[ The following verbal ramble is an excerpt from an even longer piece I recently posted at the cabin in the wilderness where our esteemed founder somehow discovered me. ]
It seems obvious that the Supreme Court’s ruling in Hamdan vs. Rumsfeld is a step in the right direction, toward the reinstatement of the rule of law as the governing principle for society in the United States.
Whether the decision will make any difference in practice is of course another question. The MBA President has run the federal government much the way Bill Gates has run Microsoft: ruthlessly, illegally, and successfully, if by success you mean high profit margins for the investors.
The Bush family system is built on kickbacks and cronyism. Baseball, oil, savings and loans, the US Treasury: they loot what they can find. It’s a little like a Roman patron and the farmers who depended on his road to get their products to market: the titular head of the organization both commands and takes commands from his followers, whose necessities become his own.
The biggest necessity of the Bush clientes is generally fresh floods of cash, preferably the kind that isn’t being strictly accounted for. But the most important clientes, the oil folks, are also in constant need of new supplies. Both requirements are fulfilled by conflict in the Middle East. And surprise! Both Presidents Bush pursued such wars with the single-minded vigor of war criminals, ignoring opportunities for negotiations while claiming to go the last mile for peace, coercing smaller countries into joining the US “coalition”, and using the secrecy of national security to hide their murderous deeds.
With Hamdan, though, the Supreme Court seems to have ruled against the unitary executive: the President does not have unchecked power to do whatever he wishes in prosecuting his war profiteering. He is only Commander in Chief during wartime; and even then he must obey the law. Echoing Justice O’Connor’s line in a previous Guantánamo case, Justice Breyer wrote, “The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check’”.
When Microsoft is convicted of illegal business practices, it normally announces the next day that it intends to a build a new product, which will revolutionize computing. Upon examination the new product turns out to be exactly like the old, including the part that made the whole thing illegal. The Softies then begin to sell the new product, in direct violation of the court’s ruling. The government takes them to court, and eventually wins an injunction; often, the judge takes the time to write a special rebuke to the company and its lawyers for willfully ignoring the law.
But elections can alter the picture, and in any case money is always changing hands behind the scenes. Soon a new attorney general or a new prosecutor comes along, and suddenly the government no longer feels it has a case. Or, if a judgement has already been handed down, the government decides not to enforce the penalties in exchange for a promise of improved behavior. Which is always violated.
The unitary executive theory, employed by a master, allows criminals and scofflaws to avoid any punishment other than the court case itself, which by now appears to be something of a minor sport for the lawyers, techno-liars, and marketing folks who produce the Microsoft cases.
Bush and Edgar Cheney have not failed to imitate the master with regard to attitude. However, they may have failed to consider a critical difference between the master’s situation and their own.
American business people seem to enjoy modeling the world as a jungle in which they are animals, struggling each against each to feed themselves and their dependents. Inside a company, there is often some sense of group endeavor, but competition for scarce resources is rarely far from anyone’s mind, whether the resources are internal funding or the customer’s dollar.
In fact, Americans in general like to see themselves as under attack. (Presumably this is because they have so little experience with the real thing.) The Left Behind-style Christians in particular conceive of themselves in relation to the oppression they feel they suffer, though from the outside the only visible oppression is their inability to force others to behave as they would like.
It’s a Hobbesian world — and then again it’s not. Americans have long understood Bertrand Russell’s point:
The injustice, the cruelty, and the misery that exist in the modern world are an inheritance from the past, and their ultimate source is economic, since life-and-death competition for the means of subsistence was in former days inevitable. It is not inevitable in our age. With our present industrial technique we can, if we choose, provide a tolerable subsistence for everybody.
One of the aspects of the new nation that most impressed Tocqueville was the ease and frequency with which Americans formed groups. In Europe as in America, corporations were rare, and governments had significant influence over their actions. To a monarch, any effective group constituted a challenge and was monitored as such. But in the young United States, Tocqueville saw people forming groups at the drop of a hat, for purposes serious and otherwise.
We Americans have wrapped ourselves around the dichotomy between the individualist ethic and the pioneer spirit of community as fully as the dichotomy between democracy and capitalism. But in neither case have we really synthesized the two halves; we’ve just ignored the problem and turned on the TV.
[ For more discussion of these dichotomies and how we might deal with them, see the full article. ]