I think that yesterday I might have become a Democrat.
One of the perks of being an intern is that I get to sit in on some of the Senate and House hearings on issues as diverse as Parkinson's disease in military veterans to America's oil reserves. On Monday I attended a Senate Republican forum on the need to advance judicial nominations through the appointment process. Coming from a country where judges aren't appointed so much as annointed, the whole process of legislative approval seems odd, but all the more so when the impact of a shortage of judges on the legal process is properly considered. The problem was thus. The Democrats on the Judiciary Committee were refusing to hold hearings for some of President Bush's judicial nominations, citing a dubious rule that such hearings would be slowed in the year of a presidential election. Now, it seems unlikely that this rule exists, but even if it did, how can it possibly be right that politics interferes with the judicial and legal process? All of the witnesses made the same point convincingly, and the point seems so obvious so as not to need debate. So what was the point in the whole forum? I can only assume it was grandstanding. There were eight Republican Senators there, 8% of the whole, for two-hours, stating the blindingly obvious, asking questions designed to produce set piece answers and congratulating themselves on their sterling and tireless work on the committee.
I'm sure that given two-hours, these eight Senators could have made much more productive use of their time. Of course, the issue was important, and given the press-coverage of the forum hopefully their message got out - judicial appointments need to go forward. But it was for all the wrong reasons, to seek to portray the Democrats as stalers and spoilers, which they might well be, but the evidence suggested the Republicans did the same under Clinton, albeit to a slightly lesser extent. The whole thing only illustrates why law and politics do not mix.
The hearing I went to this morning threw this into sharp contrast. This morning saw one in a series of the House hearings on the torture and interrogration techniques used on terrorist suspects. The significance of the hearing was obvious from the length of the queue outside the room an hour before it started, and the number of protesters in the room. The Democrat-Republican divide was clear almost from the outset and it's a divide that in my opinion did the Republicans no favours whatsoever. There's a blog that I try to keep up to date with, called Head of Legal. It's written by a former legal advisor to Tony Blair, and is usually pretty spot on in its analysis. I'm nowhere near as qualified as he is, but I'd like to offer a few observances on what I saw today.
To say I was appalled would be an understatement, I couldn't actually go straight back to the office afterwards as I needed to cool down a bit. Almost immediately Mr Franks, the Republican ranking member asked why there had been no hearings on protecting the rights of American citizens and the need to move on from going over past acts - and there and then the debate was framed. While Democrats presented the hearing in terms of the need to uphold the rule of law and respect for the constitution at all times regardless of the wishes of the administration, the Republicans without fail resorted to putting the hearing into the context of 9/11, the dangers consequent, and the need to protect American lives and in so doing straight away lowered the level of debate. Two of my favourite quotes came from one Mr Pence who stated firstly that "I try not to think like a lawyer. I try to think like an American" to suggest the average American did not care about legal 'niceties', and secondly "It is imperative that the United States upholds the rule of law. But...", which I don't even think needs completing to illustrative the futility of the statement.
At one level, such appeals to 9/11 cheapen the debate by making it all but impossible to progress beyond appeals to patriotism. But more fundamentally they confuse two important, but necessarily separate questions. First there is the question of whether torture is permitted under the current law. Emphatically is not, but the hearing obfuscated this by vaguely worded appeals to the second question of whether torture should be permitted. Clearly the Republicans on the Committee wanted to answer the latter in the affirmative, and to them, this needed the first question to be affirmatively answered too. The Democrat's by contrast correctly spotted the difference in the questions in trying to focus on the legality, not the justifiability, of what happened in the torture cases, but it was lost in the Republican patriotic onslaught. Of course, there are always going to be situations where a person can seek to justify torture, the ticking-time bomb scenario for example (and of course, it raised its head today), but extreme examples make for bad law, in just the same way that partisan politics makes for bad law.
A good example has to be Antonin Scalia's judgment in the recent Supreme Court case holding that Guantanamo detainees could petition the federal courts for their release where he stated simply that the judgment "will almost certainly cause more Americans to be killed". Such judgments are scarily reminiscent of Mr Franks and the other Republicans on the committee and in my opinion have no place in a considered judgment of the highest court in the United States, or any other country. At best, such considerations can be an excuse, never a justification.
Law's cannot be set aside merely because they are inconvenient. Instead, they can be changed through the regular process. That's one of the fundamental tenets of the rule of law. Ideas that adherence that the rule of law can be conditioned by a 'but', or that the legality of action isn't actually that important are first steps on a very slippery slope and one that the Republicans on the committee should, frankly, be ashamed for even countenancing.
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