John Stuart Mill wrote, in
On Liberty:
"Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant — society collectively over the separate individuals who compose it — its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism...
The object of this Essay is to assert one very simple principle...That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise."
It is brought to mind every time a politician has a knee-jerk reaction to the latest headline or opinion poll and launches into one of those "the British public demands..." bouts of empty rhetoric. But also when those in
positions of power and trust, like Blair, Brown,
Cheney and Bush, demonstrate an
absolute contempt for the rule of law in their panicky war on terror.
"For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power. Finally, in the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and his lawyer
David Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy -- without congressional approval or judicial review.
Now, as the White House appears ready to ignore subpoenas in the investigations over wiretapping and U.S. attorney firings, FRONTLINE examines the battle over the power of the presidency and Cheney's way of looking at the Constitution...
After Sept. 11, Cheney and Addington were determined to implement their vision --
in secret. The vice president and his counsel found an ally in John Yoo, a lawyer at the Justice Department's extraordinarily powerful
Office of Legal Counsel (OLC). In concert with Addington, Yoo wrote memoranda authorizing the president to act with unparalleled authority."Through
interviews with key administration figures,
Cheney's Law documents the bruising bureaucratic battles between a group of conservative Justice Department lawyers and the Office of the Vice President over the legal foundation for the most closely guarded programs in the war on terror," says FRONTLINE producer Michael Kirk...
In his most extensive television interview since leaving the Justice Department, former Assistant Attorney General
Jack L. Goldsmith describes his initial days at the OLC in the fall of 2003 as he learned about the government's most secret and controversial covert operations. Goldsmith was shocked by the administration's secret assertion of unlimited power...
As Goldsmith began to question his colleagues' claims that the administration could ignore domestic laws and international treaties, he began to clash with Cheney's office. According to Goldsmith, Addington warned him, "If you rule that way, the blood of the 100,000 people who die in the next attack will be on your hands."
Goldsmith's battles with Cheney culminated in a now-famous hospital-room confrontation at Attorney General John Ashcroft's bedside. Goldsmith watched as White House Counsel Alberto Gonzales and Chief of Staff Andy Card pleaded with Ashcroft to overrule the department's finding that a domestic surveillance program was illegal. Ashcroft rebuffed the White House, and as many as 30 department lawyers threatened to resign. The president relented.
But Goldsmith's victory was temporary, and Cheney's Law continues the story after the hospital-room standoff. At the Justice Department, White House Counsel Gonzales was named attorney general and tasked with reasserting White House control. On Capitol Hill, Cheney lobbied Congress for broad authorizations for the eavesdropping program and for approval of the administration's system for trying suspected terrorists by military tribunals."
More on the themes of the Frontline programme
here and further links of interest
here. Thanks to
Marty Lederman, who was also interviewed for the programme, for the pointer. In addition Jack Balkan has
this to say about the Bush administration's attempts to get retroactive immunity for telcos it asked to spy for them illegally:
"The Bush Administration has claimed that everything it has done in the past seven years is legal. On the pages of this blog in the past five years we have tried repeatedly to show that this is not true, and that in fact that the Bush Administration has repeatedly broken the laws and tried to cover things up. Congress must understand that is it not dealing with an Administration that tries to play fair when it comes to respect for the rule of law. That is not meant to impugn the many fine lawyers at the Justice Department who have tried to do their jobs honorably under increasingly difficult conditions. Rather, my point is that at the top ranks of this Administration is a cabal of people who think that rules are made to be broken, or at the very least bent into unrecognizable shapes. Unfortunately they have been enabled by a handful of very bright and ambitious young lawyers who have combined
sycophancy to power with ideological zeal. If this were a Mafia movie, we would call these practices an ongoing criminal conspiracy. Given the systemic nature of the lawbreaking, a RICO action might be appropriate. But this is no episode of the Sopranos. These people run the government of the United States, and they really don’t care much what the law says."
