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What's Law Got To Do With It?

By Reza Fiyouzat


In an article titled, Blueprints for a Police State (Counterpunch, March 4, 2009), Marjorie Cohn, sets out clearly the role of two key figures in the drafting of a set of memoranda that overturned the most basic protections American citizens had against arbitrary state harassment and violence, effectively turning the U.S. into a police state.


Cohn has consistently recorded former administration of George W. Bush's violations of some of the most fundamental laws protecting civil liberties. She, along with Michael Ratner and Center for Constitutional Rights and others, have been vocal advocates of bringing key Bush administration officials to justice, for their willful violations of the U.S. laws, as well as international laws, for committing war crimes and crimes against humanity, and for their torture policies, as well as illegal spying on American citizens. All of which came about with the helpful signatures on official memoranda shot off from the desks of legal advisors such as John Yoo and Jay Bybee.


As she describes, "In one memo, Yoo said the Justice Department would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants."


In her opening paragraph, Cohn states, "The memos provide "legal" rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state."


The track record of the Bush administration in violating the most basic human rights of not only American citizens but citizens around the world is well established, tracked, recorded and tens of books have been written documenting all these crimes and violations. So, the true worth of the American system of justice shall be examined in the years to come, as we find out whether or not any cases are brought against the key people in leadership positions in the Bush administration, as well as their enablers in the lower ranks, for their willful criminal actions.


But the one striking feature that jumps out of this whole affair is the ease with which a series of memos made it 'legal' for the U.S. armed forces and security agencies to torture people, spy on citizens, rendition people to third countries to be tortured, and to even suspend freedom of speech and assembly; as tens of thousands of American demonstrators wishing to use their public spaces to assemble and practice their free speech rights can tell you.


So, we must ask: What is law? And is the U.S. a country based on laws?


Clearly, 'law' has many aspects, and there are different kinds of laws. There is contract law, property law, trust law, tort law, and criminal law.


On another level, there are laws that define what is right, correct, good, if you like; things that 'should be' and, by deduction, things that 'should not be'. Included here are the Ten Commandments kind of laws prohibiting murder, theft, lusting after your neighbor's wife, and so on. There are also laws that define and protect the rights of people and entities, such as laws protecting people's freedom from random harassment by police officials, for example. 


Then there are larger-structure laws that can be characterized as era-specific. Laws protecting slavery, for example, were such. For hundreds of years, in the colonial era as well as after the founding of the U.S. it was legal to hold slaves. After the Civil War, lynching of black people, though not sanctioned by law, had no legal repercussions for many decades. Another example of era-specific laws is those inaugurated by modernity, or rise of capitalism, protecting the right of expropriation of surplus labor of wage workers.


Finally, there are laws that came about as a result of the modernity's requirements for running a modern, complex state, clearly separated from the civil society, and superimposed on it. These are laws mapping the state apparatuses, their authority and jurisdiction, obligations and working mechanisms. In the U.S. these include constitutional law and administrative law, as well as international laws and treaties.


This last category of laws together with the era-specific laws protecting capitalist expropriation of surplus labor, shape, modify and potentially subvert all the other laws. Hence, the Marxists' formulation that 'law' is the formal and institutionalized expression of the balance of class powers, and legal developments correspond to the different stages of the class struggles ongoing in any given society, as well as regionally and internationally.


To get back to the discussion of the Bush administration's violations of basic civil liberties, it is instructive to pause a little on how easily an entire legal superstructure was overturned, exactly as a direct impact of the 'laws' defining state's rights on all the other laws. This shows that the state, and not the civil society, is the master in the social contract established in the U.S. Not that this is news to anybody on the left.


The fact that the Bush administration could so easily make a mockery of 'law' is indicative of, among other things, the fact that the American working classes have been beaten down so severely that all that was required to take away most of people's legal rights was the signature of, practically, a bunch of higher-degreed, legal bully boys for hire.


