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War Powers, War Lies: A Series: Part XIX: Are You Now, Or Have You Ever Been?

            This series has mainly been about the Executive and the Judiciary.  The Executive begins, wages, and (as is happening now) tries to find ways out of wars.  The Judiciary, very occasionally, serves as a check on such activities.  The Legislative Branch, which in the Founding Fathers’ design was supposed to have had the sole discretion to initiate wars, has been nearly left out of this discussion because there has been so little to discuss; Congress has proven toothless and irrelevant.  But now it is time to talk about Congress again.

            We have been considering the attacks on civil liberties of speech, association, and even thought which have been mounted by the Executive in the name of defense in time of war.  As we have seen, these attacks sometimes stemmed from nothing worthier than the desire of the Executive not to be criticized, or to build political support by pandering to xenophobia or political or religious reaction.  But sometimes these attacks have been conducted to address real problems with treason, or espionage or subversion by agents of foreign powers.  As we saw last time, the loyalty reviews begun by the Truman administration, reviews which persisted until the 1970s, were instituted because domestic Communism posed both a political embarrassment to Truman and a real threat to the autonomy of the U.S. government during the Cold War.  (Unfortunately, as we also saw, these reviews ultimately proved imprecise tools, destroyed a remarkable number of innocent governmental careers, and grew to constitute a threat to civil liberties far graver than the threat to national security they were intended to counter.)

            In the 1940s and 1950s, Congress got into the act as well.  It passed some laws and conducted some investigations.  We shall consider them briefly this time.

            The two most important anti-Communist laws were the Smith Act of 1940 (54 Stat. 670-71), and the Subversive Activities Control Act, Title I of the Internal Security Act of 1950 (64 Stat. 987).  The Smith Act criminalized advocating overthrowing the government by force or violence.  The Subversive Activities Control Act effectively required the registration of the Communist Party of the United States (“CPUSA”) and the revelation of the names of its members, the registration of the identities and memberships of Communist “front” organizations.  It also imposed certain disabilities upon Communists, including loss of passports, inability to naturalize as citizens, denaturalization, disqualification from access to classified government information and hence to jobs which required such access, and from employment as labor union officers.

            As we have seen, Justices Holmes and Brandeis, in influential dissents starting in 1919, refined the “clear and present danger” test for speech and association the government could penalize as sedition.  Their reasoning was that even heated rhetoric about violent overthrow of the government, without any real likelihood of influence, did not constitute such a danger, and hence its prohibition would violate the First Amendment.  The rise in domestic Communism during the 1930s and the advent of the Cold War starting in 1945 provided a plausible way around this roadblock.  No sane person could envision that the U.S. faced immediate peril from violent overthrow by Stalin’s stateside minions.  It was nonetheless conceivable that such peril might arrive someday.  Legislative findings in the 1950 Act attempted to use imaginings about a hypothetical future to square the circle.  These findings included notice that the “rigidly and ruthlessly disciplined” CPUSA is “awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement.”  To whom it might seem that way was not spelled out.  Nor was the discontinuity between hypothetical conditions that might exist in the future and the “present” element of the clear and present danger test.

            Moreover, there was a real question whether the Congressional finding was even accurate in describing what most domestic Communists believed and aspired to.  It was possible to find some advocacy of violent overthrow of “petit bourgeois” governments in the voluminous writings of Marx and Lenin, but these words, going back as far as 1848, were written in a vastly different context from that of mid-20th Century America.  The Supreme Court had recognized as much in Schneiderman v. United States, 320 U.S. 118, 154-55 (1943).  Many dedicated American Communists would never have dreamt of violent overthrow.  A typical case was that of Maryland attorney Maurice Braverman, a Smith Act convict who convinced the Fourth Circuit (if not the majority of the judges of the Maryland District Court sitting en banc), that he personally had never advocated or even understood that Communism included advocacy of violent overthrow.  Matter of Braverman, 549 F.2d 913 (4^th Cir. 1976).  But the linkage had to be made if the persecution of Communists was to succeed in the courts.  After the Brandeis-Holmes First Amendment jurisprudence, Communism could not be criminalized or oppressed unless such advocacy was effectively linked to it.  Congress, in passing the 1950 Act, tried to provide that link by making legislative findings designed to avoid the messy and unpredictable individualized fact-finding judges, juries and Supreme Court justices were dispensing in individual trials of individual Communists.

            The Government deliberately provoked a major test of the Smith Act by a show trial of Communist leaders in 1949 in New York that became Dennis v. U.S., 341 U.S. 494 (1951).  The offense charged was that these leaders had met to plan a reorganization of the Party, including publications and training sessions in which they would spread Communist doctrine.  The Supreme Court, in a ruling by Chief Justice Vinson, genuflected low to the Brandeis-Holmes approach, but upheld the Smith Act by interpreting the “present” element out of existence, by affirming a jury instruction that an intent to inculcate revolution “as speedily as circumstances would permit,” even if it might mean never, and irrespective of the revolutionaries’ chances of success, could constitute a clear and present danger.  The 1950 Act, and the legislative linkage of CPUSA to advocacy of violent overthrow, were upheld in Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1 (1961).

            With the framework of these laws in place, the Congress was free to hunt the Communist witches.  Most historians would tell us that by the time the Congressional investigations were well under way, whatever threat domestic Communist subversion had truly posed was largely gone.  The atomic spies had already stolen our secrets and sent them to Russia, the labor unions had purged most of their openly or covertly Red officers, and U.S. foreign policy was again being made and conducted exclusively by functionaries who reported to Washington, not Moscow.  And CPUSA was bereft of numbers or relevance, kept on secret economic life support by the Kremlin.  Still, anti-Communism was boffo at the political box-office.  And so Congress in effect discovered a war power of its own.

            The theory of legislative investigations is that they are intended to provide information for Congress to use in framing new laws or revising old ones.  And certainly the Subversive Activities Control Act of 1950 can legitimately be counted as the fruits of this early investigative endeavor.  But fundamentally the investigations were political theater from start to finish.

            The great witch-hunts really began when Richard Nixon, as a freshman congressman, became a star on the House Committee on Un-American Activities (“HUAC”) after the Republicans seized control of Congress in the elections of 1946.  In the newly-reformed Committee, he was fed information by J. Edgar Hoover and the FBI, and also by Father John Cronin, point man for the U.S. Roman Catholic Church’s anti-Communist efforts.  Nixon used these sources t o gain great celebrity in grilling witnesses like Whittaker Chambers, who unmasked Alger Hiss.

            It was an early version of the Red State/Blue State culture wars.  The first victims, for instance, were The Hollywood Ten,[Comment2]  a group of screenwriters, some of whom were also producers and directors, and some of whom had in fact been involved in mild efforts behind the scenes to keep anti-Stalinist messages off the silver screen.   But the real drama was in the dragging of members of the liberal Hollywood intelligentsia, mostly Jewish ones at that, to their knees before Christian middle American Congressmen and denouncing them for their politics.  One of two of them were still Communists, but most had already left the Party, which had destroyed its credibility with its double reversals of position on Hitler during the 1940s.  As is well-known, all were blacklisted, along with upwards of 200 of their creative fellows, many of whom were summoned to testify before HUAC in 1951.

            The two other great targets of the culture wars masquerading as investigations were the federal government, especially the State and Defense Departments, and the labor unions, all in their various ways Republican targets.  And the champion investigator was of course Joseph McCarthy, junior senator from Wisconsin, who was handed the reins of the Senate Permanent Committee on Investigations in 1953.  The investigatory style McCarthy and chief counsel Roy Cohn brought to the effort was a compound of vilification, false accusations, and innuendo.

            The central drama would be the ritual inquisition: “Are you now or have you ever been a member of the Communist Party?”  Given the Smith Act, a truthful yes answer might be self-incrimination, so most of the victims could take the Fifth Amendment, but that would subject them to just as much if not more opprobrium.  A no answer would draw abusive cross-examination.  Or the witness might “name names,” which would be just as theatrical and provoke as much notice.  Since Congress had found as fact by 1950 everything about the nature and role of CPUSA it may have felt it needed to pass legislation, the only purpose this ritual served was exorcism – and blame of the Democrats and liberals for having allowed the supposed inundation of government, politics and culture by Communists to have happened.

            The details of McCarthy’s personal comeuppance are well known.  It was one thing to humiliate and destroy real ex-Communists.  When he attacked the Army, however, a victim big enough to take care of itself, the loose and irresponsible accusations that had always been his hallmark no longer served him well.  His bluff was called, his accusations were found to be groundless, he was censured by the Senate, and, though he retained his office, he was finished politically.  He drank himself to death in short order.  The Red Scare largely died even before he did.

            The Smith Act remains on the books, and the Court has never repudiated Dennis explicitly.  But after the Dennis case the Smith Act became an unreliable tool.  The Supreme Court found in Yates v. United States, 354 U.S. 298 (1957) that revolutionary advocacy might not automatically amount to a clear and present danger, and courts dismissed many indictments.  As historian John Haynes concluded: “By the late 1950s the Smith Act was no longer effective against the Communist party.”   The effective provisions of the 1950 Act too were cut down by successive later rulings as the Warren Court gained ascendancy: e.g. Aptheker v. Secretary of State, 378 U.S. 500 (1964) (passport restrictions), Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965) (registration – as a compelled admission of violations of the Smith Act), United States v. Robel, 289 U.S. 258 (1967) (the bar to employment in defense facilities).

            But the final nail in the coffin – of both laws, really — was a case not decided under that Act, but under an Ohio state law which, like the Smith Act, made simple advocacy of violent means to change the government, irrespective of the likely danger or the imminency of the acts advocated, illegal.  In Brandenburg v. Ohio, 39 U.S. 444 (1969), the defendant was a Klansman, not a Communist, and really all he personally had been found to have done was protest an America in which African Americans and Jews had equal standing with the rest of the populace.  He told a TV interviewer that “it’s possible that there might have to be some revengeance taken,” and this was the closest he came to a threat.  Sanity prevailed, and the “clear and present danger” test, with its vulnerable ambiguity, was replaced with a First Amendment requirement that the speech be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  As it happens, hardly anyone ever engages in such speech, because, after all, there are truly very few real insurrectionists among us.

            With Brandenburg, finally, after nearly 175 years of failed efforts by presidents and Congresses to produce laws against sedition that remained politically and judicially viable, prosecution for sedition has stopped being a war power.  Well, most likely.  Eastern District of Virginia prosecutors in 2005 tested the limits of Brandenburg by successfully prosecuting Ali Al-Timimi, a Muslim cleric, for advocacy of jihad that may have helped persuade certain adherents to travel to Afghanistan to train with the Taliban.  That sentence is on appeal (and may be reversed without reaching the constitutional issue because of possible contamination by illegally-obtained NSA wiretap evidence).   Generally, though, it is notable that the many presidents since Brandenburg who waged fiercely criticized wars, including the present one, have not thought to prosecute their critics for sedition.

            Sedition has not worked, in the end, because it was always a phony concept.  Dissent is seldom disloyalty.  Dissent helps make this country strong.  And besides, dissent is as American and as common as apple pie.  Of course there will be espionage and subversion at times, but sedition laws neither should nor can be successfully used to counteract them.

