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Foreboding in the Law Library of Achilles

 Published in the Maryland Daily Record December 30, 2005 

First fashioned he a shield, great and sturdy, adorning it cunningly in every part, and round about it set a bright rim…  and on it he wrought many curious devices with cunning skill.  Therein he wrought the earth, therein the heavens, therein the sea, and the unwearied sun, and the moon at the full, and therein all the constellations wherewith heaven is crowned … 

            With these words (from Samuel Butler’s translation of The Iliad) the poet Homer begins a lengthy description of the shield the blacksmith god Hephaestus crafted for the Greek champion Achilles.  From the wild profusion of the items Homer tells us were depicted on the shield (including wars and cities and weddings — not to mention an actual lawsuit, over blood money), the reader knows that no real-life object designed for warding off swords and spears could ever contain so much detail.  No soldier, be he ever so doughty, could have carried it.  The shield is a metaphor, virtually, for encyclopedic attention to everything worthy of consideration. 

            Maybe Bronze Age Hellenic warriors could not have actually carried around a representation of everything.  But we in the Silicon Age increasingly can and do.  The leading cultural indicator is the iPod, the device which shrinks perhaps 15,000 compressed songs to less than the volume and weight of a pack of cards, with easy retrieval and playback through headphones or stereos.  Since for most of us music lodged in our subconscious is literally the soundtrack of our lives, and can evoke memories of almost everything, likening the iPod to Achilles’ Shield is not an idle comparison. 

            We in the legal profession have witnessed the fashioning of our own Achilles’ Shield. 

            In the professional lifetime of most practicing lawyers, the effort of each judge, lawyer, firm, county bar and university to maintain an individual collection of law books has been largely abandoned, as has the reliance of researchers on such collections.  The books are still published, but have become far less widely purchased.  Most of us rely now for most of the codes and decisions and dockets and treatises and indices and law review articles and everything else we need to understand the law upon the unseen gnomes of Eagan, Minnesota, who feed the gaping maw of Westlaw, and those of Dayton, Ohio who stoke LEXIS. We no longer own paper books, except for the things we refer to every day, like state codes.  And we do not own Westlaw or LEXIS; we only rent them. 

            Why the sea change?  Why would we give up personal ownership of such vital resources?  

            Those of us who can remember all-paper research know that it truly had its charms.  And within recent memory the on-line resources were neither complete nor reliable enough to make on-line research the only research we did.  It was in that era that the phrase “computer-assisted legal research” a/k/a “CALR,” was coined.  “Assisted” was all we could hope for, if we were being careful.  Only slapdash practitioners relied just on the computer, in fact such reliance was a hallmark of sloppy, jejune research.  But like a teenager stuffing more and more great music in her iPod, the Westlaw and LEXIS gnomes rapidly accreted more and more of the necessary resources in their terabytes.  The moment came when it was possible to be careful and thorough and still never leave a keyboard and monitor.  The moment also came, probably the same moment, when it became palpably more convenient never to leave the keyboard and monitor. 

            That was the tipping point.  Suddenly, the disadvantages of paper sources stood out.  Books were bulky, expensive and time-consuming to maintain.  By contrast, on-line law libraries were eminently accessible, maintenance-free, and not such a terrible deal financially.  And compiling a rentable library was completely feasible.  Unlike the myriad unique and idiosyncratic personal musical odysseys chronicled in our respective iPods, there is basically one universal law library.  Because in general the components of that library are agreed, specialists like LEXIS can be trusted to know what they need to assemble for us. 

            Moreover – and here is the Shield of Achilles part – the entire universal law library can be accessed through any laptop.  Arm your laptop with wi-fi or plug it into your firm’s Ethernet wall-port, and you have it: the equivalent of most of the items you would find in the best-equipped law library.  And no need to forego the paper you still want: if you possess a printer you can print out what you want.  The new, totally portable Shield can make fearsomely equipped legal warriors of us all, wherever. 

            All problems solved?  Happy ending?  One hopes so.  There is another legend about Achilles to bear in mind, though.  He was supposedly invincible.  His mother, the nymph Thetis, had dipped him in the River Styx, and wherever the waters had touched Achilles’ body, he could not be wounded.  But, in an early example of the inability of any system to exclude all error, Thetis had had to hold part of Achilles in order to dip the rest of him.  Her fingers closed around Achilles’ heel.  And the heel from which he was suspended thus did not come in contact with the Styx.  Leading to no great suspense as to which part of his body Achilles later took a fatal wound.  It is axiomatic that every system has an Achilles heel. 

