America Fails the 'Rule of Law' Test

The U.S. doesn't even come close to meeting the standards articulated by its own army. Why isn't establishment Washington alarmed?

Conor Friedersdorf

The U.S. Army field manual defines "the rule of law" as follows: "The rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency."

Going by that definition, the U.S. government does not operate according to the rule of law. A panel of former executive-branch employees, many of whom served in the U.S. military or the CIA, made this point bluntly in a recent report on drones. "Despite the undoubted good faith of US decision-makers, it would be difficult to conclude that US targeted strikes are consistent with core rule of law norms," they declared. "From the perspective of many around the world, the U.S. appears to claim, in effect, the legal right to kill any person it determines is a member of al-Qaida or its associated forces, in any state on Earth, at any time, based on secret criteria and secret evidence, evaluated in a secret process by unknown and largely anonymous individuals—with no public disclosure of which organizations are considered 'associated forces,' no means for anyone outside that secret process to raise questions about the criteria or validity of the evidence, and no means for anyone outside that process to identify or remedy mistakes or abuses."

Just so.

Unfortunately, the U.S. government violates "rule of law" norms in other areas too. The Foreign Intelligence Surveillance Court does not operate with "procedural and legal transparency." The Office of Legal Counsel adopts highly contestable yet totally secret interpretations of statutes that dramatically affect policy outcomes. Citizens and corporations are served with secret court orders and often feel confused about whether they are even permitted to consult with counsel. Laws against revealing classified information are not enforced equally—powerful actors routinely leak official secrets with impunity, while whistleblowers and dissidents are aggressively persecuted for the mere "mishandling" of state secrets. The director of national intelligence committed perjury without consequence. President Obama has blatantly violated a duly ratified, legally binding treaty that requires him to investigate and prosecute acts of torture. He also violated the War Powers Resolution by participating in the military overthrow of Muammar Qaddafi without securing the approval of Congress. And he won't even clarify exactly what groups he considers us to be at war with!

That is only a partial list.

The rule of law's erosion in post-9/11 America was begun by the Bush administration and continued by the Obama administration. Congress has failed to stop it. The Washington, D.C., establishment has done far too little to object. Partisan voters all across America have excused the transgressions of their side.

This cannot go on indefinitely without causing serious harm to our country.

Unlike the Civil War, World War I, or World War II, there will be no definitive date when the War on Terrorism ends. The pattern of wartime abuses followed by a peacetime course correction will not automatically reassert itself in coming years. If the rule of law is to be recovered, lawbreaking officials must be held accountable for their actions, rather than presuming that they can invoke terrorism and do what they please. Congress must stop abdicating its responsibilities as a check on the executive branch. Transparency must once again govern what the law is and how it is applied. All this will require changing the attitudes of at least some respected Washington insiders. If you have constructive thoughts on such a project I invite your emails.