Brushing Aside the Rule of Law

President George W. Bush famously mocked questions about international law with fake horror and the response, “I better call my lawyer!” But the rule of law is under broader assault within the U.S. government, now centered on whether to call Egypt’s military coup a coup, as ex-CIA analyst Paul R. Pillar writes.

By Paul R. Pillar

I have spent much time around government lawyers, and nearly all of the ones I have known have consistently conducted themselves with a couple of important objectives in mind. One is to apply legal analysis fully and fairly to whatever subject is at hand, not shying away from noting legal requirements even when they become policy inconveniences. Another is to support the larger missions of those they are advising by pointing out legal ways, if they exist, to accomplish those missions.

Against that background it is disconcerting to read that the issue of the most recent Egyptian military coup and its ramifications for U.S. aid is being side-stepped in Washington by just not offering any legal opinion about the nature of the Egyptian generals’ move. A senior administration official said, “We will not say it was a coup, we will not say it was not a coup, we will just not say.”

Setting aside the legal issue about characterizing the coup, whether any suspension of U.S. aid to Egypt at this time makes sense is a question about which reasonable people can and do disagree. It is not a clear-cut policy call.

I happen to believe that suspension would be an appropriate response to the overthrow by the military of a freely elected president. If the generals’ promises about moving back in the direction of democracy are to be believed, such a suspension need not last long. There is good reason to believe a suspension would increase the likelihood the generals will keep their promises. The appropriateness of a suspension is made all the greater by indications since the military ousted Mohamed Morsi that so far the generals are moving less toward democracy than toward a replay of initial installation of military rule six decades ago.

The fact that there is a legal issue, given a statutory requirement to suspend aid in such circumstances, makes the costs of not recognizing the reality of the Egyptian coup all the greater. Failure to recognize this reality is an act of hypocrisy, which fosters additional foreign cynicism about anything the United States says concerning democratic or other values.

It also is a staining of our own political culture. It is a compromise of our respect for the rule of law, even when it is our own law. The rule of law represents one of the most fundamental differences between the United States and the least desirable polities of the world. We cannot afford to treat it casually.

To be sure, there is a problem of Congress using legislation to tie the hands of the Executive Branch in unhelpful ways that can impede effective foreign policy. Congress does too much of this; it ought to do less, especially when doing so is essentially political posturing, as it often is. At a minimum, Congress ought to incorporate more consistently than it does in legislation related to foreign policy the possibility of an Executive Branch waiver. But this is all a larger problem that is not solved by simply flouting whatever law is, for better or for worse, on the books.

There have been in recent American history too many other indications of an erosion in respect for the rule of law, from those within government whose functions are all about making or executing the law. There has been, for example, the ignoring of judicial review requirements on a matter that, as we see in current debate about electronic surveillance, is controversial enough even when the law is observed.

There have been presidential signing statements, which are a way of explaining an interpretation of a law but at times have been used instead to declare an intention not to obey a law. There is the falling into disuse of the Congressional declaration of war, replaced by Congressional expressions that are outdated or unclear regarding the legal basis for the use of military force. If these things are all part of a coherent pattern, we ought to be worried.

Paul R. Pillar, in his 28 years at the Central Intelligence Agency, rose to be one of the agency’s top analysts. He is now a visiting professor at Georgetown University for security studies. (This article first appeared as a blog post at The National Interest’s Web site. Reprinted with author’s permission.)


8 comments for “Brushing Aside the Rule of Law

  1. R. Colescott
    July 29, 2013 at 15:43

    So the government is the only organization or that has rights instead of privileges? Therefore the people that comprise the government are the only people who have rights, thereby establishing two distinct types of people. Orwell would be so proud.

  2. Hans
    July 29, 2013 at 12:50

    Democracy is not determined by majority elections!… Democracy is determined by minority rights!… Otherwise democracy is 3 wolves deciding to eat the one goat for dinner… Or, in other words, tyranny by majority…

    In the US there was first the constitution (with all its protections for the individual) and then the democratically elected government…

    In Egypt the process was the reverse, first the Muslim Brotherhood, utilizing its existing structured system, managed to get elected by majority and then they commenced establishing their constitution… A constitution marked by its lack of protections for the individual…

    In Egypt, even among many of those who voted originally for the Muslim Brotherhood the realization has set in that their promises are one thing and what they actually were creating was a Sharia based theocracy wherein there was no place for the individual… More so if said individual wasn’t a Muslim…

    Yes, it was the military that deposed Morsi but said action seems to have widespread support among the Egyptian population… In fact, one could argue that the coup WAS an expression of democracy!… The Egyptian population faces major economic hardships unless drastic changes are made…

    The way I see it is that the Egyptian military could have waited on the sidelines for the democratic process to work… However, by doing so they would have practically guaranteed that by that time Egypt would have been another failed state…

  3. Hillary
    July 28, 2013 at 14:59

    Brushing Aside the Rule of Law or just change the Law.
    Obama and G.W.Bush previously like to “change” the law and not break it.
    Judge Theodor Meron was successively a Polish, Israeli and then a U.S. citizen before becoming the president of the international bar association.
    He was legal adviser to the Israeli government and Israeli ambassador to Canada and the United Nations.
    He became President of the International Criminal Tribunal for the former Yugoslavia and Presiding Judge of the Appeals Chambers, International Criminal Tribunal for Rwanda.
    Recently under his Presidency and with pressure from Israel and the US changes were made to make it more difficult to hold war criminals responsible for their crimes.
    As a result the National Commission for the Fight against Genocide and, in Slovenia, the International Institute for Middle-East and Balkan Studies (IFIMES) demand the suspension of Judge Theodor Meron.