            That is not to say that our presidents have suddenly grown accepting of criticism of their wars.  With the next column, we shall turn our attention to more modern invocations of war powers to marginalize critics, such as cutting off press access to vital information, manipulating media images, and new twists on good, old-fashioned disinformation. 

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies: A Series: Part XVIII: Proxies

            With the signing of Japan’s surrender on September 2, 1945,  the United States went to war.  This was a forty-years’ war, not a trifling four-year affair like World War II.  There was no declaration, and we never had a direct armed exchange of any consequence with our principal foe, the Soviet Union.  All military action in this war was waged through, or at least against, proxies, often on the home front.  But it was called a war, the Cold War, and governmental efforts connected with it to curtail First Amendment freedoms were justified essentially in war terms.

            The fact that it was a war waged with proxies had most peculiar consequences on the home front, where the enemy’s proxies were American Communists.  In today’s popular culture, the prosecutors and Congressmen who went after the Communists are often depicted as narrow-minded obsessives who played havoc with innocent Americans’ lives.  And this was largely true.  There is little good to say about the central figures, Senator Joseph McCarthy, a drunken demagogue, and J. Edgar Hoover, whose odious record is too well known to require comment.  But at least in the early going, the hunt for Communists addressed a real problem, not a made-up one.

            The problem started as a classic instance of the conundrum we have been discussing over the last two pieces: the difficulty of responding to a range of related activities that span the spectrum between legitimate party politics on the one hand and other acts fostered by the same political party that nonetheless amount to participation in war against the nation on the other.  The Communist Party of the United States (“CPUSA”) exemplified such a broad span.  Its charter, along with the charters of all communist parties, had once specifically subordinated it to the Communist International, located in Moscow.  Although the International was dissolved in the 1940s, and CPUSA formally dissolved its Moscow ties at around the same time, for much of its lifespan, CPUSA had been a party that, with little concealment and without apology, took its direction from the nation that, by the end of the 1940s, had become our great adversary.  (And of course the dissolution of formal ties meant nothing when Moscow was continuing to pay most of CPUSA’s bills.)  Subject to this Soviet direction, the Party switched from deploring Hitler’s fascism to approving it (after a Soviet-German alliance was suddenly proclaimed in 1939) to deploring it again after Hitler invaded Russia in 1941.  This, of course, was not the way any other U.S. political party was organized or behaved.

            This was not to say that everyone in CPUSA or sympathetic to it took orders from Moscow.  CPUSA also had the character of being a true American political party.  Many idealistic workers and intellectuals joined it in the 30s and 40s simply because of its critique of real flaws in a capitalist society, and participated exactly as participants in any other party would, or at least they tried to.

            But that was only the beginning of the peculiarities.  Many of the Communists were covert.  They pretended not to be Communists, the better to attempt secret takeovers of labor unions, other political groups, and parts of the government.  Some went further than that, engaging in outright espionage.  The nation’s nuclear secrets were largely shipped to the Soviet Union by home-grown Communist spies, enabling Stalin to develop the bomb a decade earlier than he probably would have done.  In short, by design, CPUSA’s activities and influence were kept hard to gauge, and many labor leaders, politicians, and civil servants who were ostensibly playing by the same political rules as the rest of us were in fact part of a monolithic conspiracy to fix the game in ways favoring a foreign power that had become our foe.

            CPUSA’s official doctrine was also problematical.  Preaching the rottenness of a capitalist society was clearly a legitimate effort to “change the mind of the country” in Justice Holmes’ phrase from his Abrams dissent, discussed last time.  Preaching a violent revolution against a capitalist society — and many Communist writings seemed to do so — was not so clearly within bounds.

            In a brilliant 1950 essay, Heresy Yes, Conspiracy No, political philosopher Sidney Hook put his finger on the problem CPUSA posed.  He defined a heresy as a “set of unpopular ideas or opinions on matters of grave concern to the community,” and he maintained that openness to heresy was “an essential element of a liberal society.”  (This was essentially the perception that, as discussed last time, Justice Holmes had come to over the summer of 1919 in between the Schenck and Abrams decisions.)  Communist ideas, Hook said, were heresies, which should be studied and evaluated, and which posed little danger “where they are freely and openly expressed.” 

            But the Communist movement, by contrast, was a “conspiracy, [i.e.] a secret or underground movement which seeks to attain its ends not by normal political or educational processes but by playing outside the rules of the game.”  And Hook noted that conspiracies “ruthlessly destroy all heretics and dissenters.”  (The Stalinist purges, which CPUSA cadres loyally defended, served as proof of this.)  Hence, Hook reasoned, “a conspiracy cannot be tolerated … in a liberal society.”

            But if a society chooses not to tolerate a conspiracy that has wrapped itself in a heretical political party and a heretical public political philosophy, then how is the society to fight back other than by purging the heretics?  Hook thus concluded that purging the heretics was the way to go.  In his view, association by way of membership in CPUSA “is not innocent … but is a form of active co-operation and collaboration” in the conspiracy.

            By the time of Hook’s essay, the program of purging heretics in order (allegedly) to make the world safe for heresy had already been under way for some time. On March 22, 1947, President Truman issued Executive Order 9835, which established a loyalty review board system for federal employees.  It could be argued Truman viewed this as a distasteful political necessity.  The nation, just emerged from the nightmare of the Second World War, suddenly found that Stalin was taking over Poland, that there were Communists at high levels in our State Department who had been plundering confidential documents, and that the Democratic administration had been covering up what it had found out about those thefts.  Separately the nation was waking up to the leakage of nuclear secrets to the Soviet Union.  The integrity of our government had been compromised to an unknown degree, and the Republicans were using that uncharted weakness as a huge talking point.  Politically speaking, Truman surely had to do something.

            Order 9835 authorized the Civil Service Commission to investigate the “loyalty” of all persons entering U.S. executive service, and directed the head of each government agency to investigate charges of disloyalty within his or her department.  Because the Russian-controlled infiltrators at whom the program was aimed would be expected to deny their Russian-directed status, the Commission and the loyalty boards within the agencies were directed to consider “activities and associations of an applicant or employee.”  In other words, to consider Communist affiliation, Communism becoming the proxy of enemy agent status (though many Communists would never have dreamt of betraying the U.S.).

            And since Communists, like Russian agents, frequently denied their party affiliation, proxies had to be used for that too, in the form of affiliation with any organization designated by the Attorney General as “subversive.”  The Attorney General began his List of Subversive Organizations (known as AGLOSO) in 1947 with a list of 93 organizations.  But, as historian Howard Zinn has noted: “By 1954, there were hundreds of groups on this list, including, besides the Communist party and the Ku Klux Klan, the Chopin Cultural Center, the Cervantes Fraternal Society, the Committee for the Negro in the Arts, the Committee for the Protection of the Bill of Rights, the League of American Writers, the Nature Friends of America, People’s Drama, the Washington Bookshop Association, and the Yugoslav Seaman’s Club.”   AGLOSO was compiled without due care in establishing the actual subversiveness of the organizations listed, was full of defunct organizations, and was never up-to-date.  Though constitutionally challenged from time to time, AGLOSO held on into the 1970s, and was used (often in combination with demands for loyalty oaths) as a basis for denying not only government employment but passports, membership in the bar, and of course good repute.

            But the loyalty boards were required to go further still, since a disloyal government employee might not provably hold a party card or have joined a supposedly telltale front organization.  So, people’s very thinking also had to be used as a proxy for proof of their disloyalty.  Investigators looked at speaking engagements, magazine subscriptions, and reading matter of the employees cast under the microscope. While investigators were particularly directed to the factor which rendered Communism unacceptable as a philosophy, i.e. the advocacy of violent or otherwise unconstitutional overthrow of the government, the thoughts that could get one in trouble went far beyond advocacy of violent or unconstitutional overthrow of the U.S. government.

            For instance, in 1954, my own father was purged from the State Department (he had been the economic attaché in the U.S. Embassies in London and Vienna, focusing on postwar reconstruction) for reasons that were never made explicit, on the testimony on witnesses never identified to him.  But it appeared that what had got him into trouble was his having delivered a speech favoring world government, and having been born into a family that featured a Communist cousin or two.  Someone at the State Department was uncomfortable with the way he thought or with his family connections, and that was really all that was needed.  His case was typical. Groupcrime (membership in the Party or an alleged front) had become a proxy for disloyalty, and thoughtcrime (advocating or even thinking not only revolutionary but also merely progressive ideas) had become a proxy for groupcrime.  And you could be guilty, or at least get yourself marked for purging, even by family association.

            In his signing statement on 9835, Truman emphasized that he intended the burden of proof to rest with the government, and that he was not setting up “‘kangaroo’ courts.”  In keeping with this promise, the standard of proof was “reasonable grounds.”  And yet, even early on, that was often not the way the loyalty tribunals really worked.  For one thing, as noted, the agency inquisitors were not required to identify their informers, making a defense frequently impossible. For another, Truman changed the standard of proof in 1951, under Executive Order 10241, which substituted simple reasonable doubt as to the employee’s loyalties as a reason for nonhire or termination.  So all that needed to happen to lose you your job was for some nameless accuser to tell the authorities something that made your loyalty suspect.  The rationale, of course, was that we were at war, and national security was more important than fairness in individual cases (an argument with a surprisingly modern ring).  And in any case, there was no right to government employment mandating that denying such employment be fair.

            There seems not to have been a Supreme Court test case of the constitutionality of such a program.  In the case that served as the next best thing, the D.C. Circuit’s Bailey v. Richardson, 182 F.2d 46 (1950), Judge E. Barrett Prettyman concluded that while the procedures of the loyalty panels did not comport with the demands of due process in trials, they were not trials, but only administrative proceedings to which due process did not apply.  The Supreme Court, with Justice Tom Clark recused, split evenly and thus affirmed.  341 U.S. 918 (1951).  (This holding was not overturned until 1972, in Board of Regents v. Roth, 408 U.S. 564.) 

            Reportedly, three million government employees were investigated under the loyalty programs, and thousands lost their jobs, especially between 1947 and 1951.   The repetitive and Kafkaesque ordeal of those employees is typified in Service v. Dulles, 354 U.S. 363 (1957), culminating the struggles of a Foreign Service employee whose career had become damaged goods when he leaked State Department documents to a Communist-affiliated publication, Amerasia.  It was widely understood that Service committed the leaks not to support Communism, but instead to sound the alarm about the corruption and instability amongst the Nationalist Chinese.  But Service kept being investigated for disloyalty and cleared and investigated again.  Eventually, even though cleared, he was fired anyhow.  Another case that conveys the flavor is Peters v. Hobby, 349 U.S. 331 (1955), concerning the efforts of an oft-investigated Yale professor to continue serving as a consultant to the Public Health Service.  The identity of an important witness against him was not even known to the Loyalty Review Board.

            Unlike some, including my father, Service and Peters were reinstated by the Supreme Court.  But in none of the cases did the Court question the constitutionality of 9835.  The loyalty program remained in force, although much less frequently used as time went on, until 1971, when, ironically, it was revoked by that champion anticommunist, Richard Nixon.   Nixon also revoked the Attorney General’s List portion of the order in 1974. 