But, as historical evidence shows, legality has never been a particular concern of those with great powers to wield. The founding of the U.S. is based on the greatest ever land theft, genocide of the Original Peoples of the subcontinent, and slavery. All three of which were deemed not only 'legal' but divinely sanctioned. And to commit all those atrocities, you must have that singular extra-legal element which taints all U.S. laws from the country's inception: racism.


It is instructive to pause a little on the matter of lynching of the black Americans. As late as seventy years after the ending of the Civil War, according to Wikipedia, "On July 19, 1935, Rubin Stacy, a homeless African-American tenant farmer, knocked on doors begging for food. After resident complaints, Dade County deputies took Stacy into custody. While he was in custody, a lynch mob took Stacy out of the jail and murdered him. Although the faces of his murderers could be seen in a photo taken at the lynching site, the state did not prosecute the murder of Rubin Stacy. Stacy's murder galvanized anti-lynching activists, but President Franklin Roosevelt did not support [a] federal anti-lynching bill," (


No comprehensive legislation has ever passed the U.S. Congress against lynching. Wikipedia further chronicles, "On June 13, 2005, the United States Senate formally apologized for its failure in previous decades to enact a Federal anti-lynching law. Earlier attempts to pass such legislation had been defeated by filibusters by powerful Southern senators. Prior to the vote, Louisiana Senator Mary Landrieu noted, 'There may be no other injustice in American history for which the Senate so uniquely bears responsibility.'"


The only thing that had a fundamental impact on a dramatic reduction of the lynching of black Americans, though not its complete elimination, was the rise of the Civil Rights Movement; i.e., when the African American community organized and mobilized against such atrocities.


But, why should a society have a need for a special set of laws banning extrajudicial killings? Extrajudicial killing is still murder under any social system, and therefore already illegal. The fact that it was considered normal and accepted to lynch black people is a deplorable acceptance of racism on the part of the white society. Even more sadistic is the acceptance, nay, encouragement forwarded to such acts by the state. Clearly, whether an actual 'law' protects or sanctions particular behaviors is beside the point.


*  *  *


If we are to take history as any indication, there had been plenty of willful criminal acts by the United States government prior to the bad, ugly Bush administration, when it was supposedly 'illegal' to do such things; we see rampant torture, illegal invasions of other countries who meant no harm against the U.S., and overthrowing of governments, at times at the behest of a singular company peddling fruits.


A lot of liberals are going around these days howling 'Foul Play' by the former Bush administration in overthrowing a beautifully arranged set of laws so well-balanced, and Oh, so worth worshiping to the highest heavens; all the while, praising Obama for 'restoring' legality. Yet, when confronted with the logical conclusion that serious criminal actions should therefore be taken to bring about some justice, they cringe, and would be horrified at the further deduction that Obama is currently aiding, abetting and covering former Bush administration's criminal acts.


It is alarming, then, to hear many commentators on the left wishing to 'restore' the legal system that was so easily defeated and restructured by the mere signature of a few individuals. Are we not supposed to expect, in a democracy, a system in which the rule of individuals is replaced by the rule of law? The previous 'legal system' could not defend itself against a small group of sadistic sociopaths, and some people wish to restore it! Besides, that system hasn't gone anywhere! We are still operating in that setup.


This whole historical episode, still ongoing under the Sweet Hope Obama administration (more on this, below), points to the fickleness of the legal system that is supposed to uphold democracy in the U.S.


'Democracy' becomes a meaningless noise in a system in which the personal opinions (based on social interests) of a small clique of fanatical right-wing 'official legal advisors' override an intricate and complex set of laws set up laboriously to protect citizens against arbitrary dictates of a dictator king type. Was not the whole point of the project of Modernity (with the capitalization and attendant hoopla) the elimination of the effects of a king's arbitrary wishes on an entire population's fate and well being?