            And here the heel could be centralization. 

            When we rent our resources from electronic vendors, the physical system atrophies.  Go to almost any law library and check out the number of sets of treatises, law reviews, reports, etc. that are no longer kept current.  Ask any law librarian about the brutal way the laws of supply and demand are playing out in the pricing of paper resources.  You will learn that the cost of the paper is inflating, not because the law book manufacturers have been gripped by self-defeating greed, but because with fewer subscribers, the cost of creating the paper resource cannot be as widely spread.  A vicious circle is well in progress, since the high price of the paper resources causes subscribers to fall by the wayside, which raises the prices, which further diminishes the subscriber base, etc.  There is only one possible outcome: the end of most law books as we know them.  The next generation will see this resource disappear, and the disappearance or radical transformation of the law library system. 

            When that process is complete, all the information we lawyers rely upon will be held by a small circle of electronic vendors.  And the holding of all this information is a mission-critical task, not just for us lawyers, but for the civilization our legal system plays such a vital role in holding together.  These few vendors, proprietors of a few banks of spinning disks in Minnesota and Ohio, are becoming the holders of our memory.  And for the law, as we all know, memory is crucial.  Without memory, there is no stare decisis and no precedent, no judgments to which faith and credit is accorded.  

            Think about the media involved.  What do we really know about their security?  I asked representatives of Westlaw and LEXIS about this.  Westlaw, it turns out, parks its data on six redundant servers, but four of them are within a half mile of each other.  Westlaw also has off-site storage of backups.  LEXIS keeps it data at two redundant centers, 45 miles apart. 

           What if there were a war?  It is likely that a half-dozen well-placed nuclear blasts with their attendant electromagnetic pulses could erase, if they did not vaporize, the few computer banks where most of our legal memory resides.  One bomb could apparently take out 4 of Westlaw’s 6 servers.[1]  One bomb’s pulse, covering the 45 miles between the centers, might be able to take out LEXIS altogether.[2]  And by “out” I mean out forever, as in totally erased. 

            There could also be vulnerability to sabotage, either by hacker targeting or as collateral damage to some kind of computer virus.  Of course hacking is nothing new.  LEXIS says that so far as it knows no hacker has ever succeeded in penetrating or tampering with its legal databases.  (There was an incident earlier this year where a LEXIS customer compromised the security, but not the integrity, of a LEXIS-owned database, but that was, if you will, the opposite problem: too wide dissemination, not the rendering of data immune to dissemination forever.)  But there is an inherent risk in maintaining a database whose very commercial function is to be subject to querying by and interaction with the public all day, every day. 

            Given all this, it is easy to imagine that after some future cataclysm, the role of the medieval monks in transcribing the books of antiquity might be reprised by latter-day monastics whose equivalent contribution would be rescanning F.2d and ALR. 

            The irreducible dilemma with any such enterprise, be it library or Google, is that centralized data is vulnerable.  The great library at Alexandria was a marvelous and indeed indispensable thing — until it burned.  The legend has it that one of the Ptolemies ordained that the police would seize every book brought by each traveler into Alexandria, have it swiftly copied by scribes standing by at the library, and then return it to its owner, much as the Ptolemies’ successors in the field of American law, the West folks in Minnesota, engorge and process each new addition to the agreed legal canon.  But centralizing all that information also magnified its exposure.  We know the titles of many books that did not make it down through time to us because they were “preserved” in just such a fashion at Alexandria.  It was all in one place, and hence it was all susceptible to being burned in one fire.  How certain can we be that our increasingly centralized canon will physically pass through fires, floods, wars, or even power outages, over the next hundred years, to reach our great grandchildren? 

            We shall find out, because we have no realistic alternative.  Computers are so vastly more efficient than paper at miniaturizing, preserving, and organizing and retrieving data, including legal information, that they are and should be the way we go about it.  And let’s be fair: paper records don’t have a great survival rate either.  Yes, there are the still surviving British parchment parliamentary rolls that chronicled events like the deposing of Richard II in 1399.  But good luck trying to find U.S. servicemen’s records from World War II, most of which were lost in the 1973 fire at the federal repository in St. Louis.  And if you have ever tried to research the old paper records of individual cases in official court files, you know that there is frequently a gap between what theoretically exists and what can actually or timely be located.  Paper has been a wonderful way of preserving redundantly distributed data, like official court reports, but a mediocre way of preserving unique data.  Misfiling, de-accessioning, bookworms, and fire and flood take their toll on unique information captured in paper form.  And these days, the name of the game is preserving everything, including the unique data.  And for that you need an Achilles’ Shield. 