  4. Morton Kurzweil
    July 28, 2013 at 13:04

    The basis for law in a democracy is not the self-interest of politicians or Supreme Court moralists. The equality of each unique human levels the authority of any group to decide on the values of all.
    The arguments about Egypt coups based on Islamic or military beliefs is nonsense. Morsi was elected president of a democracy. Hitler was elected chancellor of the German Democratic Republic. Each fanatic believed he knew what was best for the people. Each immediately instituted policies through a coup d’Etat, the overthrow of the constitution to achieve political and religious control. Oh, yes, Naziism is as much a religion as Sharia law in the hands of extremists.
    The military are attempting a coup de grace, a finishing blow to an unconstitutional usurpation of a democracy.
    Perhaps we should be more concerned with the extreme conservative GOP insinuating its morality into the laws of state and national policy if we wish to return to a leadership role by example rather than delusion.

  5. Ronald Thomas West
    July 27, 2013 at 06:29

    Experience shapes the lens of perception and in my opinion, Pillar hasn’t enough distance from his career to present unbiased facts in his article, or simply he had not been paying close attention to events in Egypt these past few years.

    Known CIA front ‘Freedom House’ (ever since rogue CIA officer Phillip Agee, among others, had fingered the organization) and associated organizations such as the National Democratic Institute, had been training the leadership of the initial secular and student youth movement, with apple technology for revolutionary coordinating purposes. Meanwhile, the Mubarak regime had acquired all the necessary electronic snooping technology to analyze, identify and isolate the secular movement’s leadership, they were rounded up and sent off to USA torture darling Omar Sulieman’s jails. The Muslim Brotherhood stepped in and hijacked the revolution they had initially refused to support, together with taking over the new constitutional process, perfectly happy the secular movement had been marginalized for them. The Brotherhood now wrote the secular movement out of the ‘democratic’ process with a biased constitution and by speeding an election other interested parties had no time to regroup and properly prepare for.

    Morsi lacked the political maturity to include ‘pluralism’ in the emerging ‘democratic’ model, broke promise after promise relating to restraint and in the process, wrote inclusiveness out of the equation. Of course all of this is just dandy if you are fundamentalist.

    The ‘revolution’ was none the less headed for chaos as a matter of these facts and if the Generals stepped in for less than western democratic ideals, well, there is no history of western democratic ideals in the region in any case. One would think a 28 years CIA veteran analyst would get that…

    Ronald Thomas West

    • lastcamp2
      July 27, 2013 at 09:44

      Without claiming the concept is at all original with me, I observe that we are living in the “Post-legal Era,” where laws are considered irrelevant nuisances to be brushed aside when they become inconvenient. And I include in that the organic law, the US Constitution.

      • Ronald Thomas West
        July 27, 2013 at 11:22

        The technical term for the ‘post legal era’ in USA jurisprudence is ‘color of law’ and this general disregard for our foundational law in the guise of law, is exactly where we are at. Example given, color of law is the congress authoring FISA, any president signing it into effect and any chief justice appointing members of a secret FISA court that undermines or cancels other clauses of the constitution. I don’t really have an argument with that but pontificating on Egypt sort of skirts the fact the rule of law is not merely brushed aside but is pretty much dead in the USA. I’d call this article about 100 miles behind the curve of what is actually happening… and I didn’t want Pillar to get away with calling Morsi ‘freely elected’ .. the CIA literally put the Brotherhood into office with a shoe-horn of sheer incompetence

  6. F. G. Sanford
    July 27, 2013 at 05:51

    Kinda reminds me of Sam Ervin’s comment during the Watergate hearings: “You can call it an elephant, or you can call it a mouse with a glandular condition”. We’ve had a rational, respectable former U.S. President this week state that, “The United States is no longer a functional Democracy”, and nobody, at least not the mainstream media, has noticed. At the same time, we’ve heard presidential wannabee Hillary clinton say, “Citizenship is a privilege, not a right”. So much for the inalienability touted by those Founding Fathers our hypocrite politicians love to quote. We are told, “These are debates the country needs to have”, but the particulars are secret, so forget about the debate. The government can’t be sued, because the plaintiffs lack “standing”. Seems to me, there was a Supreme Court case many years ago in which someone was fired without being given a reason. The plaintiff maintained that, if the reason was secret, it was impossible to know if there had been a violation of civil rights. I believe the court ruled that the “secret” reason did, in fact, violate the individual’s civil rights. I guess they’ll be overturning that decision soon, as the use of “secret” stuff for prosecution of whistle-blowers is becoming the norm. Robert Blake’s “Beretta” character would say, “Don’t report the crime if you can’t do the time”. Or, perhaps Sergeant Schultz of “Hogan’s Heroes” fame would be more appropriate.

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