Incompetence accelerates rule of law decay

The recent scandal involving officials’ use of the Signal app for classified discussions reveals the compounding effects of official foolishness on flawed governance

Often, we think about violating the rule of law as primarily legal. That characterization may seem trivial or even tautological. Less appreciated is the role of outright government incompetence in imperilling the rule of law.

In an article called “Covid-19, State Effectiveness, and Core Values of Political Morality”, I explored the relationship between rule-of-law breaches and official incompetence during the COVID-19 pandemic response. As I concluded, official incompetence was not incidental to the rule of law violations that occurred but rather central.

What does aptitude have to do with it?

There are several linkages between government competence and the rule of law.

A basic connection derives from the ultimate purpose of the state. While there are many reasons for creating states, a dominant reason is to supply certain types of public goods or services. People come together to create and build states to meet such needs as security, public safety, transport, education, and health. Competent administration is necessary to deliver these benefits.

Rule of law failures may undermine state capacity, and poor capacity may, in turn, lead to rule of law violations. It’s no coincidence that the countries with the highest levels of public services also rank well in terms of governance quality.

A second link stems from the fact that the roles and duties of public officials are circumscribed by a panoply of rules and procedures that proscribe inadvertent, negligent, and reckless behaviour.

Acts of incompetence may thus constitute not only managerial failures but also violations of the law.

Third, capacity erosion may compromise states’ ability to uphold rules and procedures designed to maintain the rule of law. As Gerald Postema has written, these measures include provisions designed to ensure recourse against the government’s abuse of power.

Laws that mandate government transparency, enable redress for erroneous determinations or wrongful decisions, and maintain standards of integrity through oversight functions are all critical to the rule of law.

Destroying state capacity to administer such laws will directly undermine the rule of law.

A Signal rule of law failure

The Signal scandal illustrates the diverse ways competence affects rule of law in practice. At a basic level, the fact that the highest officials of the largest military power in the world were discussing an attack on an unsecured line was itself a remarkable display of incompetence. Including an outside journalist in the official chat exacerbated the error.

On their face, these actions might appear as mere stupidity. Looking deeper, the actions may have violated the law. The Espionage Act, as well as possibly other official secrets and record-keeping acts, may have been breached.

Yet the government’s response turned a possible legal violation caused by official incompetence into a rule-of-law transgression.

To simplify the convoluted history, three main types of responses relevant to the rule of law occurred. First, was the effort to block any accountability for the legal violation. Even before an investigation was launched, the administration and Republican members of Congress already made clear no officials would be disciplined for these felonies.

Next was the effort to cover up the misconduct. In her testimony to Congress, the Director of National Intelligence denied that any classified information was released or that war planning was discussed.

Further release of information by journalist Jeffrey Goldberg showed the precise elements of the war planning that occurred, thereby exposing the testimony as false and potentially perjurious.

Next was the effort to attack the press. Confronted with the facts, Pete Hegseth, Michael Waltz, and the President turned to insulting The Atlantic magazine and Goldberg as if those claims were somehow relevant to the violations of security and law. Of course, these actions are part of an ongoing broader administration campaign against the media, intended to gut accountability from that side.

More surreal have been the efforts to spin the debacle as a window on these officials’ underlying competence. Speaker Johnson opined risibly that the released chat showed how seriously these people took their jobs.

Seeking to end the flurry of annoying demands for accountability, Presidential spokesperson Karoline Leavitt announced on April 1 that “this case has been closed here at the White House.”

Rebuilding rule of law about more than legal changes

The rule of law is on the ropes today, not just because of the intentional action of the administration.

It is also a consequence of actions to hollow out state capacity. The basis for failure began with the decision to appoint manifestly unqualified and unfit people to lead. Actions to decimate the federal civil service through mass firings, pushing early retirement, and eliminating all probationary staff regardless of performance widened the competence gap.

Carelessness and bad management — in legal terms, recklessness, negligence, and nonfeasance — have compounded these capacity declines.

I’ll dare to predict that it’s doubtful the Signal scandal will be a one-off event.

Rebuilding the rule of law in the US will take many years. Realistically, what’s needed will not be simply recreating or tightening legal and accountability mechanisms. It will also require rebuilding state competence, an arduous and much longer-term task.

Originally published at https://tommcinerney.substack.com.