            But it has, or should have, a necessary implication.  The preservation of our legal memory is a national priority, right up with everything else our homeland security apparatus supposedly protects.  Insufficient attention has been paid to the implications of the centralization of that whole memory in the hands of a few.  It is simply too important a matter to leave completely unregulated.  A Congressional inquiry into legal database data security would be an excellent idea, in light of the de facto control of a crucial national resource by a handful of vendors.  How safe is it?  We don’t want to find out, a la Katrina, that the no one has adequately secured the data against the insults to its integrity that are sure to come.  We need to set some standards, and make sure they’re observed. 

            In short, the direction of the enterprise for preserving and accessing our legal history is clear.  But the safety of the enterprise is not clear at all.  And that lack of clarity should not be acceptable.  We need to know. 

            After Achilles was slain, his shield and armor were kept safe.  Odysseus, recognizing their value, competed with Ajax for them, and won the inheritance.  Ajax, cognizant of what he had lost, went mad and slew himself.  That suicide may have been an extreme act, but it shows that when it came to compendiums of knowledge, the ancients understood their uniqueness and importance.  Do we? 

---

 

[1]   The Air Force seems to have taken down my source for this conclusion: http://www.airpower.maxwell.af.mil/airchronicles/kopp/apjemp.html , 

[2] “In stark contrast, high-altitude burst, detonated a few hundred kilometers above the surface of the Earth, has as its salient featured effect the ability to simultaneously bathe an entire continent in EMP. The ability of EMP to induce potentially damaging voltages and currents in unprotected electronic circuits and components is well-known. The immense footprint of EMP can therefore simultaneously place at risk unhardened military systems, as well as critical infrastructure systems to include power grids, telecommunication networks, transportation systems, banking systems, medical services, civil emergency systems and so forth.” 

– Testimony of George Ullrich, the Deputy Director of the Defense Special Weapons Agency, HR Comm.  on National Security, July 6, 1997.  

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies

Part 10: Kangaroo

Published in the Maryland Daily Record November 18, 2005

          The story goes that Bill Barr first suggested military commissions while the 9/11 ruins were still smoking in New York and Washington. William P. Barr, former Attorney General, told Timothy E. Flanigan, then Deputy White House Counsel, that military commissions were the way to try the bad guys. Not the courts, not courts-martial, but military commissions, a form of adjudication unknown since World War Two.  Flanigan’s boss, White House Counsel Alberto Gonzales, picked up on it and started pushing it in the ad hoc interagency group formed to plan terrorist prosecutions.  The other members of the group were less than thrilled, so Gonzales and Flanigan snatched the planning back from them, and planned prosecutions in strict secrecy, with commissions as the only option.

          Gonzales and Flanigan were intent on commissions and the interagency group was opposed for the same fundamental reason: commissions are not disinterested tools for locating the truth.  They are what lawyer Michael Ratner calls courts of conviction.  Comprised of military officers unconstrained either by civilian due process principles or the Uniform Code of Military Justice, commissions can operate anonymously, secretly, and by idiosyncratic rules.  The thinking of commission supporters was that courts would be overwhelmed by the numbers of detainee defendants, not to mention that judges and juries might be targeted and endangered; that the information to be used as evidence would be highly sensitive and access to it needed to be carefully controlled; that allowing the participation of defense lawyers would slow down the process; and that judicial review should be denied.

          Deeply inimical by their very nature to American habits of adjudication, military commissions are nonetheless permissible in certain circumstances under American law.  A Revolutionary War commission tried and hanged Major John Andre, a British spy.  Numerous Confederate undercover agents were tried by military commissions (and mostly hanged) during the Civil War.  Eight German saboteurs covertly landed on American shores during World War II were convicted by commission, and their sentences confirmed in Ex Parte Quirin (1942).  Common to these cases was that the defendants were not members of the U.S. military (who would have had the privilege of court-martial) nor ordinary POWs, but instead enemy combatants deemed to have broken the laws of warfare. Each of the above cases, however, had to do with one particular kind of offender: a covert and therefore illegal combatant captured and tried on U.S. soil.

