Home > Law, Travel > The Supremacy of Law

The Supremacy of Law

Eric Holder

On the last day of our visit to Washington, D.C., in January, after my business concluded in mid-afternoon, I returned to our hotel, bundled up, and headed down Pennsylvania Avenue to the National Gallery of Art for a visit described here. In a separate post that I wrote a week later, I talked about passing the Justice Department headquarters on my way down Pennsylvania Avenue and seeing, engraved on its side, John Locke’s (or William Pitt the Elder’s) words “Where law ends, tyranny begins.”

Two weeks ago today, Gail and I took a shorter version of this walk, from Ford’s Theater on 10th Street down to Pennsylvania Avenue, across the street to the Justice headquarters, and then down Pennsylvania again to the National Gallery. Last week, I discussed the walk and gallery visit, but left for another time some remarks on another saying engraved on the building.

Our text for today: “No free government can survive that is not based on the supremacy of law.” I realize — to my astonishment — that expressing disappointment with the Obama administration in this context places me on the radical fringe, but disappointed I am.

I never know how much to say on this subject, since I am not an expert, and since whenever I do write about it, I end up quoting or linking to others. Almost every day I find some item I am tempted to blog about, then decide to pass. For today, let me mention just one example, Obama’s assumption of the right to assassinate US citizens without due process. This has been written about for months, but finally was given full attention in simultaneous articles on April 7, by Scott Shane in the NYT and Greg Miller in the Washington Post. Shane wrote:

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Mr. Awlaki, who was born in New Mexico and spent years in the United States as an imam, is in hiding in Yemen. He has been the focus of intense scrutiny since he was linked to Maj. Nidal Malik Hasan, the Army psychiatrist accused of killing 13 people at Fort Hood, Tex., in November, and then to Umar Farouk Abdulmutallab, the Nigerian man charged with trying to blow up a Detroit-bound airliner on Dec. 25.

American counterterrorism officials say Mr. Awlaki is an operative of Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in Yemen and Saudi Arabia. They say they believe that he has become a recruiter for the terrorist network, feeding prospects into plots aimed at the United States and at Americans abroad, the officials said.

It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.

What ever happened to arresting and trying people? Do we really give the president the authority to judge and sentence someone without a jury trial or a defense?

As usual, Glenn Greenwald got here ahead of me. He had already been writing about Obama’s assumption of the right to be judge, jury, and executioner before, but on the day that the NYT and WP articles appeared, he returned to the topic with a lengthy blog post. I have nothing more to add.

I just wish we had an independent Justice Department, a concept that vanished during the Bush years but that Obama (I thought) promised to return to. In a replay of the Bush years, Obama’s political advisors (Rahm, Axelrod) appear to carry more weight than the attorney general (that’s him, at the top of this post).

Oh, and the same week that those two articles appeared, Obama withdrew the nomination of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel. After the mockery Bush (and Bybee and Yoo and Bradbury) made of that office, Johnsen was an ideal choice to restore the supremacy of law. But Obama was never willing to push for her Senate confirmation, letting her languish for a year before she withdrew. (See further commentary here.)

At least the words are still on the building. We can hope.

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Categories: Law, Travel
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