Former President George W. Bush emerged from his nearly two-year, self-imposed silence recently to speak about his presidency, part of the publicity campaign for his new book Decision Points. One of those decision points was his approval of water-boarding on Khalid Sheikh Mohammed, the al-Qaeda terrorist believed to be the mastermind of the 9/11 attacks. In an interview with NBC’s Matt Lauer, the president said that he ordered interrogators to “[F]ind out what he knows.” Presumably told about the techniques to be used, Bush said they were fine if they were legal. Lauer than asked: “Why is water-boarding legal in your opinion?” The president’s reply: “Because the lawyer said it was legal.”
America has always prided itself on the fact that we are, as John Adams first put it for us, “a government of laws, and not of men.” Indeed, law is a barrier to widespread abuse against human rights. But, if we are not careful, it can be a smokescreen as well.
During its time in office, the Bush Administration insisted that it did not condone torture and pointed to a series of its own memos to illustrate the painstaking legal analysis it undertook to ensure it broke no law. That type of thinking was evident in the Bush-Lauer interview. For its part, Congress routinely pressed the Administration on how it defined torture so that a judgment could be made about whether the abuses actually did violate the law. It was a Clintonesque dance in a Bush Administration. We went from arguing about what the definition of “is” is to the definition of what “torture” is. The question about whether we as a nation condoned torture on moral grounds receded to the background amidst a definitional debate. A people that took pride in being “a city upon a hill” seemed content to have a legal rather than a moral conversation.
The undercurrent of the debate is equally troubling still: if a practice is legal it is assumed to be permissible. In essence, the torture debate accepted the principle, in terms crafted by political scientist Louis Gawthrop, that if we figure out what we can do we will know what we should do. As Gawthrop reminded us, however, in Public Service and Democracy, this leads to a society “in which only that which is categorically illegal is unethical.” Legal distinctions are substituted for moral thought, an ironic result for a nation that has so frequently gone to war against men who cloak torture in legalisms.
Torture, of course, is not the only public issue on which we use this definitional approach to decide what is permissible. Did BP break a law in the series of decisions that led to the Gulf oil spill? Did Wall Street bankers break any laws in the set of actions that led to the financial collapse of 2007-2008? Do campaign ads, which we acknowledge probably lie as often as they stretch the truth, break any laws? Do pharmaceutical companies that push drugs for uses beyond those for which they were approved break the law? Do talk show hosts who spread vitriol that poisons the public dialogue break any laws?
A secondary effect of such thinking is that one is only responsible when one has broken the law. This leads to the curious result that responsibility, one of the moral virtues politicians on both sides of the aisle so rightly extol, becomes not a matter for serious national debate but a simple question of determining if a legal barrier has been breached. It’s unlikely we would use this definition of responsibility in any other aspect of our communal life. A society that relies on lawyers to tell it how to be responsible is a society that has lost its moral compass.
A third effect of this approach is that we are becoming a nation consumed with the law. The U.S. has the highest per capita proportion of lawyers of any nation. The law has become so complex on so many issues that the average American is lost in understanding it. This passes control over substantive issues to the lawyers, not the voters – a nice outcome for lobbyists and their lawyers but not one that makes government accessible, outwardly honest and respected.
Many Americans were outraged at what took place in Iraq’s Abu Ghraib prison. Many more are outraged at what BP did, what Wall Street did, and what so many public figures continue to do, most often without breaking the law. Perhaps outrage should take a more forceful place in regulating our conduct. It used to do so. A democratic nation of laws is ultimately founded on sound moral values and can survive only when collective outrage greets those who violate them or seek to hide from responsibility for those violations. It’s time we used our values, not just our laws, as a guide to our behavior. Perhaps we need to become “a government of laws and men” because, in the end, it is the morality of people that determines the wording of laws.