Crossposted from The Atlantic.
In the late 1930s, Ernst Fraenkel, a German-Jewish lawyer, developed a theory that has surprising resonance today. In Fraenkel’s theory, called the Dual State, a totalitarian society is propped up by two interlocking halves: One half enshrines and enforces legal order, while the other arbitrarily exercises power free of legal constraint. The first half provides the veneer of legality necessary for the second to operate without producing overt rebellion, while the second allows the government to achieve its goals, notwithstanding a superficial commitment to legality.
The United States is not a totalitarian society, but Fraenkel’s theory nonetheless sheds light on recent tensions between the rule of law—the oft-quoted notion that the U.S. has a “government of laws, not of man”—and the rule of “technically legal.”
First, the country continues to roil over grand-jury decisions not to indict police officers in the deaths of Michael Brown and Eric Garner. The use of a grand jury—a quintessentially legal process used in thousands of cases—would seem to help insulate the outcomes from criticism. Indeed, grand juries historically served as independent bodies. Proceedings were secret to ensure freedom from coercion.
But there are problems. Critics charge that secrecy and total prosecutorial control impair a grand jury’s ability to serve justice and have called for reform for years. In the Brown grand-jury hearing, the prosecutor was particularly criticized for not trying to obtain an indictment, and instead presenting the grand jurors with a mountain of evidence to sift through. While some reform advocates have pushed to show grand juries a wider range of evidence, the divergence from the prosecutor’s customary role suggested that the process was being used as legal cover to reach the desired outcome—a technically legal approach, yes, but inconsistent with the spirit of the rule of law.
Then, this month, the Senate Intelligence Committee released the “Torture Report,” describing the CIA’s treatment of detainees in its post-9/11 prisons (though calling them that insults the good name of prisons). The report provides, in excruciating detail, a indictment of the CIA’s leadership, judgment, policies, and professionalism, even as some knowledgeable observers warn that more remains hidden.
Here, too, the legal system was effectively used to provide cover. Bush administration lawyers crafted memos to cover the CIA’s actions with a thin veneer of legality. The Justice Department and attorney general determined that President Bush could suspend the Geneva Convention. Another administration lawyer produced a memo defining torture so narrowly that detainees had to be near death for their treatment to qualify.
These memos served two purposes: first, to allow the CIA interrogators to abuse detainees in horrific (and counterproductive) ways, and second, to ensure they would be legally protected for doing so. Later repudiated by the Justice Department, Bush’s later-term attorney general, and President Obama, these legal memos were not evidence of a dedication to the “rule of law.” Rather, they were thin legal justifications for the profoundly troubling abuses revealed in the report.
A commitment to the rule of law is central to America’s self-image; subverting that commitment undermines its claim to embody a fair and just democracy. Citizens must be vigilant, lest they believe that covering themselves with legalisms is equivalent to living under a rule of law.