The Paradox of Law: The Past as Prologue

by Mario Rizzo


As an economist who has specialized in the economic analysis of law, I am quite frustrated by the statements of some commentators that the Obama Administration and the Congress should not look backwards in trying to uncover and/or prosecute member of the Bush Administration who may have been guilty of illegal actions, war crimes, crimes against humanity, violations of the Geneva Conventions and so forth.


In a sense, the prosecution of any alleged criminal is pointless. The act is done – the past is irrevocable – so why not just look to the future and not let it happen again?


Life is not like that. The law looks backwards so that it won’t happen again – or, at least, that the chances that it will happen again are reduced. To wax philosophical for a moment: We live in time and there is continuity between the past, present and future.


With all of the advantages of power – especially secrecy – what are the incentives to keep the State in line? We have laws and treaty obligations. When they are violated, is it enough that those guilty merely be subject to public disapproval? We cannot vote Bush out of office. We cannot now impeach him. We cannot convict him in a trial before the Senate. Any Administration can avoid all of these things by keeping things covered up until they are out of office. So the incentive to secrecy is great. The power is there to accomplish it. So the “political system” can be prevented from doing its job of disciplining office holders.


So now what? If the Constitution and our laws have worth beyond the papers they are written on, there must be consequences. There must be investigations and prosecutions if warranted. There is no other option that can make the system honest.


People will say that there have been worse crimes than possibly approving torture, illegal wiretapping, etc. For example, there was the fire-bombing of Dresden during the Second World War – an act without justification except vengeance. (And I have not mentioned Harry Truman deeds.) But this is just evidence of what the government is capable of where there are no consequences.


More relevantly, there is the objection that an inquiry into the Bush Administration actions will split the country and cause unrest. My answer is simple. Americans need to know what went on if they are going to control their government in the future. If people argue about what the government has done and whether it was justified, then that is all to the good. It will take the place of discussions about Michelle Obama’s dresses, the first-dog, etc.


Finally, if we expose what was done and it is bad, then that exposure will give “ammunition” to our enemies.  First, the enemies almost certainly know more than the American people. (Perhaps they read the Washington Post or New York Times.) Second, we have bigger fish to fry: the integrity of our system of government. We can survive terrorist acts but we cannot survive the collapse of the rule of law. Third, we would not be simply exposing what when on but punishing it when appropriate. This is loyalty to great ideals. The world will notice.

3 thoughts on “The Paradox of Law: The Past as Prologue”

  1. In a country with a legitimate opposition party, impeachments, convictions, and incarcerations would be possible. It would make for great theater, too.

    Sadly, we don’t have two political parties. We must endure a lying, spying, looting, warmongering machine.

    Not to worry. The vast criminal enterprise known as the U.S. Government is digging its own grave through unbound hubris and ignorance. What isn’t known is what will replace it or how much damage it will inflict on the rest of us before its final death throes.

    These are interesting times.

    1. “These are intersting times” Yes indeed. Have you hear the old Chinese curse. “May you live in intersting times”? It’s not going to be pretty or nice, it’s going to be royaly f@#ked up. Get ready people it’s coming and soon.


  2. Mario Rizzo, very well said eloquent and to the point.

    We have forsaken a Republic of laws in exchange for Fascist Tyronny. Democracy without law is simply mob rule, where the strongest kill and eat the weak. It kind of reminds me of Detroit (ha ha).

    Has anyone checked out the new push for CIFTA? It’s nothing new but with Obama in charge and with the Dem’s in, it just might fly. They should call it GRUNT, Grabbing Rifles United Nations Treaty. Now I’ll be a criminal for reloading my shells or mounting a new scope, or even breaking down my rifle to clean it.

    I know it seems off subject but bear with me. They want our guns for a few reasons. First, so we can’t protect ourselves and we run crying to them. Second, so we can’t protect ourselves from them. Third, so they can remain above the law and live without fear of rebelion.

    Check out these two clips from Lew Rockwell.

    The first is about GRUNT, I mean CIFTA. The second is titled “Milwaukee’s Criminal Police Chief and Civilian Disarmament”.

