I am brushing up on my Friedrich Hayek these days, and I am reminded of Hayek's chapter on the Rule of Law in his famous book, The Road to Serfdom. Hayek would chafe at the Bush Administration's Department of Justice and the work of the Office of Legal Counsel in drafting bogus memoranda legitimizing (post-facto, even) the arbitrary use of state power in the interrogation of suspected Islamic terrorists. In fact, there is nothing freedom-loving at all in how the Bush Administration usurped popular sovereignty for its own secretive and power-grabbing ends. Think about the following passage from The Road to Serfdom as it may apply to the Yoo and Bybee memos in the Bush Department of Justice, memos which sought to grant post-facto juridical cover from the legal prohibitions against torture and an arbitrary exemption from what Hayek would call the Rule of Law:
The idea that there is no limit to the powers of the legislator is in part a result of popular sovereignty and democratic government. It has been strengthened by the belief that, so long as all actions of the state are duly authorized by legislation, the Rule of Law will be preserved. But this is completely to misconceive the meaning of the Rule of Law. This rule has little to do with the question whether all actions of government are legal in the juridical sense. They may well be and yet not conform to the Rule of Law. The fact that someone has full legal authority to act in the way he does gives no answer to the question whether the law gives him power to act arbitrarily or whether the law prescribes unequivocally how he has to act. It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule of Law still prevails in Germany?Now, Hayek was writing this with the legislative practices in Germany, Italy, and Russia prior to WWII in mind, practices that basically gave a semblance of legal cover to the dictatorial rule of Hitler, Mussolini, and Stalin. Though he doesn't mention specifically the similar practices of manipulation of the law from within the executive branch of government, I think it is a safe bet that Hayek would have been even more disturbed by the Bush Administration's behavior because its legal shenanigans in parsing the law so as to give post-facto cover to the illegal practice of torture did not even make a pretense to democratic sanction through an elected legislative body, but rather was conducted in secret within the executive itself. In essence, the Bush Administration's behavior was even more arbitrary and dictatorial than what Hayek was even imagining. In fact, I imagine that Hayek would have been shocked and mortified by the Bush Administration's behavior and would have been equally shocked and mortified that Americans claiming to be Hayekian conservatives and advocates of the ideas contained in The Road to Serfdom would defend the Bush Administration's behavior.
To say that in a planned society the Rule of Law cannot hold is, therefore not to say that the actions of the government will not be legal or that such a society will necessarily be lawless. It means only that the use of the government's cooercive powers will no longer be limited and determined by pre-established rules. The law can, and to make central direction of economic activity possible must, legalize what to all intents and purposes remains arbitrary action. If the law says that such a board or authority may do what it pleases, anything that board or authority does is legal--but its actions are certainly not subject to the Rule of Law. By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable. ...
The Rule of Law thus implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law and excludes legislation either directly aimed at particular people or at enabling anybody to use the coercive power of the state for the purpose of such discrimination. It means, not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used. -- [The Road to Serfdom, pp. 82-84 of the 1962 Phoenix Books edition. The italicized portions of the text cited above are mine.]