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.

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