What's Law Got To Do With It?

This is an expanded version of an earlier post.  

In an article titled, Memos Provide Blueprint for Police State, 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.

Read the complete article ...