            Of course the pursuit of thoughtcrimes and groupcrimes to defend us against the Communist Cold War against us did not stop at government employee loyalty programs.  Next time we shall consider the laws that criminalized domestic Communism and the Congressional witch hunts.

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies: A Series: Part XVII: Wilson’s Gag

            It is not always an easy to distinguish political speech and association that the First Amendment protects from treasonous utterances and conspiracies.  The core value of the First Amendment is like the phrase psychological testers sometimes use: There are no right or wrong answers.  You can advocate and organize to achieve anything.  And yet, does this mean that all speech about our government and our fellow citizens — and all forms of organization to teach and implement these views — are equally protected?  Does this include speech and concerted action hostile to our very form of government and our fellow citizens?  It seems clear that there must be some limits.

            Sometimes the limits are obvious.  The First Amendment would not, for instance, protect armed insurrection nor service in the armed forces of countries with which our nation was at war.  But these are extreme cases, and that makes them easy.  The harder ones have to do with activities that look more like conventional politics.  In times of war the activities of political parties can threaten or thwart a war effort.  Where a party advocates in favor of the nation’s foe, as much of the Democratic party did during the Civil War, it is at least a debatable question whether that advocacy is protected politics or treason.  And what if a legitimate political party harbors individuals who, inspired by its advocacy in favor of, say, peace with a national enemy, cross the line into insurrection as John Merryman of Maryland may have done when, as we saw last time,  he helped prepare to disable railroad bridges essential to Union troop movements and commerce?  If a political party teaches that our nation’s war practices are evil, and that persons of conscience should not comply with them, thus potentially impeding the war effort, should the First Amendment ward off efforts to suppress speech?  Or that party?

            The last question in particular was repeatedly presented in the courts and in the court of public opinion during World War I.  First, a two-sided reality check.  Our participation in World War I was probably unnecessary, and it was certainly sold to us with lies.  The historians’ consensus is that we really entered the war to preserve our markets among the Allied powers, and to prevent the possible collapse of the international financial system.   The public relations campaign waged by Woodrow Wilson’s White House, however, stressed that we were seeking to “make the world safe for democracy.”  Given that our allies’ empires disenfranchised a hefty percentage of mankind, this was at best a selective aspiration.  Clearly we were not seeking to make the world safe for democracy in India or Algeria, for example.  Contradicting lies like these and advocating policies based on the truth was legitimate political speech, or at least would have been in normal times.

            Another reality was that even before German U-boats sank the Lusitania and America went to war, the ruling classes were having mixed feelings about the kinds of people who most vociferously spoke out against the government and the war.  We had welcomed to our cities large numbers of mostly Jewish Russian immigrants imbued with the Socialist and anarchist ideals fermenting in their homeland, and our Christian capitalist and agrarian nation wasn’t thrilled by their look or sound.  Separately, we had welcomed so many Germans that they comprised our largest immigrant group, and huge numbers of Irish who had had their fill of England’s denial of democracy on their soil.  And Wilson was very happy to stimulate bigotry against them all.

            This is Wilson, writing to Congress a year and a half before we entered the war: “The gravest threats against our national peace and safety have been uttered within our own borders.  There are citizens of the United States, I blush to admit, born under other flags but welcomed by our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life.” 

            On the other side of the equation, some of the newcomers really were an effective impediment to the draft, which, if one concedes its constitutionality, was a legitimate part of the war effort.  As pointed out by Peter Irons in his book War Powers (2005), there really was a national epidemic of draft resistance in 1917.  The Socialists and anarchists, together with the International Workers of the World (aka the Wobblies), were in the vanguard of that resistance, especially in their writings and speeches.

            To combat the draft resisters, the Wilson administration and the Congress passed an Espionage Act that prescribed sentences of up to twenty years for anyone “who shall willfully cause or attempt to cause … refusal of duty in the military or naval forces of the United States.”  It similarly punished anyone who “shall willfully utter, print, write, or publish any disloyal … language about the form of government of the United States or … any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies, or shall urge … any curtailment of production in this country of any … things… necessary or essential to the prosecution of the war…”   Broadly construed, this statute would criminalize all expressions of political dissent concerning the war — or, for that matter, Socialist criticism of the capitalist economy and the nation’s purportedly republican form of government.

            And there were numerous horror stories about how it was used for just such purposes.  To mention but two, Robert Goldstein was imprisoned for making a patriotic movie about the Revolutionary War, in which, unsurprisingly, the British were depicted as committing atrocities.  As the British were now our allies, this exposure of our former enemies to public disapproval was held to violate the Espionage Act.  258 F. 908 (9^th Cir. 1919).  Rose Pastor Stokes, editor of a Jewish socialist publication, sent a letter to the editor of the Kansas City Star in which she stated: “No government which is for the profiteers can also be for the people, and I am for the people, while the government is for the profiteers.”  For this she received ten years under the Espionage Act, though the conviction was reversed after the war was safely over.  264 F. 18 (8^th Cir. 1920).

            Under contemporary First Amendment analysis, these were easy cases.  Any criticism involved was purely political, and the criminal penalties were in hindsight clearly unconstitutional.  It was when Socialists spoke out against the draft and the armaments industry that the harder Espionage Act cases were presented.  The Allies’ war strategy desperately depended upon the U.S. quickly fielding large armies to replace the exhausted British and French soldiery, and despite the massive propaganda campaigns of the government, military recruitment had fallen far below targets.  The munitions factories were required to keep France and England from collapse, and arm our own gathering forces – not to mention keeping the financiers and the princes of industry who controlled the Wilson administration in yachts.  So there was arguably a strong national security interest at stake, as well as the partisan interests of the politicians who had led us into the war (and the mercantile interests for which they fronted).

            Moreover, military theory of the time, heavily influenced by theorist Carl von Clausewitz, accorded an almost mystical significance to the concept of “morale.”[Comment4]   It was thought to be the military equivalent of corporate goodwill, a quantifiable if intangible asset which could be damaged in ways that would have a direct effect upon military campaigns.  Hence damaging national morale could be seen as the equivalent in danger and impact of an armed attack on our troops.

            At what point, if any, did clearly political speech also encroach upon national security, as conceived in this fashion?  The resolution of that issue was largely a story of Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis.  

            The first case of significance was that of Charles J. Schenck, a Socialist Party official who was involved in the publication of a leaflet attacking the draft as a violation of the 13^th Amendment, and urged voters to petition Congress to repeal it.  The leaflet also denounced the war.  He received a six-month sentence under the Espionage Act.  The war was over by the time his case came before the Supreme Court.  It fell to Justice Holmes on March 3, 1919, to explain why the Court was upholding the sentence. 

            He allowed that “in many places and in ordinary times the defendants … would have been within their constitutional rights.”  In other words, in peacetime, these criticisms of the laws and policies of the government would have been mere party politics, protected by the First Amendment.  However, Holmes went on, the “the character of every act depends upon the circumstances in which it is done.”  And then he articulated what he viewed as the applicable test when the circumstance was war: “whether the words used … are of such a nature as to create a clear and present danger” of obstructing the war effort.  And he added that if the “tendency and the intent” behind political speech were to obstruct military recruitment (even absent proof that the recruitment had been successfully hindered by even one conscription or enlistment) then a clear and present danger to the war effort would be proved.  249 U.S. 47.

            Announced the same day were the cases of Jacob Frohwerk, editor of a German-language Missouri newspaper, who expressed views similar to those of Schenck, and added a deeper critique of the war’s objective: “that a few men and corporations might amass unprecedented fortunes,”sentenced to ten years, and 249 U.S. 204, and Eugene Debs, Socialist organizer.  249 U.S. 211.  Debs had given a speech inciting sympathy for others who had been imprisoned for Espionage Act violations, and he was sentenced to ten years as well.

            Over the following summer, however, Holmes had a number of encounters with articulate critics, including Learned Hand, then a U.S. District Judge, and scholars Ernst Freund and Zechariah Chaffee.  That, and tumultuous riots and repressive governmental responses, also led Holmes to rethink the matter. He saw that there had to be a role for dissent, war or no war.

            The rethinking was seen in Abrams v. U.S., 250 U.S. 616, announced November 10.  Abrams had published Bolshevik propaganda denouncing the war effort, insofar as Allied policy favored the restoration of the now-fallen czarist regime and impeded the nascent Communist takeover in Russia, in opposition to which Abrams had called for a general strike.  For this he was sentenced to 20 years in prison.  The majority of the Court viewed this talk as being clearly intended to hinder the war effort, and thus a clear and present danger under Schenck. 

            But Holmes was no longer in the majority.  Writing in dissent with Justice Brandeis, he now attempted to turn his own “clear and present danger” test upside down, and change it into a protection of dissenting speech and association.  He now recognized that, even in wartime, “Congress certainly cannot forbid all effort to change the mind of the country.”  And while Abrams might have entertained an intent to persuade workers to take concerted action that might inconvenience the war effort, intent alone was no longer enough to constitute a clear and present danger.  There had to be a reasonable likelihood of success: “[N]obody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger…”

            Brandeis finished the process eight years later, concurring in Whitney v. California, 274 U.S. 357 (1927), invoking the Founding Fathers as great proponents of freedom of speech, and justifying this freedom as a necessary component of a healthy political system.  As to “clear and present danger,” Brandies wrote: “Even advocacy [of law-breaking] is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.”  That concurrence was the template for future Court rulings in the area.

            The World War I Espionage Act prosecutions were all upheld.  But, but like the Sedition Act prosecutions sustained under John Adams, they were political failures.  Discomfort with the efforts of President Wilson to gag and punish dissent played a major role in the election of Warren Harding in 1920.  Harding stated that “too much has been made of Bolshevism in America.” And early in his presidency Harding pardoned Eugene Debs and welcomed him to the White House.  His successor Calvin Coolidge freed all remaining Espionage Act prisoners in 1923.[Comment7]   And by the time Franklin Roosevelt led this nation into World War II, his ideological centerpiece was the concept of the Four Freedoms that democratic governments foster, and the first of these was freedom of speech and expression  – a concept which in wartime Wilson would have found not merely ludicrous but subversive.

            If, by 1920, governmental invocation of war power to gag political speech was largely dead, that power was still available to suppress groupcrime – membership in politically suspect groups.  That will be the subject next time.

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies: A Series: Part XVI: Speechcrimes And Groupcrimes

            It is a truth universally acknowledged that a politician will take every possible measure to avoid criticism, blame or dissent, and a politician potent enough to criminalize dissent will do so.  In this country, the First Amendment is nowadays extremely inconvenient to politicians trying to squelch even wartime criticism.  But it took a while for the First Amendment to reach that point.  War raises a countervailing constitutional principle, national security, which our governments and in particular our presidents are obligated to provide.  Striking a balance between political free speech and national defense, both fostered by the Constitution, has often worked out in favor of politicians motivated by little more than a desire to gag their critics.

            In our nation’s first century, both the main tactics of the executive to silence criticism as war crime were tried.  John Adams and Abraham Lincoln both directly prosecuted dissenting speech (establishing what George Orwell, who invented “thoughtcrime,” might have called “speechcrime”), and Lincoln also sought to criminalize the act of belonging to groups that dissented (hence my coinage of “groupcrime”).  And during fights over these spurious crimes, the First Amendment was barely thought of.

