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Justice Richard B. Sanders.
Editor’s note: Washington Supreme Court Justice Richard B. Sanders made news in November when he yelled “Tyrant!” at then-U.S. Attorney General Michael Mukasey during a Federalist Society dinner in Washington, D.C. Here he explains his thoughts about the Bush administration’s attitude about the rule of law.
If the rule of law means anything, it must mean at least this: Those who act or are in positions of authority in our government are subject to the same laws as everyone else. This has been the American tradition, the crown jewel of a free society, a government of laws, not of men.
However, under the Bush administration, we learned we can no longer take the rule of law for granted.
If the top law-enforcement officer of the United States, our attorney general, chooses not to enforce the criminal law against government agents and officials committing crimes in the name of national security, the “rule of law” is rendered a quaint phrase shorn of substance. Unfortunately, our past attorney general, Michael Mukasey, and his predecessor, Alberto Gonzalez, did just that.
Mukasey even advised President Bush not to issue pardons since — Mukasey reasoned — no crimes were committed. He claimed that “national security” superseded other laws. This is the road to tyranny and a trap for the unwary
If no prosecutions are undertaken, Mukasey’s claim will have prevailed and history will imply no prosecution was possible because no crimes were committed.
Some take the position that we should forgive and forget or “look forward,” as President Obama ambiguously suggested. But “looking forward” without prosecution of past crimes brings the unsettling question of why prosecute future crimes of the same nature? After all, all criminal prosecutions are prosecutions for past acts, not future ones. And, make no mistake, these are real crimes: criminal prisoner abuse, criminal violations of the Federal Intelligence Surveillance Act involving illegal wiretaps, as well as grave violations of numerous treaties and conventions, which are war crimes as defined by federal statute.
Inaction sets a troubling factual precedent, if not a legal one. And as the late U.S. Supreme Court Justice Robert Jackson wrote in his dissent to the 1944 Korematsu opinion, which allowed the imprisonment of loyal Japanese Americans during World War II, the opinion may be discredited, but it is still lying about “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Our new attorney general, Eric Holder Jr., is in the position not only to bring justice and accountability to past acts but to secure our future by making sure the full truth is known about past criminal conduct, and those individuals responsible are tried in a court of law. Truth and consequences are called for unless we are prepared to let history repeat itself. One could not say it better than Holder did in his address to the American Constitution Society last summer:
Although we did not respond to 9/11 by imprisoning Muslim Americans, our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that both violate international law and the U.S. Constitution.
Now, I do not question the motives or patriotism of those responsible for these policies. But this does nothing to mitigate the fact that these steps were wrong when they were initiated and they are wrong today. We owe the American people a reckoning.
Yes, Mr. Holder, you are right. Is it now time you stand by the words so well spoken in your confirmation hearing: “No one is above the law.”
Richard B. Sanders is a justice of the Washington Supreme Court.
Copyright © 2009 The Seattle Times Company
Tags: Alberto Gonzalez, Attorney General Eric Holder, Bush administration's past criminal conduct, illegal wiretaps, imprisoning Muslim Americans, Michael Mukasey, Supreme Court Justice Richard B. Sanders, the rule of law, war crimes
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