06/20/2009 05:12 am ET | Updated May 25, 2011

The American Myth and Chinese Reality

Rule of law. For many Americans that simple statement unleashes a host of images and preconceived notions. Thinking about blind justice holding her scales? See, the myth prevails. From an early age Americans are taught the law is a neutral arbiter. That we can expect a fair trial, impartial enforcement of our legal code, and strict adherence to these principles at all levels of national, state and local government. As it turns out, we've been collectively fooled -- rule of law in the United States is a popular legend that even the Chinese Communist Party admits is hard to realize.

Why this cynicism? Consider for a moment the hubris associated with the Bush administration's interpretation of legal statutes concerning the use of torture. Please note my terminology here is purposeful -- a prisoner of war or "protected person" (all others detained by the military) is shielded by the Geneva Conventions. To escape this internationally-recognized requirement for the humane treatment of prisoners, and to abet their indefinite detention, the Bush administration cleverly labeled the persons rounded up during our Global War on Terrorism "enemy combatants." In one fell swoop Washington managed to dodge our historic commitment to international protocols and set the stage for employing brutal interrogation techniques.

This was just step one. We now know John Yoo and his counterparts at the U.S. Justice Department (I'm beginning to think this is a misnomer -- perhaps Legal Opinions Department would be more appropriate) set about justifying the Bush administration's policies by asserting executive authority to undertake waterboarding and other "enhanced interrogation techniques." According to Yoo and company, the president was not bound by the War Crimes Act, and could engage in warrantless wiretapping if it served to protect the nation from another terrorist attack. Not exactly the impartial enforcement of legal statutes we were all raised to believe in.

Yoo's response to his critics is symbolic of just how deluded most Americans are when it comes to rule of law. During a December 2005 debate with University of Notre Dame professor Doug Cassel, Yoo took the following positions. When asked, "If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?" Yoo replied, "No treaty." Cassel then declared, "Also no law by Congress -- that is what you wrote in the August 2002 memo..." to which Yoo replied, "I think it depends on why the president thinks he needs to do that."

Yoo was hardly alone in coming to this conclusion. Former Secretary of State Condoleezza Rice has expressed similar opinions. In an April 2009 conversation with a Stanford University student Rice declared, "We were told, nothing that violates our obligations under the Convention Against Torture. And so, by definition, if it was authorized by the president, it did not violate our obligations under the Conventions Against Torture." In other words, our legal system is subject to the philosophical whims of whoever sits in the White House.

Don't believe me? Consider the executive branch's mounting employment of signing statements -- the presidential pronouncements that can serve to modify the meaning of duly enacted laws. Until the 1980s, signing statements were generally rhetorical or political proclamations and largely occurred without drawing attention. Historians believe that before the Reagan presidency only 75 signing statements had ever been issued. Reagan, George H. W. Bush and Bill Clinton more than tripled that number -- producing 247 signing statements containing 505 constitutional challenges during their combined 5 terms in office.

By the end of his two terms, George W. Bush had approved 161 signing statements challenging over 1,200 sections in various bills. Why do we care? These signing statements essentially allow the president to ignore or alter enforcement of legislation the White House finds objectionable -- regardless of how that bill read when it left Capitol Hill. So much for the balance of power and constitutional protection of individual much for impartial rule of we have rule via selectively interpreted law.

This does not stop some in Washington, however, from soundly condemning Beijing for failing to wholesale subscribe to our myth. I'll be the first to admit the Chinese legal system is far from perfect -- but Beijing openly acknowledges this shortfall and is actively seeking to fix the problem. Over the last 30 years China has passed over 250 new laws and is in the midst of establishing an entire national code after starting from nothing. One can debate if this is progress, but lawyers, who were once all employees of the state, have now opened over 12,000 private firms.

The Chinese Communist Party has also taken steps to legally protect its constituents from the government. The 1989 Administrative Litigation Law enabled citizens to sue the state -- 13,000 did so in 1990, more than 150,000 such cases are now filed annually. In a similar vein, the 2005 Public Servants Law set new tough standards for official conduct. The Chinese Communist Party knows it must tackle the nation's corruption problems...and has acted accordingly, including execution of the most severe scofflaws.

As I said, this does not mean the Chinese system is perfect. In fact, China's Premier has told American scholars his country's judicial system needs to be reformed in order to assure the judiciary's "dignity, justice and independence." In other words, he is seeking rule of law -- not rule by law. It's beginning to appear we could use a heady dose of this kind of honesty right here in America. It would seem we need to stop subscribing to the American myth and begin learning from China's reality.