            By July 7, 1798, French privateers raiding U.S. shipping and French resistance to U.S. neutrality in the Franco-British conflicts had caused the U.S. to abrogate treaties with France and to make appropriations for naval warfare.   The U.S. was in undeclared war.  On July 14, the Congress passed the Sedition Act.  That law provided, in part, that “if any person shall write, print, utter or publish … any false, scandalous and malicious writing against the government … with intent to defame the said government … or to bring them … into contempt or disrepute; or to excite against them the hatred of the good people of the United States … or to resist, [or] oppose any … law,” the offender could be fined two thousand dollars and/or imprisoned for two years.  Since the measure contained a sunset provision (expiration was set for March 3, 1801), it might have seemed narrowly tailored to the war at hand.

            That this law also had partisan political aims was clear, however, from the enumeration of the parties it protected from such criminal speech: “either house of the Congress of the United States, or the President of the United States.”  By no coincidence at all, the Federalist John Adams was the president and Federalists controlled the Congress.  The Vice President, not shielded by the law, was Jefferson, a Republican.[Comment2]   In other words, it was sedition for Jefferson’s followers to criticize Adams, but not for Adams’ followers to criticize Jefferson.  Also, the sunset date was not actually the date the Quasi-War with France (as it came to be known) was expected to end (it actually ended in 1800).   The sunset date was simply the last day of the Adams administration.  Hence Congress was assuring that if the tables were turned and the Republicans took over (as in fact occurred), the Republicans could not criminally prosecute the Federalists for the kind of speech for which the Federalists could prosecute the Republicans.

            Using this supposed bit of wartime security, the Federalists did in fact prosecute political critics. Vermont Congressman Matthew Lyon published comments in an opposition newspaper implying (albeit in a lengthy subjunctive phrase and not as an affirmative statement) that in the Adams administration “every consideration of the public welfare [is] swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish, adulation, and selfish avarice.”  He was fined a thousand dollars and imprisoned for four months.  15 F.Cas. 1183 (D. Vt. 1798).  Thomas Cooper, a Republican, published a complaint about the infant nation’s borrowing money to shoulder the expense of its new permanent navy and its new standing army, as well as certain foreign embassies, among other things.  He was fined four hundred dollars and imprisoned for six months.  25 F.Cas. 631 (Cir. Ct. D.Pa. 1800).  James Thompson Callender published a whole book attacking Adams, without, so far as appears in the report of the case, 25 F.Cas. 239 (Cir. Ct. D. Va. 1800), saying anything factually demonstrably wrong, but expressing vitriolic hostility toward him.  Callender was fined two hundred dollars and imprisoned for nine months.

            It is surprising to modern eyes reading the cited reports to see how little discussion there was of the First Amendment.  It appears that Lyons and Callender attempted to raise the issue, but the judges would not permit them to argue constitutionality to the juries, nor would the judges otherwise engage the issue themselves.

            Though barely tested against the First Amendment, and though not repealed until its sunset took effect, the Sedition Act was a political failure.  When he came to power, Jefferson offered pardons and honors to Sedition Act convicts (Cooper refused his).  Justice Samuel Chase’s conduct of the Sedition Act trials of Cooper and of Callender was part of the 1805 impeachment case against him (he barely escaped being removed).  And the Federalists were swept from power at the ballot box, never to return, largely on the strength of public revulsion against the Sedition Act.[Comment4] 

            Lincoln, our Civil War president, refused to abide by the verdict of history on the Sedition Act.  He, together with his generals and the Republican party, vigorously attacked dissent as wartime treason.  Three of the best-known cases involved John Merryman, a Maryland editor, and Cornelius Vallandigham, and Lambin Milligan, Ohio and Indiana politicians respectively.

            On the morning of May 25, 1861, Merryman, a Southern sympathizer, was seized by Union troops at his home in Cockeysville, and jailed at Fort McHenry without charge or access to habeas corpus.  He was not alone for long. 2,000 other suspected Confederate sympathizers were also soon held at Fort McHenry.  As noted by journalist Carl Schoettler,  these included the mayor of Baltimore, the police chief, the entire Board of Police, a former governor of Maryland, and 30 members of the legislature.  Nine newspapers were suppressed into the bargain.  Although Chief Justice Roger Taney, ruling as a Circuit Judge, found the detention unlawful, 17 F.Cas. 144 (Cir. Ct. D.Md. 1961), Lincoln simply ignored him.  The military officials holding Merryman specifically noted, in defying Taney, that “the prisoner has made often and unreserved declarations of his … avowed hostility against the government.”  In other words, dissent and nothing else was the very “crime” for which Merryman was being held.  (It is not unlikely that Merryman, a militia captain, had been involved in technically lawful but inherently rebellious preparations, as per the order of Maryland’s governor to the militia, to disable railroad bridges into Baltimore.  But this was not cited to Taney as a justification for the military’s defiance, and probably did not factor into the decision to arrest Merryman.)

            Without a doubt, the Union’s situation was parlous, and it is quite possible that had Lincoln not unconstitutionally seized the dissenters, they might thereafter have translated their sentiments into armed action, Maryland might in consequence have slipped away, Washington might have become militarily untenable, and the North might in conclusion have lost the war.  Whether any of this justified Lincoln’s lawlessness is not an easily answerable question.

            The phased-in military draft Lincoln and Congress felt necessary to fight the war provoked considerable dissent.  The first step Congress took was nationalizing the nearly defunct state militias,[Comment6]  and this provoked enough resistance (both consumer resistance – the draft bounties kept having to be raised –  and political resistance) that Lincoln, acting unilaterally, issued a September 24, 1862 proclamation.   It purported to suspend the writ of habeas corpus with respect to a certain class of persons, specifically those who sought to “hinder” the draft, probably draft evaders and resisters (the big anti-draft riots did not occur until the following year).  But it also suspended the writ with respect to those “guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States.”  On top of that, Lincoln purported to render such persons “subject to martial law and liable to trial and punishment by Courts Martial or Military Commission.”  In effect, Lincoln was using executive war powers to create new categories of crime and establish an unreviewable parallel judiciary to punish them.  And behaviors subject to sanction by that parallel judiciary absolutely included political dissent.

            Congressman Vallandigham was tried under this proclamation.  As the Supreme Court summarized in denying certiorari to Vallandigham, 68 U.S. 243 (1863), that Congressman had defied a military order issued by General Ambrose Burnside against “declaring sympathy for the enemy.”  He was tried and convicted by military commission for giving a speech in which he denounced the Civil War: “a wicked, cruel, and unnecessary war, one not waged for the preservation of the Union, but for the purpose of crushing out liberty and to erect a despotism.”  In the subsequent habeas proceeding, General Burnside expressed his view of politics and political dissent in wartime: there should be no political names or epithets:  “The simple names of patriot and traitor are comprehensive enough.”  In other words, at least in wartime, political dissent or even dialogue equals treason.  Eventually Lincoln had Vallandigham deported to the South.  Lincoln privately expressed to Burnside a regret that Burnside had taken these steps, but that Lincoln and his cabinet felt they needed to support Burnside since he had acted. 

            After witnessing such challenges to the legitimacy of the Lincoln expedient of punishing speechcrimes via unreviewable military commissions, Congress purported to give him a fig leaf: a statute authorizing him to suspend habeas.  But the statute did not authorize trial by military commission, at least not in Union states.  Instead, the Secretary of State and the Secretary of War were directed to  identify detainees, and to give the detainees an opportunity to prove their loyalty judicially.  Lincoln’s armies simply ignored Congressional efforts to limit their power in this fashion and went right on holding trials by military commission and defying court orders.

            One of the victims of this military defiance was Lambdin Milligan, sentenced to death by military commission for what scholar Elisheva Coleman has called “walk[ing] a fine line between dissent and disloyalty.” (I draw heavily on Coleman below.) The essence of the crime alleged against Milligan was that he had been a member of the Order of the Sons of Liberty, a secret society whose members certainly approved of slavery and had sympathies with the South.  Northern-sympathizing secret societies were equally prevalent in Indiana of the time.  The former drew their membership exclusively from Democrats, and the latter exclusively from Republicans.  Thus it was hard to disentangle partisanship from what else animated Milligan’s accusers.

            Amongst the Order, there apparently had been a genuine plot and genuine plotters, though by no means encompassing all of its members, to rise up against the Union in conjunction with a Confederate invasion.  And there was little serious effort to determine whether Milligan had been one of the plotters himself.  The finding of his guilt seems to have stemmed from his having given a speech showing his sympathy with the Democratic party and with the aspirations of the Order, and not from any direct evidence of his having participated in planning an uprising.  This in turn made him a part of the “conspiracy” that the whole Order constituted; and hence any treasonous activities by other members of the Order could be legally ascribed to Milligan.  In other words, to Milligan’s speechcrime was added what might be called groupcrime: mere association with others who might have committed treason.

            Ex Parte Milligan, 71 U.S. 2 (1866), technically did not turn on the crimes but only on the mechanisms of trial.  Trial by military commission where the courts were available was held unconstitutional by the majority, and statutorily unauthorized by the concurrence.  The case is now principally remembered for Justice Davis’ ringing declamation: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”  Notwithstanding, trials by Reconstruction military commission never stopped after Milligan – probably because the holding never precluded such tribunals in the South, whence all the commissions had gone.

            However, for present purposes, the question is where this left the criminalization of dissent.  Scholar Mark Neeley[Comment11]  maintains that cases like Milligan’s, where the only provable offense was political speech, were actually few in number, and that the most common crimes alleged against the estimated 13,500 civilian arrestees during the Civil War were on the order of bridge-burning and cutting of telegraph lines – treasonous acts, not mere dissenting words.  But there was still no reckoning with the First Amendment, which is concerned with words.

            As we shall see next time, the failure of the Court even to weigh the limits placed on the Executive by the First Amendment left the door wide open to further speechcrime and groupcrime prosecutions when war next occurred.  And when war did come, President Wilson walked unhesitatingly through that open door.

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies: A Series

Part 15: Weapons Of Mutual Deception

Published in the Maryland Daily Record June 30, 2006 

            During the waning days of the Soviet Union, an era of goldbricking employees and a valueless ruble, the rueful motto of the Socialist laborer was: “We pretend to work and they pretend to pay us.”  The situation with Iraq’s supposed weapons of mass destruction was roughly the same: Saddam pretended to have weapons of mass destruction and we pretended to believe him.

            Saddam’s pretense drew inspiration from three critical formative experiences (as Michael R. Gordon and Gen. Bernard E. Trainor tell us in their recent war history, Cobra II).  In the Iranian war from 1980 to 1988, Saddam had used chemical weapons in huge quantities, and avoided being overrun by Iranian “human waves”; he partly credited with the “save” the over 100,000 chemical rounds he had used. When the Kurds rose up against Saddam in 1988, he had quelled them by killing 5000 of them at Kalabjah, using mustard gas, sarin, VX, and tabun.  Kurdistan remained under his control. During the Gulf War, the U.S.-led coalition did not overthrow him or occupy Baghdad; he chalked this up to U.S. reluctance to expose its troops to the chemical weapons he was thought to possess.  His record of willingness to use such armaments against Iran and against the Kurds had blunted U.S. resolve, he believed. 

