What is the most important moral test facing the United States today? In just a little over five years, the new century has presented us with many daunting challenges. Yet one issue calls for particular attention. I am referring to an emerging pattern of disregard-or worse, outright rejection-of the rule of law in America, and not merely in practice, but as a fundamental ideal: a willful disregard of elementary requirements of due process, together with norms of consistency, transparency, and other elements of what might be described as the ideal of legality.
The dangers posed by world terrorism and violence have created a climate in which rule by an all-but-unchecked executive and the disregard of individual rights are broadly seen as not only justified, but necessary. It is startling to consider what has become routine in just half a decade. Eminent jurists argue that the president can act without regard to congressional constraints or judicial review, by virtue of his powers as commander-in-chief in time of war. (And we are now apparently always at war.) Government officials, on the command of the president, carry out clandestine electronic surveillance in the United States, in defiance of explicit laws and without regard to even the minimal accountability built into those laws. Worst of all, torture has been defended in principle by, and incorporated into the practices of, the U.S. government.