Five things the U.S. must do to restore the rule of law

by Inder Comar

The rule of law is in serious jeopardy in the United States.

The Executive branch is unconstrained, engaging in foreign wars without oversight even while it dismantles the regulatory and administrative state that protects citizens from abuses of power. 

The Legislative Branch has been hopelessly bought-and-sold by monied interests.

And the Judicial Branch refuses to intervene, and is actively closing the doors to any accountability over other elected officials.

Some scholars like Professor Ryan Alford even argue that the U.S. is no longer a rule of law state, a government that is run by a dictator who is elected every four years.

If this is true, then the U.S. is effectively a rogue nation. 

Here are five things the U.S. must do in order to restore the rule of law:

(1) End all undeclared wars and military actions, and revoke the 9/11 authorization. Unending wars act as a systemic threat to democratic government. War increases the powers of the presidency and acts as an excuse to increase presidential powers. Money disappears through appropriations for military expenditure, or just through corruption. War destroys civil society by producing a culture that glorifies the military. War and democracy cannot coexist. 

James Madison, one of the chief authors of the U.S. Constitution, observed the very same: 

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people . . . No nation could preserve its freedom in the midst of continual warfare.

The 9/11 Authorization to Use Military Force (AUMF), passed immediately after the 9/11 attacks, has morphed into a blank check on an unending, perpetual, worldwide war.

As of May 2016, the AUMF was cited at least 37 times to support or sustain military action in at least 13 different countries, by both President George W. Bush and President Barack Obama.

And President Donald Trump has indicated his broad support for maintaining the 9/11 AUMF.

But enough is enough. The AUMF should be terminated, immediately.

Al Qaida has been destroyed and Bin Laden is dead.

There very well may be new national security threats that require a military response. If so, Congress can pass a new authorization tailored to those threats.

(2) Join the International Criminal Court. When you think about it, it is a remarkable thing: we live in a world where there is an independent, international, permanent tribunal whose primary purpose is to prosecute international crimes.

The U.S. was initially committed to the International Criminal Court (ICC). President Clinton signed the Rome Statute, but President George W. Bush famously "unsigned" the treaty, and the Senate was never asked to ratify it.

The ICC is in its infancy. It needs help and support. It is admittedly quite wobbly; but the first airplanes were also quite wobbly. Like any technology, the ICC needs investment and refinement. American support for the ICC would be a game changer, and would strengthen the international rule of law in ways that would herald a new era of international accountability for torturers, war criminals, and illegal aggressors.

(3) Investigate and prosecute U.S. officials who committed grave violations of international law. The rule of law is meaningless if it stops at the door step of the powerful. And since 9/11, U.S. leaders have committed terrible international crimes. Torture, unlawful surveillance, wars of aggression, crimes against humanity and war crimes have been openly committed by U.S. government leaders.

Restoring the rule of law requires an investigation into these crimes, and ultimately, prosecution over these crimes.

This will be a painful social process. But Americans have no choice but to expel these poisons that infect its politics, its society, its culture, and its government. When a person gets sick, the immune system does terrible things to fight off the infection. Fever and pain are the hallmark of an immune system that is doing its job. But when the process is over and the infection is gone, the body is restored and is once again healthy.

The American judicial system, including its prosecutorial agencies, attorneys, social activists and even brave members of the political class, are the anti bodies that we need to restore democratic governance. We absolutely need to end impunity of high ranking officials, whatever their rank and title, if we wish to live in a truly free and democratic society. 

(4) Promote and sustain an independent judiciary. It is a terrible thing that court-watchers can determine the outcome of a major case before the U.S. Supreme Court simply by looking at its composition. 

All sense of independent, impartial review has been jettisoned in favor of nakedly political judicial appointees. 

Justices across the political system should find no controversy in protecting and defending civil rights, providing access to justice to vulnerable groups, and acting as a mechanism of last resort for fair and impartial decision making. 

Judges and justices themselves must have the integrity and vision to understand that an independent judiciary is the last defense of a dying democracy. They must reject attempts by either the President or Congress to politicize the judiciary.

(5) End the influence of money in politics. Most pundits of the chattering classes glorify in the process of holding of an election as the end-all and be-all of democracy.

But take a look at any dictatorship in the world today, and there was almost certainly an election that was rigged to manufacture the intended outcome.

Elections are a necessary but not sufficient condition of democracy.

And voting is nothing more than kabuki theater when the results are manufactured or preordained.  

In the U.S., money has infected the electoral process to such a degree that outcomes are effectively tied to the degree of wealth that supports any given candidate. Elected officials take positions that please their wealthy donors, and not ones that reflect the true will of those who elected them to serve. 

For elections to be meaningful, they must express the will of an educated citizenry. Public funding of elections and limits on campaign finance expenditure are critically needed in the U.S. to restore legitimacy to the election process. Elections must free, fair, and open to every citizen. 

These are five, concrete actions that the U.S. must undertake to restore the rule of law.