            After the Gulf War, Saddam had been forced to dismantle his WMD programs (mostly in 1991, with some dual-use programs surviving, however, until 1995).  But Saddam regarded it as hazardous to his health for the world to be certain he had actually complied.  Thus for a decade he played a cat-and-mouse game with UNSCOM weapons inspectors, featuring incomplete disclosures, deliberately implausible denials, suspicious defiance of inspections, and military and security activities deliberately designed to look as if they were protecting WMD secrets.  You can get an excellent flavor of this in weapons inspector Scott Ritter’s memoir, Iraq Confidential (2005).   Ritter provides an amusing account, for instance, of the way the Mukhabarat, the Iraqi secret police, who just wanted the inspectors gone, were totally frustrated with the Iraqi WMD scientists’ failures to provide straightforward explanations that would have convinced the inspectors of the truth.[Comment2]   But the Mukhabarat did not control the scientists; Saddam’s Special Security Organization did, and it had a contrary mission.

            Saddam avoided at least some sanctions by pleading compliance, and by making it impossible to prove he had not complied; he avoided invasion and insurrection (at least in his own mind) by making it impossible to prove he had complied.  Saddam’s downfall was that the world was full of people who wanted to believe or at least to convince others that there still was an Iraqi WMD program. The widespread belief in 2003 that Saddam had WMDs was not owing to Saddam’s being an outstandingly successful liar; there were just far more determined and successful liars on the loose than he – and they were telling the same lie he was.

            The deceptions went back to the Clinton administration.  Inspectors from the United Nations Special Commission (UNSCOM) found that, as they came closer to establishing the destruction and non-replacement of the WMDs, the CIA became actively involved in subverting and discrediting them.  The CIA was trying to orchestrate a coup, and nothing that made Saddam look less menacing was to their liking.  To that end, according to Ritter, the CIA endangered British signals intelligence operatives in Iraq, repeatedly stiffed UNSCOM on promised technical cooperation, and provided dishonest reports, supposedly for UNSCOM’s benefit, purportedly digesting information UNSCOM had gathered.  Most egregiously, the CIA hid a signals spying operation of its own within UNSCOM without seeking permission (which would of course have been denied if asked for).  The operation was deliberately so situated that if the cover were blown, it would look like UNSCOM espionage, and UNSCOM, not the CIA, would get the blame.

            The coup against Saddam was set for early 1996.  Its plan was to use the failure of Iraq’s regime to cooperate fully with UNSCOM as a pretext for an attack coordinated with the coup.  Unfortunately for the CIA, the Mukhabarat had penetrated the CIA’s network, and shortly before the coup was set to start, all CIA assets (some 800 individuals) associated with plot were all arrested, mostly tortured and killed.   Thereafter for a time, the Clinton administration’s objective was simply to keep sanctions in place.  But even those sanctions would be abandoned if Saddam were cleared of having a WMD program.  Hence the UNSCOM process had to fail, and U.S. policy was dedicated to its failure.

            Again, Saddam himself played right into Washington’s strategy.  In the late 1990s he was in fact perpetrating a sort of Mesopotamian Watergate: a coverup that was worse in its impact than the revelation of the thing concealed would have been.  All he sought to conceal in the late 90s was the history of the early 90s coverup.  But his timing was impeccably bad.  This was the very point at which UNSCOM started aiming its inspections directly at the earlier coverup.   So there was more stonewalling, more frustrated inspections, and finally a temporary termination of Saddam’s cooperation with the inspectors altogether.  The result could not have proven worse for Saddam, because his actions left open a slim possibility that the weapons program actually demolished in 1991 and 1995 still existed.

            The Clinton team did return to Plan A briefly.  In early 1998, Secretary of State Madeline Albright and UN Ambassador Bill Richardson quite candidly involved Richard Butler, the head of the inspections, in a plan to use Iraqi failure to cooperate with the inspections as a trigger for an heavy attack by cruise missiles and bombers.  The Iraqis (perhaps cued by the Mukhabarat, which had by this time completely penetrated UNSCOM communications) foiled that by cooperating at the last minute.  Thereafter, both sides returned to form, the Americans pretending to support UNSCOM and the Iraqis defying it.

            And then came the Bush Administration, ushering in a group of zealots determined to manufacture reasons to attack Iraq.  The CIA knew full well that the UNSCOM intelligence made highly unlikely the continued existence of a WMD program in Iraq.  But the CIA bent in the prevailing political winds.  Few things make sadder reading than the account in New York Times correspondent James Risen’s State of War (2006) of the way George Tenet, then the Director of Central Intelligence, was beaten down by Secretary of Defense Donald Rumsfeld.

            Two examples, both described in Risen’s book and each centered on a particular informer, will need to stand for the whole of the resulting perversion of intelligence analysis.  One was an Iraqi defector in the hands of the Germans, appropriately code-named Curveball,  who told tales of an Iraqi bioweapons program.  His uncorroborated stories were the fundamental source of the CIA’s case that there was an Iraqi bioweapons program.  The Germans would not provide the CIA direct access to Curveball, and there was no way to question him.  The Germans themselves told the CIA unofficially that Curveball was “crazy,” and officially they warned that he was unreliable.  Top CIA managers were aware of the warnings, and aware that without direct access to Curveball, they had no way to evaluate his intelligence directly.  The head of the European Division of the CIA’s Directorate of Operations tried to assure that Curveball’s stories would not become part of Colin Powell’s February 2003 speech to the UN.  He thought he had secured Tenet’s agreement to keep it out of the speech.  But of course he Tenet did not live up to his word.

            Here is what Colin Powell told the UN on February 5, 2003, reportedly based entirely on Curveball’s unverified tall tales:

Let me take you inside that intelligence file and share with you what we know from eye witness accounts. We have firsthand descriptions of biological weapons factories on wheels and on rails. The trucks and train cars are easily moved and are designed to evade detection by inspectors. In a matter of months, they can produce a quantity of biological poison equal to the entire amount that Iraq claimed to have produced in the years prior to the Gulf War. 

We now know that this was utter fantasy.  The Germans, Curveball’s keepers, were appalled at the time.  Later, so was Powell, who was to call that speech “the lowest point in my life,”  and claimed he had never been warned about the questions raised about Curveball or the CIA’s lack of access to him.

            Saad Tawfiq  was Curveball’s opposite, a bona fide nuclear scientist who had been at the heart of the former Iraqi nuclear program, and who told the truth.  He knew that in early 1991 U.S. bombers had unknowingly destroyed the physical facilities upon which the program was built.  He had been involved in the coverup of the non-existence of the program, the coverup that had so enraged Scott Ritter and the UNSCOM teams.  As Risen recounts, Tawfiq’s sister, a U.S. citizen, was dispatched by the CIA to Baghdad in September 2002 to obtain confirmation that there was still a nuclear program.  Tawfiq was incredulous when she asked him.  He responded: “Where do they come up with these questions?  Don’t they know that there is no nuclear program?”  When she reported back Tawfiq’s flat denials, the CIA merely concluded in an obviously patronizing way that Tawfiq had lied to a credulous sister.  It turned out that Tawfiq was one of thirty Iraqi nuclear scientists who had been contacted by the CIA and who had all said the same thing.

            By contrast, the information the President (in his 2003 State of the Union address) relied on was primarily a few documents that purported to chronicle efforts by Iraq to purchase uranium in Niger.  These documents, we now know, were clumsy forgeries.  (The identities and motivations of the forgers are still a matter of debate.)   But Tawfiq, if the CIA had asked him, could have told them that Iraq had its own uranium deposits, and would have had no need to buy ore in Niger.   The CIA, as everyone now knows, sent former Ambassador Joseph Wilson to Niger to check out the story.  Wilson came back with clear evidence and analysis that established beyond doubt the falsehood of the documents.  The CIA believed Wilson, as did the Bureau of Intelligence and Research within the State Department.  Eric Alterman and Mark Green report that there was also a lesser-known trip to Niger in February 2002 by retired Marine General Carlton W. Fulford Jr. who came away convinced that the uranium supply was “secure” (insecurity being a necessary precondition to Saddam gaining access).  

            There is little doubt that the White House was aware that the intelligence community thought the documents to be bogus.  According to Nicholas Kristof of the New York Times, lower CIA officials so informed Vice President Cheney’s office and National Security Council staff members.[Comment11]  Dana Priest of the Washington Post reported in July 2003 the words of an unidentified “senior administration decision-maker” that “everyone knew” the documents “were not good.”  

            The International Atomic Energy Commission also quickly concluded that the documents were counterfeit and its head, Mohamed El-Baradei, so warned the UN Security Council on March 7, 2003,  two weeks before the U.S. began the invasion of Iraq for which it was citing the documents as a prime justification.

            In short, the Bush administration surely was not concerned by warnings that the intelligence might be wrong; it knew the intelligence was wrong.  This explains the otherwise somewhat puzzling treatment of the inspectors still in Iraq just before the invasion.  It invaded before they were finished, an unreasonable course if doubts persisted, but a reasonable one if motivated by a fear that the inspectors might soon give Saddam a clean bill of health.  After El-Baradei’s presentation, the administration had to know the WMD justification came with a rapidly approaching sell-by date.

            Later on, speaking from the Oval Office on July 14, 2003, Bush tried to revise history and say the inspectors were not even there, claiming Saddam had not let them in.   Historical revisionism was rife, anyway.  It is clear now, reading the statements of the Administration’s senior officials, that they did this primarily by wilfully failing to distinguish between facts that were current and facts that were 15 years old.

            For instance, Alterman and Green in The Book on Bush (2004), note that in the 2003 State of the Union, Bush declared Saddam had “biological weapons materials sufficient to produce over 25,000 liters of anthrax” and “the materials to produce as much as five hundred tons of sarin, mustard and VX nerve agent.”  And Powell, in his address to the UN, claimed Iraq had created “four tons” of VX.  In each case, the speaker neglected to mention that the Iraqis had claimed to have destroyed these agents under the UNSCOM inspection regime in 1991, and that the inspectors had largely verified the claims. 

            This deliberate chronological sleight-of-hand went on after the WMDs failed to emerge.  David Kay, head of the CIA’s 1400-person Iraq Survey Group, admitted to Congress in October 2003 that after six months of searching, there was evidence only of “the very most rudimentary” nuclear program.   Essentially, he told Congress that the program had been dormant since the early 1990s.  Bush characterized this report as somehow confirming that the program “continued even beyond the end of Operation Iraqi Freedom.” 

            Hence, through two administrations, Democratic and Republican, the US kept up the pretense of believing Saddam’s pretense of having WMDs.  Along with the “Global War on Terror” lies, already discussed, this formed two-thirds of the main justifications for the war.  The third justification, that Saddam was a bloodthirsty tyrant, of course was true, but not much of a casus belli standing by itself.  The lies were the active ingredient in the case for war.

Copyright (c) Jack L. B. Gohn 

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Ants

But that brings us back to what makes dealing with the deceased’s things so painful. Most of us aren’t important enough to rate a Monticello or Presidential library. Some dispersal is required. Nature abhors a big pile. And when that pile gets (at worst) trashed and (at best) distributed, we lose a little more of that union of the deceased and her stuff which in some mysterious way kept her a little more present to us during her lifetime. 