          One rather different precedent, however, was of greater interest to the White House lawyers making the case for military commissions: Johnson v. Eisentrager (1950).  Eisentrager had been part of a detachment of German soldiers marooned in China after V-E Day, when the Germans formally surrendered.  Being part of the Japanese Theater of the war, and under Japanese protection, they had continued the fight.  Their continued warfare on Germany’s behalf was illegal, at least in the eyes of the American soldiers who captured them after V-J Day.  They were then tried by a U.S. military commission in Nanking.  When they applied for habeas corpus relief, the Supreme Court denied relief saying that U.S. courts had no jurisdiction to grant habeas abroad, even if U.S. forces were alleged to be violating international law in holding or trying them.  It was an easy leap from this precedent to Guantanamo and elsewhere outside the U.S.

          In keeping with the developing thinking of these advisors, President Bush issued a November 13, 2001 order authorizing commissions, though it did not specify where these would be held.  However, among its features was that the President in his sole discretion would determine who would be subject to trial by military commission, the rules of evidence would be essentially whatever the commissions determined, a 2/3rds vote would suffice for a death sentence, and review would be solely by the President or the Secretary of Defense.  There was no provision for defense lawyers, and no specification of the source of the laws tribunal defendants might be accused of violating.  In formulating the document, the White House lawyers brushed off all suggestions from an alarmed Pentagon legal team that had tried to soften it.[1]  They also ignored that the State Department had just been protesting the use of military commissions by other countries, e.g. to try Lori Berenson in Peru and Ken Saro-Wiwa in Nigeria.[2]

          The reaction of press, academia and much of the bar was swift and appalled.[3]  Perhaps to deflect it, Secretary of Defense Donald Rumsfeld issued an implementing order on March 21, 2002 which addressed one gap alarming to initial commentators: counsel.  Now defendants could in theory employ civilian defense counsel of their choice – so long as counsel could pass the rigorous security clearance – and so long as the defendant could somehow obtain civilian counsel while being held incommunicado and without the means to pay — and so long as counsel accepted the right of the tribunal to issue gag orders.  (Non-optional military defense counsel were also provided for.)  But in other respects the order yielded little to the clamor of those who saw a total inconsistency between the tribunals and the practice and spirit of U.S. law.

          Neal Katyal of the Georgetown Law School and Laurence Tribe of Harvard Law published a blistering attack on the tribunals in the Yale Law Journal in April 2002.  Among their many criticisms was that in our society, detention of anyone has traditionally involved three branches of government: the legislature to set the policy and conditions for detention, the executive to seek it, and the judiciary to impose it. The tribunals, by contrast, were designed to play out solely within the executive.  There were similar complaints from the ACLU and Human Rights Watch.

          The response of the Bush administration, by then busily rounding up Muslim men from every corner of the globe, was slow.  In part, no doubt, this was because at that point the intake process was still ramping up, and interrogation was the priority, not adjudication or release.  But there may have been a sense of caution, as well, because civilian courts were beginning to see habeas petitions filed by self-appointed lawyers for the detainees.  The first case was filed on February 19, 2002.  By mid-2004 there were 13 cases pending in the United States District Court for the District of Columbia, determined to be the venue for cases coming from Guantanamo.

          The cases frequently dealt with a more fundamental issue than whether the detainees had committed crimes: the claim that detainees should enjoy some sort of process to determine whether they should even be detained as enemy combatants in the first place.  It was a reasonable interpretation of the Administration’s public pronouncements that at this point all detainees were considered subject to criminal charges by virtue of their supposed status as illegal combatants (i.e. members of al Quaeda or the Taliban).  Hence it might have been thought that the commissions awaited all of them.  So for the next two years, the commission rules were refined through the release of new orders, and charges were issued against a handful, about a half-dozen, of the hundreds of detainees.

          Moreover, it now appears that by mid-2004 the government was quietly beginning to get rid of detainees it deemed low in both intelligence value and threat, with perhaps as many as 234 being released from Guantanamo alone.  (Some of them were definitely being released, although others may have been rendered up to their native governments for further imprisonment.)  In effect, without benefit of any sort of adjudicatory procedure, the Administration was doing the equivalent of acquitting some detainees and finding others guilty of being enemy combatants.

