The Mix

The legalese of betrayal

No matter the terminology we use, Americans understand when they're being misled.
There is some argument out there that impeachment and censure isn't capturing Americans' attention as it should because it comes down to eye-glazing talk of executive power and checks and balances. Is all this talk of violating the Constitution too high-minded for Americans? Sure, executive power can be an abstract notion. But the consistent accusations that this administration has violated the limits of executive power, has violated the fundamental principle of checks and balances enshrined in our Constitution, provides an important category in which we can file some of the most appalling actions that we read about in the news every day. It is, therefore, a vital instrument that enables a more thorough understanding of the depth of misconduct.

For instance, today: We learn that Sergeant Michael Smith has been found guilty of abusing detainees at Abu Ghraib. Smith used his dog to intimidate prisoners and competed with other dog handlers to see who could first get detainees to soil themselves out of fear. While he and nine other soldiers have been convicted of abusing detainees, all are junior-ranking soldiers. This despite the now public information that Secretary of Defense Donald Rumsfeld approved the use of dogs on detainees. Just to top off the blatant contradiction, Pentagon-led investigations into detainee abuse found "no link between approved interrogation techniques and detainee abuse."

There's no shortage of cases clearly showing conduct that violates the common interpretation of laws. Any rational person reading this onslaught of information sees the monumental disconnect between extralegal actions by members of the Bush administration, and accountability.

Lawyer and writer Rosa Brooks makes the argument that every American is responsible for enabling this shift in power, pushing a vital point about the artificial divide between the people and the law:
…though few of us lawyers care to admit it, the law on its own counts for practically nothing. Thus, the surprising thing is not that our Constitutional system has been trampled on by the Executive Branch during the last five years, largely with popular and congressional acquiescence.
The truly surprising thing is that our constitutional system lasted as long as it did, with the balance of powers envisioned by the Framers relatively intact…In and of itself, our Constitution has never meant much. Its meaning has always lain in its use…Law does nothing and means nothing outside of its cultural context… One major moral of this particular story -- the story of the Bush Administration's successful power grab - is that law does not exist, and cannot be understood, within its own hermetically sealed universe. Law does nothing and means nothing outside of its cultural context. As a result, those of us unhappy with the way our constitutional system is working today will not be able to fix the problem through strictly legal means--we already have, on paper, a perfectly workable constitutional system. If we want to roll back unconstrained executive power, we need to look beyond the law to the broader political culture, and work on changing that…
Onnesha Roychoudhuri is an assistant editor at AlterNet.
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