There is no alternative. When the picnickers leave the table of life, the ants must and will come. Ants are swift, ants are thorough, ants leave little behind. They are God’s recyclers. 

But this metaphor has a major flaw. Every ant is a picnicker as well. Each of us who carries off bits of Granny’s stuff already her own trove of stuff. We simply can’t preserve more than a fraction of the tangible personalty of our dearly departed without drowning in it. And that is where it really gets cruel. Triage is vital. Do we keep Granny’s unsorted photos in a box? If so, do we plan to label them so that Junior will have the faintest idea who’s who when he leads the next detail of ants in twenty or thirty years? When are we going to find the time for that? If not, why bother? Do we keep that wedding ring? Where? Do we label it? How about Grampa’s amateur paintings? All of them? Just the best? And then who’s going to throw the balance of them in the dumpster? Doesn’t that feel a bit like putting Grampa himself in the dumpster? And on and on and on. 

We want heirlooms, we want reminders, we want from time to time to walk the path our forbears trod, by reading their books, sitting in their chairs, listening to their records. But we also want to downsize so we can move into that retirement condo. It is very hard to reconcile these impulses. But we must. And when we do, the almost inevitable course is to scatter the bulk of our relatives’ possessions to the winds. We must do what the ants do, removing not only the crumbs but also the very memory of them. 

Mercutio puns, after receiving a mortal wound, that if we ask for him the next day, we shall find him a grave man. Wrong. We won’t find Mercutio at all, or much of anything that recognizably belonged to him. The body returns to the dust it is made of, and the possessions return to the stream of commerce and the trash cycle from whence they came. 

The actual ant workers who clean up behind actual picnics are comparatively fortunate. True, they live on average only six months. But as they carry away the crumbs and share them in their colonies, they feel no regret. And they know exactly what to do. In their highly organized way worked out over millions of generations, they have honed their task down so that there is no guesswork, no ambiguity, nothing but the task, which they undertake with silent efficiency. Everything goes, and when the job is done the ants sleep well. (Well, technically probably not; they lack eyelids, and most insect biology doesn’t seem to require sleep – but you get the idea.) 

We can only envy such clarity of purpose and planning, such lack of doubt and such dispassion. We are stuck with wondering, at the end of the day whether, had we not stuffed into that big plastic trash bag the old Christmas cards that Granny received, her grade school exams, her theater programs and her prayer books, we might be closer to not having lost her. And the answer is we would have kept her closer – at the cost of having too much old stuff to live our own lives with, not to mention having created an even bigger stack of stuff for the next generation to cope with. We owe it to the generations to come to do a reasonable triage ourselves. They will have to clean up after us; they should not have to clean up after the ones we survive as well. That’s our job, like it or not. 

The trash cycle is of a piece with the human cycle, when you think about it. We need to clear out Granny’s stuff. And, harder to admit but true, we need to clear out Granny. Paradoxically, death is vital. Without it, there would be no room in our society for newcomers, little room at the top, not enough wealth to go around. So at the end the funerals and the dealing with the stuff not only feel like but are in fact all one process. One incredibly sad, incredibly poignant, and utterly necessary process. The dead and their personalty, never much separate in life, must both be dispersed in death. And we are the ones who must do it.

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War Powers, War Lies: A Series

Part 14: Super Bowl

Published in the Maryland Daily Record May 26, 2006

Bob Dylan, It’s Alright, Ma (1965)

            As we have been discussing, the people who took us into Iraq told us a pack of lies.  They told themselves a pack of lies too.  Chief among these was that to topple Saddam would facilitate the War on Terror.  In the echo chamber of its pre-war deliberations, the Administration convinced itself that if you defeat the conventional armies defending a nation and you seize control of its assets and infrastructure, the terrorists who thrive in the shelter of that nation will naturally fall with it.  But such a belief was reckless.  There were too many good reasons (apart from the fact that Al Quaeda was not thriving in the shelter of Iraq) to know this desired outcome was unlikely.

            It was counterhistorical, for one thing.  History shows that conventional armies almost never defeat guerrillas.  And al Quaeda and its affiliates were nothing if not guerrillas.  History teaches, instead, that guerrilla movements are defeated, if at all, only by the emergence of a civil society in which the group from which the guerrillas are drawn is invested, and in whose institutions the potential guerrillas in that group can trust.  (Think of the painfully gradual standing down of the IRA and the Unionist paramilitaries in Northern Ireland, and the linkage to the development of civil institutions there.)  The Administration’s theorists held that Iraqi civil society would emerge in a heartbeat because we would be welcomed as liberators, democracy would spring up on command, and the new society would render the grievances of the Islamic terrorists obsolete — all under the watch of fewer than 200,000 allied troops. 

            As Tevye observed: “Sounds crazy, no?”   And there were voices telling the Administration it was crazy — that they couldn’t defeat terrorism this way.

            General Eric Shinseki, the Army Chief of Staff, appeared before the Senate Armed Service Committee in February 2003 and was asked about troop requirements for the upcoming attack.  He said that postwar Iraq would require “something on the order of several hundred thousand soldiers.”  He spoke with the experience and seasoning of 38 years in the military; his immediate previous tour of duty had been as the Commander of the NATO Stabilization Force in Bosnia.   And he was not even anticipating guerrilla war.  He explicitly stated he was talking only about “post-hostilities control over a piece of geography that’s fairly significant with the kinds of ethnic tensions that could lead to other problems. And so, it takes significant ground force presence to maintain safe and secure environment to ensure that the people are fed, that water is distributed, all the normal responsibilities that go along with administering a situation like this.” 

            As recounted in George Packer’s The Assassin’s Gate (2005),  however, Shinseki’s remarks prompted Paul Wolfowitz, a civilian with precisely no years of military experience and no peacekeeping experience either,  to appear before the House Budget Committee and pronounce that estimate “wildly off the mark” and “inconceivable.”   Then Shinseki himself was dealt with: he was humiliated by the naming of his successor when he still had a year in his term,  and the Secretary of the Army who had had the temerity to agree with him was fired.  (To be fair, there were also other reasons for both personnel actions.)  The notion that more boots on the ground were not needed to build the civil society necessary to render terrorism unappealing was one lie the Administration told itself..

            There was no nation-building plan.  The craziness of this was apparent to the professionals inside the government who are supposed to plan occupations.  As Packer recounts, based on lessons learned in peacekeeping operations of the 1990s, President Clinton had established an interagency working group to plan peacekeeping operations; Bush abolished it in February 2001.  The Rumsfeld Department of Defense ignored the State Department, which tried to plan.  It ignored its own Office of Stability and Peace Operations.  It even ignored the right-wing American Enterprise Institute, which tried to get involved in peacekeeping planning. 

            When the Defense Department’s own post-invasion proconsul, Jay Garner, tried to enter Iraq with his staff, known as the Office of Reconstruction and Humanitarian Assistance, he was held up two weeks in Kuwait – while the looting started.  The Department ignored its own Central Command and Joint Staff, which had drafted a war plan called “Desert Crossing.”  General Anthony Zinni, who had just retired, warned General Tommy Franks’ deputy commander that Centcom needed to “take a hard look” at Desert Crossing.  Zinni learned that its assumptions (i.e. that there would have to be infrastructure protection, political and economic planning, etc.) were deemed “too negative.”   The Administration had decided that everything would go well, and that planning for reestablishing civil society was a trap and a snare that might distract from the quick invasion, quick turnover to the Iraqis, and quick withdrawal – and would have no part of it.   The notion that a society without electricity and infrastructure would be unreceptive to terrorism was another lie the Administration told itself.

            It sounded crazy to de-Baathify the entire Iraqi government and to disband the Iraqi army,  as was ordered by Paul Bremer, Garner’s successor, on May 16 and 23, 2003,  respectively, thus simultaneously lobotomizing Iraq’s institutional memory, stripping it of key competencies, and creating a vast class of dispossessed individuals who were dangerous because of their competencies.  To use a piquant metaphor of President Lyndon Johnson,  all of the people who knew how to run the country were on the outside of the tent, pissing in.  The CIA Baghdad station chief warned in November 2003 that the policy had created a country bereft of trained leadership which was inviting to terrorists.  In December 2003, while visiting Washington, he was told he would not be returning to Baghdad.   The policy, and the growth of terrorism, continued.

            It sounded crazy to provoke the terrorists by invading Iraq at all.  Daniel Benjamin, a former NSC staffer, had warned in the New York Times in the summer of 2002 that such an invasion would prove bin Laden’s thesis: that the U.S. was at war with Islam.  But it did more than that: it played into bin Laden’s game plan.  The jihadis wanted us there.  Bin Laden said: “We recommend luring the enemy forces into a protracted, close, and exhausting fight, using the camouflaged defensive positions in plains, farms, mountains, and cities.  The enemy fears city and street wars most, a war in which the enemy expects grave human losses.”

            Let’s see: a power vacuum, an exposed position, and a Middle East full of terrorists eager to engage us.  Sounds crazy, no? 

            Oh, and then add atrocious behavior on the part of our troops.  Assure this by demanding that they substantiate lies – send the soldiers searching desperately for nonexistent weapons of mass destruction, and turn loose interrogators who can only earn their keep if they provide corroboration for the myth that Iraq and Al Quaeda were in league.  And stand back and watch what happens.  I want to quote at length from a young man from Falluja interviewed by Mark Danner in November 2003 — just when the CIA station chief wrote the worried memo that led to his ouster:

For Fallujans it is a shame to have foreigners break down their doors.  It is a shame for them to have foreigners stop and search their women.  It is a shame for the foreigners to put a bag over their heads, to make a man lie on the ground with your shoe on his neck.  This is a great shame, you understand?  This is a great shame for the whole tribe.  It is the duty of that man, and of that tribe, to get revenge on this soldier – to kill that man.  Their duty is to attack them, to wash the shame.  The shame is a stain, a dirty thing; they have to wash it.  No sleep – we cannot sleep until we have revenge.  They have to kill soldiers. 

And this is before we even got to torture – to the pictures of the enormities of Abu Ghraib, the rumors of the secret prisons, the grinding bureaucratic cruelty of Guantanamo.

            This is exactly how terrorists are made.  The point may be obvious enough, but let me quote an expert, Jessica Stern, lecturer at Harvard, a national fellow at the Hoover Institution:

… people join religious terrorist groups partly to transform themselves and to simplify life.  They start out feeling humiliated, enraged that they are viewed by some Other as second class.  They take on new identities as martyrs on behalf of a purported spiritual cause…. The weak become strong.  The selfish become altruists, ready to make the ultimate sacrifice of their lives in the belief that their deaths will serve the public good.  Rage turns to conviction. 

            The results of our leaders’self-deception speak for themselves: A widely-reported flood of Al Quaeda volunteers from all over the Arab world have converged on Iraq.  And they have been joined by many newly-minted volunteers.  It is not possible, of course, to separate out the al Quaeda terrorists from the Shiite, Kurdish, and Sunni militias and the Baathist insurgents which are also wreaking havoc on each other and upon innocent civilians.  For instance, the head of Al Quaeda in Iraq, Abu Musab al-Zarqawi, has spent most of his career attacking Shiites, though he seems now to be targeting only the Western occupiers.  But acknowledging that the inter-ethnic violence we uncorked when we took down Saddam Hussein is a separate problem, it seems clear that the killings of the occupiers are primarily the work of the jihadis. 