So, if anything, we owe a great deal of gratitude to the administration of George W. Bush for laying bare for everybody to see the point: 'Law' has nothing to do with it. If you have enough power and might, and have the will or the wish, you can write any laws you like and allow yourself to do anything you want in a class-based society.


We have been living in a dictatorship; period. If the signature of a few individuals is all it takes to overturn an entire legal structure, which was erected to protect individuals and to render everybody 'equal before the law', then that structure is as fickle as any erected by any absolutist monarch of the days long gone. 


So, although all the criminals from the two Bush administrations should be pursued and not let off the hook by any means, the larger picture dictates that it does not matter which particular individuals put their signatures on some memos legalizing torture and suspending civil liberties. There will always be such willing individuals as long as we live in class-based structures, and there will never be any lack of enthusiasm on the part of rulers to do as they damned please. The more productive interrogations therefore should be targeted at the social structures that can crumble so easily with a few strokes of so few pens. A ruder person would say, "It's the system, stupid!"


Liberals like to say the neo-con agenda is dead. Is it, really? Then why are the majority of its most significant achievements still in place and being protected by the new Obama administration? Obama's administration is using the same legal language, and for the most part is employing roughly the same tactics.


The Obama admininstration is still using the doctrine of preventive war-making in Afghanistan and even Pakistan ("Fight them over there before they bring it here"). They are as hostile to the Palestinian people and their legally elected representatives, as well as hostile against the most basic of their rights under international treaties, which the U.S. is signatory to. They are, in spite of the supposed 'draw down' of armed forces in Iraq, expanding the war of terror against the people of the greater Middle East (in Afghanistan and Pakistan); they continue the Bush administration's double-talk on Iran ("We will pursue diplomacy, but all options are open"); their line, so far, of not pursuing any legal actions against torturers, and in fact blocking key decisions that would really reverse the Bush administration's illegal activities, indicate that they will pursue the same actions and take the same exact evasions, diversions and deflections; and even their economic 'policies' of pouring people's hard earned tax money into the bankers' and military contractors' pockets is basically the same as the former administration's.


A huge and loud alarm should therefore be raised regarding the necessity of fighting against superficial legalese when it comes to the U.S. government's fundamental violations of rights of individuals, U.S. citizens or not. We must especially attack the approach taken by the liberals in letting Obama off the hook already. The insistence by the liberals that "the whole legal nightmare is now over", with the insinuation that no legal proceedings should be brought against the criminals of the last eight years (at least), is itself a criminal utterance. Letting criminals off the hook means, further, that the policies that allowed some to act illegally are still in effect.


But, then again, "illegality" has never had anything to do with it. And, I for one, doubt very much that the courts and the justice system set up in the U.S., in its current form and substance, will ever bring any meaningful cases against any of the criminals of the past eight years. To do so, I think, would open up a huge can of worms that the current system cannot process or digest. Better keep things under wraps. Hopefully, I am wrong; very wrong.


*  *  *


Let's close with a different thought. The reason we are awed by and love Joseph K., the main protagonist in Kafka's The Trial, is mostly because, I think, though he does not start out as a classic hero and is in fact a most ordinary man, when pushed by his bizarre circumstances, he acts heroically. As compared with another accused man in the story, the cowardly Rudi Block, who stays an utter slave to the machinery, Joseph K. defies all authorities by the end of the story, starting with his own uncle (family), through to the lawyer his uncle gets for him (connections and privilege), then the court (authority), and finally church and god; hence, his final fate. By defying all these arbitrarily imposed authorities, he chooses to be human and free, even if only in death. He refuses to live by an insane irrationality. That's why we love him.


Liberals are like Rudi Block. They can't see any alternatives to the system, and are forever slavishly waiting for this structurally flawed and contradictory system to correct itself and address the concerns of justice. A true humanist with a realist outlook would follow the path of Joseph K. and defy the entire structure, come what may.


Reza Fiyouzat can be reached at:

He keeps a blog at:

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