Don’t worry. This won’t be another rambler. I realize that last post was a bit tangential. There was a reason for taking that approach; it was an experiment in trying to get people to read it.
As Donald Trump knows well, sometimes making yourself a target of criticism is the best way to get them to pay attention to what you have to say.
And what I had to say last time is, to me at least, critically important. It has to do with understanding, and thus following, established procedures for doing things the right way when it came to bombing Syria.
It’s not that following established procedures necessarily results in “right results”. What is “right” is consistency and predictability. Without that there is chaos.
As usual, my point is how legal concepts relied upon by criminal defense attorneys like me are (or should be) utilized in other arenas. In criminal defense cases, the approach that maximizes, but does not necessarily guarantee, consistency and predictability is called Due Process.
The common term for that concept is simple: fairness. You don’t need to go to law school to know how fairness works. Everyone can understand that.
My first awareness of how fairness can be pursued through rules, whether or not they are called Due Process, came from my dad. I was complaining about my second grade teacher. She was making me do something I didn’t like – forcing me to play with a softball and banning my hardball from the playground. That was all I really cared about when I was seven. Baseball.
My dad asked, “Well, did she ever tell you that you could not bring your hardball out on the playground before?”
“Yes,” I said.
“Then you have nothing to complain about. She told you the rule, you knew it, and it came as no surprise then that you could not break that rule.”
“But, that’s not fair!” I whined.
“Oh, no, quite the opposite, in fact,” my dad explained. “IF she had not said a word about bringing hardballs to school, or if she had told you they were OK, then she suddenly changed her rules in the middle of recess, maybe after she saw that wicked fastball you toss, that would be unfair. Or, if she said you couldn’t then let you keep bringing it anyway, which is even more confusing, that’s not really fair. But, instead, she told you up front and stuck to what she said. She put you on notice so you could not then claim you were surprised. That is perfectly fair.” (Yes, my dad talked to me when I was seven like that. He was an engineer.)
When I complained that she should not be able to make such rules we got off on the topic of vested authority and “so on and so forth” (a phrase he used constantly in these little talks of ours. But that is a different subject).
My dad went on to say that as a parent he had to do the same thing. If he said I could play with my hardball in the back yard (I did, constantly), then he suddenly said I couldn’t because I was breaking windows with it (did that too), then that might be unfair.
But he was not going to do that, and so long as I was allowed to play at home that was even more of a reason not to complain about my teacher’s rules. It was not as if I was never allowed to play with it, just not where I might injure those losers playing Four Square in the corner.
Suddenly I got it.
Our little talk has stuck with me to this day. As I read the tweets from Trump spewing about how he would NEVER bomb Syria just after Assad had gassed some 1400 innocent civilians way back in 2013, and warning Obama never to do that, I immediately thought of that hardball chat.
When talking about Governmental actions, Due Process is generally called The Rule of Law.
In government, as in the criminal justice system, there are innumerable laws, rules and protocols that dictate the right way to do things. As is the case with Due Process, the Rule of Law is not perfect. Innocent people are convicted and guilty people go free even after fair and impartial trials. Governments declare pointless and wasteful wars even when they follow the correct procedures.
Still, the Rule of Law is our best protection against arbitrary and unfair conduct by the government.
This approach accomplishes two things:
- It limits the power of government; it can’t do more (or less) than the rules allow. Like my second grade teacher’s rule, those rules were agreed upon by (or at least explained to) everyone involved up front.
- By the same token, The Rule of Law provides predictability to the public, not to mention the rest of the world. They know what they can and cannot do.
We could get into a long diatribe about lawyer stuff like ex post facto application.
For example, you cannot pass a law one day that makes something illegal that happened the day before.
That would be unfair, as it would make it impossible for citizens to know what they could not do at the time they did it. If you spit on the sidewalk on Monday, Congress cannot say the following Tuesday that it was illegal to do so yesterday.
But you get the idea of how it all works when you look at it that way. I hope.
Does this ring any bells with respect to this situation?
A week before the bombing Secretary of State Tillerson (Breitbart… hehehe) said that the U.S. was not going to interfere in the internal affairs of Syria. No way! he said. Even some conservative Senators have speculated that this prompted Assad to make his horrific gas attack. He mistakenly thought he could bring his hardball to the “game” after hearing Tillerson say that.
The real problem here is consistency. And predictability. It would be ridiculous to argue that it was fine for Assad to gas babies so long as he is in his own backyard, although there are some hard liners who may say that. They point out that it is none of our business.
Many of us can’t stomach that idea.
But the World needs to know where we stand and what to expect from us. If they do not, chaos ensues. The bombing in Syria is, conceptually, no different than banning children from playing with hardballs. While the subject matter is vastly different, the procedure for controlling the behavior is virtually identical.
State the rule and do not change it. At least don’t change it without congressional oversight and approval. That is how our entire criminal justice system works. Without that, people would be running wild in the streets, like seven year olds without any adult supervision. Or running wild because the adults are twiddling their thumbs while the kids trash the place.
And that is the final, and in some ways, most important point.
I keep telling people I try not to take sides – at least not in this blog (I take sides constantly in my work.) Here’s the proof:
For all of the liberals out there crowing about how Trump is making it up as he goes along (he is), suddenly enforcing rules that he said he would never enforce, causing confusion and uncertainty around the world, consider Obama’s approach to Syria. I respectfully submit that he is no better than Trump in this department.
I am talking about the Line in the Sand. When you lay down the law, you’d better be ready to back it up when the time comes. Obama said he would never tolerate these gas attacks. Until he did. When you think about it, it is almost the mirror image of Trump’s actions.
So, there you have it. As I said at the outset, these blogs – since they are meant to be relevant to law, more than world affairs – are designed to show how legal concepts can apply to areas other than courts and trials. That is what I set out to do and hopefully I have accomplished that.
But it is more than that. Having explained how the law works, my hope is that, like that seven year old redhead playing in his back yard in a little town in Illinois, people might think about what my dad said, way back when (thanks, Dad).
And learn something.
I hope it encourages everyone to stop blaming each other and complaining, and instead start working to create a predictable, fair, understandable foreign policy that tells the World what they can do. And what they can’t. And, who knows? If that happens maybe they might all stop behaving so badly.
You never know. It certainly couldn’t be much worse than it is now.