          The courts, however, had other ideas.  Indeed, as Alan Dershowitz has observed, after the release of the notorious Abu Ghraib photographs in April 2004, it became politically impossible for the Supreme Court to allow the Administration to carry on business as usual with the detainees.  In June 2004, therefore, the Supreme Court handed down Rasul v. Bush, which shocked the Administration by declaring that judicial habeas authority extended to Guantanamo, and that detainees should have access to some form of due process to determine whether they were even enemy combatants.

          The Administration was nevertheless one step ahead of the Supreme Court.  It had already taken account of the possibility it might lose Rasul and be called upon to allow formal adjudication of its identification of detainees as combatants.  Hence, nine days after Rasul, the Government announced a program of Combatant Status Review Tribunals (“CSRTs”).  Having already determined in its own mind who were the combatants, the Pentagon really had no use for further adjudication, but if the Justices wanted adjudication, adjudication the Justices would get.  “Kangaroo court” adjudication, to be sure, but adjudication nevertheless.

          Even the military commission machinery that had been set up for the trial of war crimes proved too cumbersome for the designers of the CSRTs.  In these CSRT proceedings, intended to be held before three military officers, the burden of proof would on the detainees, and they could be and were denied information about who their accusers were and what information was being used to “convict” them.  They were denied lawyers.  Reporters were largely prevented from attending.  Between July 30, 2004 and October 20, 2004, approximately 153 CSRTs were held.  During that period exactly one detainee was found not to be an enemy combatant.  Res ipsa loquitur.

          At this point, Judge Joyce Hens Green of the District Court for the District of Columbia tried to put her foot down.  The Guantanamo cases had been consolidated before her for various matters, in light of her significant experience in intelligence matters.  One conservative judge, Richard Leon, nonetheless opted out so as to preserve the ability to make rulings more favorable to the Administration.  But the majority excoriated the CSRT rules,[4] There had to be counsel, and there had to be reasonable access to prosecution evidence.  These rules were formalized in new CSRT protocols made part of a court order on November 8, 2004.

          It made no difference.  The CSRTs rolled on, and by March 29, 2005, when the tribunals ended, 558 tribunals had been held, and there were only 38 “acquittals.”  And certain language in Pentagon press releases suggested that the “acquittals” only meant the detainees were “no longer” enemy combatants.  So far as I have been able to determine, not one detainee was affirmatively cleared by CSRT of ever having been one.

          Meanwhile, there was trouble back on the military commission front.  In March of 2004, two military prosecutors, Capt. John Carr and Maj. Robert Preston, USAF, quit because, according to the Wall Street Journal, they believed their fellow prosecutors were ignoring torture allegations, failing to protect exculpatory evidence, and withholding information from superiors.  Once the first trial began, on August 24, of Salim Ahmed Hamdan (Bin Laden’s driver), a defense lawyer, Navy Lt. Cmdr. Charles Swift, made an opening statement attacking the fitness of the presiding officer, Col. Peter Brownback, for, among other things, lack of current bar registration and ex parte contact with the Office of Military Commissions.  When Brownback angrily denied the contact, Swift played an actual recording of the conversation.  He also demonstrated that another member, Lt. Col. Curt S. Cooper, did not even know what the Geneva Conventions were.  In fact, only one member of the 6-member panel escaped Swift’s demolition.  Small wonder that an LA Times editorial called the proceedings “something between a Mel Brooks farce and the kangaroo courts of former Ugandan dictator Idi Amin.”  While there were later efforts to weed out some of the more incompetent members of the tribunal, Brownback retained his post, reportedly because of close personal ties with the Appointing Authority.

          The Hamdan commission and all the others were derailed when, on November 8, 2004, Judge James Robertson held the tribunals illegal under the Geneva Conventions and due process, among other things.  On July 15, 2005, a panel of the D.C. Circuit, including now-Chief Justice John Roberts, reversed.  But that was not the end.  On November 7, the Supreme Court granted certiorari (Roberts not participating).  Although on July 18, the Department of Defense announced its intent to proceed with the commissions (while improving the rules to exclude evidence not made available to the defense), and charge eight more detainees with war crimes, the commissions appear to be suspended right now.  So this remains a story in progress.

          Objectionable as the use of military commissions and CSRTs to dodge due process and accountability may be, some grim facts must keep it in perspective.  Unfortunately this is not as bad as it gets.  All of the recent cases discussed above have to do with Guantanamo.  The Supreme Court has never suggested that habeas might be available in other places where the U.S. keeps detainees.  For all its horrors, up until now (the hunger strikes proceeding apace there might change this) Guantanamo has been a place where at least detainees don’t usually die.  That is not insignificant, as the ACLU made clear in an October 24 report which revealed that 21detainees appear to have died of homicides at U.S. facilities in Iraq and Afghanistan, some under torture while being interrogated by Navy SEALs and the CIA.

