Matthew Diaz and the Rule of Law

By Scott Horton

Law professor and Los Angeles Times columnist Rosa Brooks examines the court-martial of Commander Matthew Diaz and comes out almost exactly where I did.

The prosecution of Diaz highlights the degree to which U.S. interrogation and detention policies have become unjustifiably arbitrary. Our detention policies scoop up the innocent and the guilty alike — and Diaz, who broke the law in an effort to prevent abuses, found himself aggressively prosecuted, while others who committed abuses remain wholly unaccountable. That’s no way to promote the rule of law…

The jury understood that the persistence of deep injustice may lead some to break the letter of the law in an effort to uphold the law’s spirit. When Diaz mailed the list of detainees to human rights lawyers, he did the wrong thing — but he did so for all the right reasons.

All prosecutors make choices about which cases to pursue and which to drop. The Diaz case is exactly the sort that no conscientious prosecutor would ever have pursued. And the juxtaposition of this case with the enormous number of prisoner abuse cases that go unprosecuted reveals something totally perverse: a prosecutorial intention to subvert the Rule of Law. This is not justice. Rather it is the precise opposite.