            And using that yardstick, we see 53 U.S. military fatalities this month (which is not yet complete), we see 76 U.S. military fatalities and 403 wounded in April, and so on going back — nearly 2500 U.S. military deaths and nearly 18,000 wounded in all so far.   Happy talk from the Administration notwithstanding, things are not getting better.  For instance, there is a perception of light at the end of the tunnel because an Iraqi cabinet has at last been named.  However, as of this writing, heads of the key internal security ministries remain unappointed, blocked by sectarian divisions the Iraqi government was supposed to bridge. 

            Meanwhile, the guerrillas rule.  Here is the lead on an AP dispatch from May 22, 2006 from Ramadi: “Whole neighborhoods are lawless, too dangerous for police. Some roads are so bomb-laden that U.S. troops won’t use them. Guerrillas attack U.S. troops nearly every time they venture out — and hit their bases with gunfire, rockets or mortars when they don’t.”   The reality was succinctly summed up by an American intelligence official quoted by journalist James Risen: “Today, Iraq is the Super Bowl for jihadists.” 

            This outcome was not merely totally predictable.  It was totally predicted.  For the Administration to have disregarded the warnings, to have treated them as if they simply were not worthy of consideration, and to have called that a plan for defeating terrorism, was a catastrophic lie.  That the liars had deceived themselves is no excuse. 

Copyright (c) Jack L. B. Gohn

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 War Powers, War Lies: A Series

Part 13: The War That Wasn’t

Published in the Maryland Daily Record March 31, 2006 

            When George Bush and his apologists linked the U.S.-led attack on Iraq with the so-called Global War on Terror, they invoked a nonesuch.  Not only was there not a War on Terror in the semantic sense (as we saw last time), but there was, in fact, not even a very thoroughly-waged struggle with Al Quaeda.

            This is not to deny that in Osama bin Laden’s mind a war existed.  In a self-styled fatwa  dated February 23, 1998, he called upon Muslims everywhere to respond to what he called “a clear declaration of war” by America on Allah by “kill[ing] the Americans and plunder[ing] their money wherever and whenever they find it.”  And indeed the consequences of the resultant rampage – the Embassy bombings of August 1998, the Cole bombing of October 2000, and 9/11, all direct Al Quaeda operations, not to mention acts by affiliates at home and abroad, have been devastating to both American lives and American treasure.  But when all is said and done, it remains a terrorist campaign.  It does not come close to threatening our survival as a nation, as a war might.  We should not be confusing bin Laden’s delusions of grandeur with reality.  And to buy into his label for what he is doing or our response to it confuses our thinking.

            The best response to terrorism in the West, where there is a well-maintained separation between armies and police forces, is primarily police work, not military action.  In the report of the 9/11 Commission, the nation’s official after-action report of that terrible day, the list of the organizations whose practices, policies and failings are cited for having contributed to the disaster consists mostly of civilian organizations: the FAA, the FBI, the CIA, the New York police and fire departments, the former INS.  These were agencies in the business of law enforcement, public safety, and intelligence, not war.  And the response was largely a matter for these agencies.  That is not to deny the military had to play a role; because many of the plot’s instigators were sheltered by Afghanistan, which would not yield them up to anything but military force, such force was called for there.  But the continuing job of defending against bin Laden’s and related terrorist campaigns remains primarily civilian, not military, and war is not the proper rubric for this or any primarily civilian effort.

            In any case, the pursuit of this so-called war, whether by civilian or military agencies, has been too much a matter of words and too little of action.

            In the months between January 2001, when President Bush came to office, and September 11, 2001, he and his team downplayed the problem and ignored those who were sounding the alarm.  The narratives of the 9/11 Commission and of Richard Clarke, who had worked for both Presidents Bush, and had been the nation’s chief counterterrorism official for both Bill Clinton and George W. Bush, differ little on this.  During the Clinton years U.S. intelligence had gradually awakened to the unique threat of bin Laden and his network, and had begun trying to do something about it,  and then George W. Bush came along and slammed on the brakes. 

            At least three times the Clinton Administration had tried to seize or kill bin Laden and had had to pull back because the conditions were not right.  The sequel, when Bush came to office, has been masterfully summarized by Eric Alterman and Mark Green in The Book on Bush.  Their full discussion is worth a read, but a few points are worth mentioning here.

            Immediately after Bush took power, U.S. intelligence determined that Al Quaeda had been behind the Cole; there was no response from the administration.  On January 31, 2001, a bipartisan commission headed by Gary Hart and Warren Rudman delivered a report to Bush, personally briefing Condoleeza Rice, Donald Rumsfeld, and Colin Powell.  They warned that terrorist attacks using weapons of mass destruction were coming, and they called for the establishment of a Department of Homeland Security to shield us.  Despite the fact that the commission represented the work of a year and a half, Bush announced that the issue would instead be covered in a government-wide review under Dick Cheney’s purview, which Bush would periodically review through the National Security Council.  There is no evidence that any such review by Cheney or Bush ever occurred before 9/11.  And in fact on September 9, 2001, Bush vetoed an effort to reprogram $600 million from missile defense to meeting the domestic terror threat.  On September 10, then-Attorney General John Ashcroft turned down an FBI request to add 149 field agents, 200 analysts, and 54 translators to its counterterrorism effort.

            Bush himself admitted as much to chronicler Bob Woodward: “I knew [bin Laden] was responsible, or we felt he was responsible, for the [previous] bombings that killed Americans.  I was prepared to look at a plan that would be a thoughtful plan that would bring him to justice, and would have given the order to do that…. But I didn’t feel that sense of urgency.” 

            So little urgency, in fact, that the White House ignored more specific warnings.  During the summer of 2001 Bush received two briefings that a major terrorist attack, possibly including hijacked planes, was coming.  Bush received a memo entitled “Bin Laden Determined to Strike in U.S.”  The day he received it, Bush left work early to go fishing.  And at the very beginning of the Bush presidency, Richard Clarke had intensively briefed Rice with a proposal for a major program to “roll back” al Qaeda (arresting its members everywhere), engaging in large-scale covert operations in Afghanistan, providing aid to the Taliban and Al Quaeda’s foe, the Northern Alliance, and going after the worldwide money network of Al Quaeda.  Had the White House responded and led the government with the proper sense of urgency, the likelihood of “connecting the dots” – putting together what was known about the specific plot (e.g. the training of Arab men to fly aircraft, the movements of known terrorists, NSA signals traffic ) – would have been much greater.  Had the obvious focus on aircraft been recognized, the airlines might have been required to enforce the watchlist which should have denied some of the hijackers the right to fly.  Screeners might have been motivated to keep knives and box cutters off passenger aircraft.

            Before September 11, then, there was no War on Terror.  As soon as the planes struck, according to President Bush’s account to Bob Woodward, he “knew” we were at war.   His rhetoric thereafter was uniformly warlike.

            In most wars one tries to capture or kill senior enemy leaders.  We started doing that.  As Clarke said, Bush “began by again offering the Taliban a chance to avoid U.S. occupation of their country and, when that failed, he initially sent in only a handful of Special Forces.”  There was good military sense in invading.  Afghanistan harbored terrorist camps and havens, not to mention bin Laden.  We destroyed the camps.  But we partly botched the efforts to capture the terrorists, looking the other way (at Pakistan’s request) while many flew to Pakistan, and then lied to the press about the existence of the flights and our deliberate neglect of them.   And, of course, we utterly botched efforts to capture bin Laden at the Tora Bora caves. 

            The Tora Bora story has been exhaustively reported by now.  Major investigations by the Washington Post  and the Christian Science Monitor,  investigative reporting by Seymour Hersh, and the memoir of the senior CIA operative at the scene, Gary Berntsen , are all in fundamental agreement.  Too rushed by the White House to wait for sufficient U.S. “boots on the ground,” our leaders tried to work through paid local Afghan warlords to do most of the fighting, with no U.S. commanders on the scene above the rank of lieutenant colonel.  General Tommy Franks tried to “run the show” from Tampa.  Many of the warlords we relied on had already been paid off by bin Laden before we even arrived, and he continued to pay them after the attack started, in particular one Hazrat Ali.[Comment9]  There was never any real chance our proxies would hinder bin Laden’s departure. Just when the major push on Tora Bora began in early December 2001, bin Laden and various associates left, traveling by mountain paths to Pakistan, our supposed ally. Pakistan’s army, on which we were relying to intercept bin Laden if he fled that way, was of uncertain loyalty; not even formally tasked perform the interception, and too few in number, nor did it control the territory where bin Laden fled, which was run by local Pakistani tribes.

            And even after bin Laden was gone, as Richard Clarke recounts, Bush “dispatched additional forces but less than one full division equivalent, fewer U.S. troops for all of Afghanistan than the number of NYPD assigned to Manhattan.”   True, as James Risen of the New York Times reported, there had been a promising plan to send Afghans into the new Al Quaeda homeland, southwest Pakistan, after bin Laden and the remaining core of his organization.  But then the Administration shifted its focus to Iraq.  This was the moment when “al Quaeda was most vulnerable…. The United States captured or killed more than two-thirds of the operatives who had been running al Quaeda at the time of the attack on new York and Washington.”  But when that remainder were nearly beaten, as one NSC official told Risen, the intelligence forces were advised: “Here’s what you have now, you don’t get anything more.  No additional missions, no additional forces, no additional dollars.”[Comment11]   Al Quaeda was allowed to recover.

            Not surprisingly, from that point on, the Administration’s rhetoric about the priority of the bin Laden manhunt was dialed back considerably.  Militarily, from that point until Iraq, the “war effort” consisted primarily of seizing Muslim men from around the world and, in plain English, being really mean to them.  There was an intelligence component and a prevention component to the roundup and the ill treatment, no doubt, but after a very early point, the expression of anger seems to have been the real gist, along with venting frustration at the poor quality of intelligence being received.  Jane Mayer of the New Yorker recently paraphrased David Brant, an NCIS investigator, summing up the interrogations at Guantanamo: “Military-intelligence interrogators at Guantánamo … seemed poorly trained, and were frustrated by their lack of success, [leading to] escalating levels of physical and psychological abuse.”   As recently released transcripts of Combatant Status Review Tribunals reveal, most of the prisoners against whom these atrocities were committed were not very likely ever to have been terrorists.  For instance, it emerges that a number of them were detained simply because they wore a model of watch which had been used in bombings linked to Al Quaeda.  And the atrocities continued after the prisoners [Comment13] had been confined for so long their intelligence, if any, had to be stale.  This sad performance scarcely merits the name of warfare.

            Meanwhile, on the domestic front Bush did much to thwart preparation against future terrorist attacks.  Real warfare typically involves a defense of some sort.  And defense starts with planning and organization.  Bush fought the formation of the 9/11 Commission and failing at that, successfully saw to it the Commission was underfunded.  Even after 9/11, Bush continued to resist creating a Department of Homeland Security until popular opinion made that stance untenable.   Although it was obvious that passenger and luggage screening needed to be federalized as a fundamental bulwark against repetitions of 9/11, Bush resisted.

