency. Through oversight by the public this can change. But it does mean admitting that the United States remains, more than ever, a state of lords, where we are ruled by human preferences of a small elite of officials rather than by clear-cut law. The United States aspires to truth, justice and freedom, but it has achieved none of these to any significant degree.

And Sessions has established by his policies as Attorney General, he is no friend to the rule-of-law: Sessions discontinued reform efforts and has supported the pretense that law enforcement officers are above reproach. He’s throttled up the perpetual war on drugs, focusing again on cannabis despite the movement to decriminalize it (sometimes choosing to push the DEA to enforce federal law in decriminalized counties) He’s chosen to all but ignore the opioid addiction epidemic that is pushing Americans to heroin, except to use this to justify more incarcerations. He’s reinstated for-profit prisons despite their notoriety for inmate abuse in the name of profit. He’s ceased programs to review forensic science methods (e.g. field testing kits) that are known to provide dubious data, specifically false-positives that are then still accepted by judges as valid evidence.

And Sessions has allowed the immigration enforcement agencies to ignore the rules of engagement defined by the courts of law. Specifically, they’re supposed to be prioritizing deportation of undocumenteds convicted of violent crime. Instead, they’re deporting any undocumented persons they can easily gather like bison on the plains, targeting courthouses, schools, churches, hospitals and those who contact the police to report incidents. ICE and CPB have also been targeting American Citizens who can be passed as undocumented immigrants, especially if the means to prove their citizenship can be withheld from them while they are detained. Exiles are then deported to nations that are not their native homes, which often puts them in direct risk of violence, capture and trafficking. All of this is happening under Sessions’ watch and with his knowledge (or at least his refusal to stay informed).

Sessions has been executing his office as if he prefers frontier justice over the rule-of-law. And yes, he recused himself from the Russia probe, but only after being caught omitting incidents of contact with Russian emissaries during the election campaign. Twice. Sessions self-recusal is better explained as being coincidentally proper, but it is more in his character that it was a last resort effort to retain the appearance of propriety under pressure. Now, Sessions’ long-standing loyalty to Trump is being repaid by candid public criticism and efforts to consider the easiest ways to dispose of Sessions. Trump characteristically will sacrifice even his most loyal friends if he believes doing to will save his own hide, and Sessions is likely the next victim. I won’t say this turn of events is just, per se. But considering Sessions’ policies and respect for justice-for-all. It certainly is poetic.

Still, there is a cautionary tale here in very Martinian form: if you participate in corruption, steering the system away from rule-of-law and towards jungle law, you can’t expect to rely on the safety and security that rule-of-law provides. Might becomes right where we don’t actively sustain a system to define right by a better standard of fairness and defend that standard for all.

And it surprises me that the Post Editorial Board doesn’t seem to read its own news. Recent events have shown us the acquittal of Jeronimo Yanez, The slaying of Justine Damond, Sessions closure of the National Commission on Forensic Science, his dismissal of DoJ reports on police abuse. These are not symptoms of a nation of laws. Rather our aspirations to rule-of-law have been torn asunder by a rising police state that we mostly ignored during an era when our president was less monstrous.

Perhaps having a monster for a President gives us the reality check we need.

We can be thankful Trump retains an antagonistic relationship with the intelligence community. But short a major electoral reform movement, Trump’s election into office foreshadows the election of future monster-presidents, some who might embrace the intelligence community, and will persue their agenda of routing out dissidents with efficiency and ferocity.

And that will end the Land of The Free.


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