This story came across the news wires today:

Judge Dismisses Lawsuit Against Rumsfeld

WASHINGTON — Former Defense Secretary
Donald H. Rumsfeld cannot be tried on allegations of torture in
overseas military prisons, a federal judge said Tuesday in a case he
described as "lamentable."

U.S. District Judge Thomas F. Hogan
threw out a lawsuit brought on behalf of nine former prisoners in Iraq
and Afghanistan. He said Rumsfeld cannot be held personally responsible
for actions taken in connection with his government job.

    I understand why the judge came to this ruling: immunity (or is it a form of indemnification?) of this sort is very common.   Individuals serving in government positions may have to make decisions that cause some people harm.  If administrators were held personally responsible for every possible negative consequence of the policies they enact, they could face constant law suits.  The judge in the Rumsfeld case says as much:

Allowing the case to go forward, Hogan said in December, might subject
government officials to all sorts of political lawsuits. Even Osama bin
Laden could sue, Hogan said, claiming two American presidents
threatened to have him murdered.

     I understand all this.  But, when I saw this story, a question (you’ve heard this before, I know) popped into my mind: what would Confucius do?

      Confucius would not separate personal and political responsibility in this manner.  For him, political leadership is an extension of personal character.  Only individuals who live a morally good life, attending daily to their social and familial responsibilities, should be in positions of leadership.  It is precisely the exemplary effect of their personal virtue that would form the basis of their political position and role.  The good lead by example, and their example extends that goodness to others.

    To turn this around, if a leader committed or authorized a bad act – and I would assert here that torture is a bad act – it would, by definition, undermine his personal moral character and, thus, destroy his claim to rule.  A person is only good insofar as he continues to do good deeds.  If he does something bad, or encourages and supports something bad, he cannot say that he is still, somehow, "good."  Goodness is a performance; it is not an existential attribute.  If you are not doing good, you are not good. 

    To the extent, then, that only the good should rule, then Rumsfeld should have been removed from office as soon as the torture he authorized was revealed.  Of course, if he were a virtuous man, he would have resigned.  He did not.  And Confucians, especially Mencians, are open to taking direct political action against bad rulers.  This does not necessarily have to be constrained by the law, since Confucians see the law as a flawed and crude device.

      But even if Confucians might accept extralegal means to depose a bad leader, what about after the leader has left office?  Should Rumsfeld be punished now, after the fact?  Confucians are not particularly interested in retribution and punishment.  Rather, they would invoke Rumsfeld as an example of a bad ruler, a symbol of how not to rule, along the lines of tyrants Chieh and Chou.  He would be a negative example for all time.

    The bigger question for Confucians would be doing the right thing now; that is, demanding that the torture stop.  And to do that, we would need to work for Bush’s resignation – he is, after all, the most responsible of all.

     Confucians might say: Forget about impeachment – a legal process – but call for Bush’s resignation for the immoral torture he created and defends.  If he fails to act, it simply demonstrates the moral bankruptcy of his regime, and more people will come to call for his resignation.  And if enough people do that, a real political effect might be had.  This sounds rather idealistic to me, but, then again, Confucius was, in many ways, an idealist.  But if it didn’t work after a time, Confucians might be willing to go much farther than impeachment…perhaps a topic for another post sometime soon.