Just before midnight on November 3, President Pervez Musharraf went on television and declared a state of emergency in Pakistan. “My dear brothers and sisters,” he said, “[our nation] stands at a dangerous crossroads.” Terrorism and extremism are ripping the country apart, he said, but there is a far more fundamental and immediate threat: lawyers and judges. Thousands of people have brought actions challenging the legality of police and military actions, he said, and the law enforcement agencies were “demoralized” as a result. The only solution was for the general to assume total authority.
And then the general switched from his native Urdu to English. His closing remarks were intended not for his fellow citizens but to our friends in the United States.” He told his audience that he was inspired by Abraham Lincoln to assume dictatorial powers and declare emergency rule. He quoted Lincoln’s 1864 question: “Was it possible to lose the nation and yet preserve the Constitution?”
There is something rattling about a foreign military leader assuming dictatorial power and quoting Abraham Lincoln as his inspiration for doing so. But even more troubling is the notion that lawyers and judges, just doing their work, administering and enforcing the law, undermine the power and authority of the state and advance the interests of terrorists.
Within days of the speech, two-thirds of the nation’s judges, including the entire Supreme Court of Pakistan, were under house arrest. At least 400 lawyers had also been arrested.
Pakistan’s legal profession had been struggling with the general for months before that speech, ever since Musharraf had removed the nation’s popular chief justice, Iftikhar Chaudhry, the previous spring. The lawyers rightly saw the move as a frontal attack on the nation’s legal system.
And so they did something uncharacteristic for lawyers. A few weeks later, hundreds of lawyers, along with Chaudhry and other judges, took to the streets to protest. On The Daily Show, Jon Stewart showed clips of lawyers in dark suits and white shirts marching, chanting, throwing the occasional stone, and being beaten by the police. It was natural fodder for Stewart; there is something a little absurd about crowds of judges and lawyers engaged in violent protest. Shouldnt they be in their offices writing strongly worded amicus briefs instead?
The Bush administration hasnt exactly sided with the lawyers, but it has pressed Musharraf to make some concessions to his democratic critics. Under Condoleezza Rice, the U.S. Department of State has pushed Musharraf to broaden his government by bringing in one of the centrist Pakistani political parties. And it urged Musharraf to take off his military uniform before being sworn in for a new term as president in mid-November.
Ironically, Musharraf has rebuffed this message, in part with the Bush administrations own language. Musharrafs policy appears to be a rehashing of a concept called “lawfare,” a poor play on “warfare” that has fairly innocuous origins among American defense analysts starting in 2001. The idea, however, quickly developed into something more virulent under President George W. Bush. The most formal statement of the lawfare idea came in a Pentagon statement in March 2005: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” By equating law to terrorism, the lawfare doctrine challenged basic notions of the rule of law. On that night in November, Musharraf quoted that rhetoric right back to the Bush administration. In the wrong hands, the dictator seemed to be saying, the rule of law can be wielded like a weapon.
In recent weeks, the lawyers and their allies have faced a number of reversals, but they have also gained some ground. Still, it’s hard to imagine how the country will move toward stability without commitment to the rule of law. The legacy of America’s greatest president tells us so.
Scott Horton lectures at Columbia Law School, works on military contractor issues for Human Rights First, and is on the board of the National Institute of Military Justice.