            The home front “war effort” remained weak throughout the buildup to Iraq.  It would take several articles to list the particulars.  A few representative instances (suggested again by Alterman and Green) will have to do.

$          In the face of widespread media outrage, the Administration continued to allow chemical plants to handle horrifically dangerous materials with essentially no security.

$          In 2002, Bush impounded $2.6 billion earmarked for homeland security and $500 million for first responders. 

$          In November 2002 the National Nuclear Security Administration (which provides protection for nuclear labs and our nuclear stockpile) was forced to announce a hiring freeze despite a shortage of guards. 

$          The 2002 and 2003 budgets badly squeezed the financial viability of the Coast Guard.

            Instead of taking necessary measures to shore up the nation’s security against chemical, biological, or nuclear attack by terrorists, the Bush administration commenced to lavish billions of dollars (approximately $250 billion at most recent estimate)  on attacking Iraq.  This was called a part of the War on Terror.  But there was no War on Terror of which the Iraq fiasco could become a part.

            In fact, as we shall see next time, our venture into Iraq created a terrorist incubator where none had existed before.  Invading Iraq to vanquish Al Quaeda was like trying to quench a fire with gasoline.

War Powers, War Lies: A Series

Part 12: Not GWOT

Published in the Maryland Daily Record February 24, 2006 

            As we saw last time, George W. Bush brought to office with him a group of advisors dedicated to deposing Saddam Hussein militarily.  The rationale for their policy was somewhat obscure, but was closely tied to a strategic vision of the United States as a superpower willing to use proactive force to promote American interests and spread American values.  Iraq was to be the template for deployments of this type.  A blunt admission that this was the whole explanation for the invasion of a sovereign nation that had not attacked the United States, however, would have provoked politically undesirable, or even unwithstandable, outrage at home and abroad.  And thus the project of selling war on Iraq was born.

            The sales pitch included the assertion that attacking Iraq was part of what they called the “Global War On Terror,” often abbreviated to the infelicitous syllable GWOT.  (The BBC reported in July 2005 that White House was trying to replace “GWOT” with “a global struggle against the enemies of freedom.”  But the buzzword proved durable and has so far defied replacement.)

            Probably the first explanation — and it was not much of an explanation – for the intended invasion of Iraq was the 2002 State of the Union Message.  There Bush memorably linked three countries (Iran, North Korea, and Iraq) as forming an “Axis of Evil.”  Of itself, the metaphor was stunningly inapt.  The original Axis powers, our World War II adversaries, were actual allies.  Iran and Iraq by contrast, had fought an 8-year war with each other in recent memory.  North Korea, one of the world’s most isolated regimes, had no evident connection with the other two.  The case for Iraq being generally evil lay in its development of weapons of mass destruction, its use of them against its own people, and in its resistance to international inspections.  As far as international terrorism went, however, Bush stated only this: “Iraq continues to flaunt its hostility toward America and to support terror.”  He cited no evidence that Iraq was supporting terrorism against the West, slipping instead into a weird form of future subjunctive: “They could provide these arms to terrorists, giving them the means to match their hatred. They could attack our allies or attempt to blackmail the United States.”

            There never was much more meat on these bones, as Eric Alterman and Mark Green demonstrate in their 2004 book, The Book on Bush.

            The Administration was able to find proof that in the early 1990s the Jordanian Sunni terrorist now widely known under the pseudonym Abu Musab Zarqawi was staying in Baghdad.  The Administration at various times spoke of this period as giving rise to “high-level ties” between Iraq and Al Qaeda.  But there is absolutely no credible proof of any contact at all. Even if there had been contact, it would have occurred before Zarqawi[1] had affiliated with Al Qaeda.[2]  (Then as now, Zarqawi’s primary war was with Shiites; the West was only second in line.)  Later, as the Administration pointed out, Zarqawi ran training camps in Iraq.  The Administration ignored that the camps were in Kurdish-controlled areas where Saddam’s writ did not run.

            There was also a story that Mohamed Atta, the leader of the September 11 plot, had met in Prague in April 2001 with an Iraqi intelligence official.[3]  Although the matter is not beyond all dispute (see a very objective September 3, 2002 posting in Slate by Kate Taylor summarizing the evidence pro and con), it appears likely that this story was either a hoax or a mistake. Vaclav Havel, the Czech president, told the White House personally that the contact was impossible.

            And, as Alterman and Green point out, when a high-ranking Al Qaeda operative, Abu Zubaydah, was captured in Pakistan in March 2002, he told his interrogators that Osama bin Laden had expressly rejected the notion of cooperation with Hussein, whom bin Laden viewed as an infidel.  This was corroborated by a number of captured Al Quaeda agents later that year.

            We now know that the Administration chose instead to believe the one captured informant who contradicted them.  Ibn al-Sheikh al-Libi, described by the Washington Post as “once in bin Laden’s inner circle and a senior operative who ran the Khaldan paramilitary camp in Afghanistan,” was captured in Pakistan in November 2001.  The U.S. turned him over to Eqyptian intelligence, which tortured him.  Under torture, al-Libi claimed Iraq had trained Al Quaeda in the use of explosives and chemical weapons.  Upon being sent on to U.S. custody in Guantanamo, al-Libi recanted.  Not until December 9, 2005 did American officials admit that the statements made under torture were false.

  But by that time, the Administration had repeatedly apparently relied upon al-Libi as a source to prove its otherwise untenable point.  For instance, in an October 2002 speech in Cincinnati, Bush stated: “We’ve learned that Iraq has trained al Qaeda members in bomb-making and poisons and gases.”  When Secretary of State Powell addressed the U.N. on the eve of the invasion, he too cited Libi’s intelligence. 

            And, as Porky Pig says: That’s all, folks.  That’s all the public has ever been told about reasons for linking Iraq with Al Qaeda.  Even going into the war, this scintilla of data never convinced our allies the British.  As the now-famous Downing Street Memo (minutes of a July 23, 2002 meeting of Prime Minister Blair and his defense ministers) summed it up: “Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy.” 

            In the March/April 2006 issue of Foreign Affairs,[4] Paul Pilar, who was National Intelligence Officer for the Near East and South Asia, in other words, the intelligence community’s chief analyst for those areas, from 2000 to 2005, issued a scathing indictment of the “inverted” use of intelligence on several issues in selling Iraq, but especially on this point.  The intelligence community always agreed that there was no Iraq-Al Qaeda connection worthy the name.  The Bush Administration kept sending intelligence officials back again and again to try to establish what they knew they could not.  Pilar observed:

          Undeterred by the lack of substantial evidence to support its chimerical Saddam-Osama tie, the White House and Pentagon pushed harder:

            It may have been lousy intelligence.  It was effective public relations, however.  In February 2003, 72 percent of Americans polled answered yes to the question: “Was Saddam Hussein personally involved in the September 11 attacks?”  And this result was in line with poll after poll.[5]

            This was not a trivial misunderstanding; it bore great legal significance.  Whatever color of authorization the Bush invasion of Iraq may have taken from United Nations resolutions (and that color was indistinct at best), the principal legal justification for our involvement, from the standpoint of U.S. law, was that the attack on Iraq was part of our “war against terror.”  The critical three paragraphs of the Congressional authorization, H.J. Res. 114, 107^th Cong. (2002), specifically invoke that supposed war as the enterprise of which the projected war on Iraq was to be a part.  I quote a part:

            Nothing else carried the justifying power of the “war on terror.”  Iraq’s supposed WMD program and its flouting of the inspection regime (to be discussed soon) did not in themselves justify attacking Iraq under international law, even under the aggressive Bush Administration interpretations, though they might have meant a little more if Saddam could have been shown to intend momentarily to use his hypothetical WMDs. But preemptive war remains fundamentally illegal in the eyes of most of the world.  On the other hand, once a nation has been attacked, it has a universally recognized right to defend itself.  And while the Bush Administration’s views of a “global war” theater in which all the world’s a stage and the curtain never falls could in theory justify any actions taken against anyone under any conditions, a response to a very specific attack on the U.S. was legitimate as nothing else in the Administration’s legal and political case for war could be.  And so the attack on Saddam was both sold and legally justified as part of a “global war on terror.”

            This was a double lie.  There was no proof that any sane and reasonable intelligence analyst could take seriously that Saddam had had anything to do with the September 11 attacks of Al Qaeda. But even if he had, this would not have rendered the attack on Saddam part of the War on Terror.  And that is because there never was, and could not in the nature of things be a “war on terror” of which the war on Iraq could be a part.

            In the nature of things it could not be a war because war almost always means a struggle between sovereign nations using military forces. Terrorism is a weapon or tactic used mostly by those who are not sovereign nations and who lack armies.  To speak of a war on terror is like speaking of a war on land mines or a war on siegecraft. 

            Nor is terrorism a tactic we categorically oppose.  People that we have supported recently – some very recently (Salvadorian death squads, Muslim fundamentalists when we paid them to lay waste to the Russians in Afghanistan, Egyptian torturers, CIA torturers for that matter) use terroristic tactics, and we are not attacking them.  People that we do not necessarily support also use terroristic tactics (Russians in Chechnya, Sudanese genocidalists, Hutus in Rwanda) and we’re not about stopping them either. Terror may not be a legitimate tactic of war but it certainly is a widespread one, and we are not really trying to stop it as such.  As Noam Chomsky pointed out long ago, to go by the definition of “act of terrorism” found repeatedly in the U.S. Code (e.g. 18 U.S.C. § 2331), we ourselves are a terrorist nation.

            But to call the claim that we are waging war on terror a lie articulates a disagreement that is far deeper than a mere matter of semantics.  Even as a figurative term, meaning a semi-defensive struggle against terrorists who would attack the West, even as a euphemism for a struggle against armed Islamic fundamentalism, the phrase “war on terror” was a fraud.  Before September 11, 2001, the Bush Administration’s attention to the task of defending us against Islamic terrorists was disjointed, insincere, underfunded and basically laughable.  After September 11, the rhetoric changed far more than the reality.  As we shall see next time, we have hardly been fighting terror at all.  But even if we had been, our attack on Saddam Hussein had nothing to do with it.  That much is certain. 

            GWOT it was not.

[2]   Alterman and Green at 277.

[3]   Alterman and Green at 279.

[4]  Now partly hidden behind a pay wall.  You can start the viewing here.

[5]   See Alterman and Green at 282.

Copyright (c) Jack L. B. Gohn

[2]   Adam Liptak, Truth, Fiction and the Rosenbergs, New York Times 1 /21/06 quoting Doctorow at Fordham Law School presentation at Park Café in Time Warner Center 1/19/06

[3]   See Andrew Bacevich, The New American Militarism (2006).

[4]   Mann at 213.  And see here and here.

[5]    Mann ca. 191-94.

[6]    Bob Woodward, Plan of Attack (2004) at 9.

[7]    I read this piece at one URL before the New Yorker put it behind a pay wall.  I cannot locate it now.

[8]    Clarke, 30-31.

[9]    Packer at 46.

Copyright (c) Jack L. B. Gohn