This is another example of the extremist, go-it-alone and outside the Rule of Law positions taken by the Bush administration.
A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has sanctioned it.A treaty with a foreign nation is part of U.S. law. This appears to be conservative judicial activism gone wild, and then carried to extremes by the Bush administration which considers itself bound by no law, treaty, agreement or promise.
The admission will alarm the British business community after the case of the so-called NatWest Three, bankers who were extradited to America on fraud charges. More than a dozen other British executives, including senior managers at British Airways and BAE Systems, are under investigation by the US authorities and could face criminal charges in America.
Until now it was commonly assumed that US law permitted kidnapping only in the “extraordinary rendition” of terrorist suspects. [Snip]
Jones [Alun Jones QC, representing the US government, in a hearing that involved the alleged attempted kidnapping of a British citizen while that person was in Canada] replied that it was acceptable under American law to kidnap people if they were wanted for offences in America. “The United States does have a view about procuring people to its own shores which is not shared,” he said.
He said that if a person was kidnapped by the US authorities in another country and was brought back to face charges in America, no US court could rule that the abduction was illegal and free him: “If you kidnap a person outside the United States and you bring him there, the court has no jurisdiction to refuse — it goes back to bounty hunting days in the 1860s.” [Snip]
“That is United States law.”
He cited the case of Humberto Alvarez Machain, a suspect who was abducted by the US government at his medical office in Guadalajara, Mexico, in 1990. He was flown by Drug Enforcement Administration agents to Texas for criminal prosecution.
Although there was an extradition treaty in place between America and Mexico at the time — as there currently is between the United States and Britain — the Supreme Court ruled in 1992 that the Mexican had no legal remedy because of his abduction.
The Bush administration believes in Rule by Law, in which the law is an instrument of government and can be used arbitrarily by those in government who are above the law. This was the philosophy of law used by monarchs prior to the English Glorious Revolution of 1688 when the English Parliament deposed King James II and replaced his with William and Mary from the Netherlands.
This article from Perspectives describes the difference between Rule by Law and Rule of Law.
The difference between "rule by law" and "rule of law" is important. Under the rule "by" law, law is an instrument of the government, and the government is above the law. In contrast, under the rule "of" law, no one is above the law, not even the government. The core of "rule of law" is an autonomous legal order. Under rule of law, the authority of law does not depend so much on law's instrumental capabilities, but on its degree of autonomy, that is, the degree to which law is distinct and separate from other normative structures such as politics and religion. As an autonomous legal order, rule of law has at least three meanings. First, rule of law is a regulator of government power. Second, rule of law means equality before law. Third, rule of law means procedural and formal justice. We will take up these meanings of rule of law one by one.It is the nature of the Bush administration, and of conservatives generally, to practice Rule by Law rather than Rule of Law. They consider themselves superior to the law, and find in it nothing more than a tool, usable to enforce their arbitrary whims but not binding on their own actions.
First, as a power regulator, rule of law has two functions: it limits government arbitrariness and power abuse, and it makes the government more rational and its policies more intelligent.
The opposite of rule of law is rule of person. There are two kinds of rule of person. The first kind is "rule of the few persons," examples of which include tyranny and oligarchy. The second kind of rule of person is "rule of the many persons," an example of which is the ancient Greek democracies. The common feature of rule of person is the ethos that "what pleases the ruler(s) is law." That is, under rule of person, there is no limit to what the rulers (the government) can do and how they do things.
John Locke wrote his Two Treatises of Government which describe a democratic government, based on the will of the people. The single most critical elements of that democratic government based on the will of the people was that it was operated under the Rule of Law, and no one was above the law. When government officials resort to arbitrary decisions not constrained by law, then the government has become a tyranny. It is irrelevant whether or not there are elections. It is a tyranny because the top government officials have abandoned the Rule of Law and use the law only as an instrument of control of the nation.
The extradition treaties in place with other nations are a part of U.S. Law, but the Bush administration has seen fit to ignore them when it wishes. This is tyranny. That the U.S. Supreme Court has yielded to popular pressure and declared that kidnapping suspected criminals outside the U.S. is legal merely means that the (politically conservative)Supreme Court Justices themselves have abandoned the Rule of Law in this instance, permitting instead tyrannical Rule by Law.
As the description of the Legacy of the Glorious Revolution of 1688 in Wikipedia shows, the action of removing King James II as Monarch and declaring that Parliament was the center of the power of government, functioning under the Rule of Law, was critical to the manner in which the U.S. Constitution was written a century later.
The Judges of the British Appeals Court were quite properly appalled by the declaration of Alun Jones QC, representing the US government, has demonstrated how tyrannical the Bush administration has become. Any American who believes in democracy and the U.S. Constitution should be similarly appalled. When the Rule of Law is abandoned, democratic government and the effectiveness of the U.S. Constitution goes with it. The unwavering practice of the Rule of Law is the central doctrine that permits democracy!
The Rule of Law is also critical to a vibrant economy. It is what permits individuals and businesses to take the statements and promises from the government seriously and base plans on them. Why would an individual buy a truck and start a hauling business if he did not know whether the government might, when it was short of trucks for government projects, simply confiscate the truck for its own use? The individual would do better to buy gold and jewelry and hide any wealth he had from the government. Much of the world functions this way even today. Rule of Law and a system of appeals to remedy arbitrary government actions are essential to both democracy and to a vibrant economy.
The rendition (kidnapping) of foreigners to the U.S. to stand trial for alleged crimes in violation of existing extradition treaties is an example of Rule by American Law (as determined by the U.S. Supreme Court) rather than Rule of Law as represented by the extradition treaty. Remember, without rigorous application of the Rule of Law, no existing law is consistently enforceable. Government officials are permitted the freedom to arbitrarily enforce laws or not as they desire. Sometimes they have to have a tame judge to make it work, but it is still arbitrary. That is tyranny, and the death of democracy.
It is unfortunate that the conservative members of the U.S. Supreme Court as presently constituted do not share the American respect for democracy and the enforceability of the the U.S. Constitution. But that is what happens when a coup, conducted by conservative monarchists (In the present case - the Bush and conservative philosophy of the Unitary Executive conducted without consideration of Rule of Law gives them away as Monarchists), takes over a democracy and imposes a tyranny.
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