    Try and protect yourself and your family and see what these Fascist will try and pull on you.


  3. The criminal organization that goes by the name of the government of the United States is living on borrowed time. As Dr. Paul likes to say the downfall of the United States government will not be defeat on the battlefield, but rather internal economic rot. The economic basis of the American empire, the status of the dollar as the reserve currency of the world, is being destroyed by the Fed, and a Consolidated Government that exercises no restraint and recognizes no limits to its power. I do not think it is a question of if the American empire will fall, but only a question of when.
    When the fall does come, I think ideas will be just as important if not more important than guns. All to often when criminal governments are toppled they are replaced by equally criminal if not more criminal governments. If American civilization is to be rebuilt, it will be done so on the basis of peace and the economic ideas of Ludwig Von Mises. The important question is whether these ideas will prevail after the collapse, or will another version of the state is god idea prevail.

  4. Yeah sure, don’t look backwards. Don’t punish that arsonist. It won’t bring back that building he burnt down.

  5. It seems that the conservatives–both Republicans and Blue Dog Democrats such as Obama–consider torture, forced disappearance and felony murder mere breaches of etiquette, matters of taste or “policy differences,” not the war crimes, serious human rights violations and felonies they unequivocally are in US and international law.

    The very people who decry “moral relativism” are telling us that there is no fixed standard of right and wrong. There’s something strange and hypocritical in this special pleading. After all, we have frequently used such offenses as justification for war when people we no longer liked, such as Saddam Hussain and Manuel Ortega, had a history of ordering them under our sponsorship and tutelage.

    Obama and Holder have gone so far as to characterize torturers and murderers as dedicated public servants acting in good faith under the law. What? Torturing in good faith? The 43 deaths in US custody ruled homicide by military pathologists are evidence of good faith to this administration, but not to right-thinking people.

    The world is watching, and no one more than the world’s billion-plus Muslims. If we don’t take action, what does this say to them about our attitude towards the victims, our estimation of their humanity and the value of their lives and rights? A salafist recruiter couldn’t hope for more from Obama.

    And what of our allies, who now view us as a barbaric bully to be kept at a distance? How can we regain their trust if not through re-establishment of the rule of law?

    If impunity persists, what of future war criminals? What is to deter them? Hitler, Stalin, Mao, Pol Pot and Pinochet could not have done much evil acting alone. It took willing accomplices, and if systems are not in place to deter such accomplices, protection from evil designs conceived in high places is illusory.

    And how can we protest credibly if American military personnel, diplomats or civilians are tortured or even murdered abroad?

    There is a lot at stake here, far too much to be swept under the rug by the craven, the lazy, the calculating and the implicated.

    1. …the lazy, the calculating, and the implicated. To which, I would add the selfish and the narcissitic. Dick Cheney knows the moral weak spot of this country – it is the complete self-absorbtion of many Americans. A self-absorbtion that asks only that they can live a nice surburban life style with new cars, kids on sports teams, and a growing 401K. If half of the rest of the world needs to be tortured, invaded, or even nuked to achieve this, “well just do it, as long as we are safe”.

      1. I happened to turn to the 700 club ,and there was he ,Mr morality himself Pat Robertson saying that Obama should never have released those torture memos becuse there any reason to do so either legal,moral,or otherwise and that actions would show that democrates and Obama were soft on deffense ,and the security of the country!

    2. A lot of Americans take for granted that it won’t happen to THEM — just other people.

      Lester Ness

  6. Laws, regardless of eloquence has never protected anyone. They are a part of the clean up-after the fact. They are a part of the revenge cycle of which prosecutors and police do their work. The laws against murder never stopped the murderer.
    And it is revenge and I find it telling that they say in God we trust. If they really believe in God, then what they’re doing is double-jeopardy.

    1. Which god do they trust in? Their god is their belly, I suspect.

      Lester Ness

  7. We can survive terrorist acts but we cannot survive the collapse of the rule of law. Third, we would not be simply exposing what when on but punishing it when appropriate. This is loyalty to great ideals. The world will notice.

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