The Rule of Law Does Not Lend Well to Selectivity

Brian Tamanaha’s post at Balkinization calling for criminal investigation of the Bush administration’s treatment of prisoners at Guantanamo Bay is a wonderful example of how liberals tend to flip sides in the “rule of law” rhetoric. After all, what sober-minded conservative could take issue with talking up “our commitment to the rule of law”? But it is the chosen context that betrays the underlying political bias: if Professor Tamanaha is truly concerned about the rule of law, how about condemning the national take-over of private institutions being considered by the Obama administration? How about the punitive tax targeted directly at AIG employees who received impolitic though perfectly valid bonuses? Or the out-and-out rejection of the rule of law by Obama himself? If we choose to reignite our enthusiasm for the rule of law, let’s start with domestic actions affecting citizens regarding a metaphorically explosive crisis rather than foreign military actions affecting noncitizens regarding an actually explosive crisis.