          A report in The Washington Post on November 2 said the CIA had set up secret prisons for terror suspects in eight countries including Thailand, Afghanistan and “several democracies in eastern Europe,” where probably 100 detainees are being kept without any admission by the U.S. they are even there.  (A later though less reliable report suggests the real number may be in the thousands.)  It seems unlikely the detainees there even received either military commissions or CSRTs.  From their even lower circle of hell, they would probably love to face military commissions rather than torturers.  But the Court has never suggested that habeas or any other form of U.S. judicial remedy would be available to such detainees.

          As this is being written, an Iraqi court, trained and financed by the United States, is trying our enemy Saddam Hussein for human rights violations.  And here is the moral, strategic, and tactical problem: How we can expect the world to accord full faith and credit to that court’s eventual verdict when we establish and countenance tribunals that are themselves human rights violations?  A question urgently worth pondering.

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[1]   Michael Ratner and Ellen Ray, Guantanamo: What the World Should Know (2004), at 71-75.

[2]   Ratner and Ray, at 79.

[3]   See e.g. here.  Since the publication of this piece, links to a number of other examples have gone dead.  However, I was satisfied at the time that the revulsion was widespread.

[4]   Al Odah v. U.S., 346 F.Supp.2d 1 (October 20, 2004).

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies: A Series

Part 9: Away Games

  

Published in the Maryland Daily Record October 28, 2005 

  

          Good pitchers often make lousy batters, and it’s harder to win if you have to let your pitcher bat.  That’s the appeal of designated hitters, superior batters who fill the pitchers’ slot in the lineup.  National League teams still pitch their batters, however, with one exception.  In interleague play, the home team’s league rules usually govern.  So when a National League team visits an American League park, it catches a break.  In the global war on terror or, as the Bush Administration likes to call it, the GWOT, the U.S. aspires to the situation of a National League team in interleague play — relaxed rules.  This time we consider three aspects of the relaxed GWOT away game we are playing these days: foreign assassinations, extraordinary rendition, and prisoner export. 

          On U.S. soil, except in response to active armed attack, military occupation by an enemy, or emergent crime, the government is not supposed to take lives extrajudicially.  The Fifth and Sixth Amendments forbid it.  This has been clear since at least Ex Parte Milligan (1866).  Nor are the various military units trained to “take out” specific individuals allowed to act against persons found on U.S. soil; this would ordinarily contravene the Posse Comitatus Act.[1] 

          Away from home, however, there are few legal restraints.  It is true that language in Executive Order 12333 (1981) forbids “assassination.” But that term, undefined in the Order itself, is generally defined under the current international law of war not to include the targeted killing of foreign combatants, including those in command positions, by stealth or ambush.  (There is a “treachery” exception, forbidding killing of enemy commanders, including enemy political commanders, in violation of rules like truce and parley which are independently necessary for the implementation of other laws of warfare).  There is ample authority under international and domestic law alike for killing the likes of Osama bin Laden and his associates, as well as for efforts to kill Muammar Khaddafi (which we tried in 1985).  We may think of this kind of killing as assassination, but it passes muster under international law and hence under Executive Order 12333. 

           Certainly this Administration has taken to this option like no other, relying on Hellfire missile-equipped Predator drones and Special Forces to kill members of militant and insurgent groups in Yemen, Iraq, and elsewhere.[2] OK, it’s legit.  But the important thing to note, for present purposes, is that it only remains legit while we’re on a war footing.  Oh, but wait – that does not mean declared war; it merely means an actual state of belligerency.  And for the foreseeable future we’re always on a war footing with almost anyone we’d care to kill. 

          In other words, foreign assassination, by definition, is a war power.  Which makes it awfully handy to have a perpetual war going.  There is one minor catch; reportedly it is one that does not feel like a war power to the people who implement it, our nation’s professional soldiers.  Seymour Hersh reports that soldiers tend to note the prevalence of untargeted victims who happen to be in the wrong place at the wrong time (e.g. in the car with an assassination target), and end up as collateral damage.  Their killers wearing U.S. uniforms in turn end up feeling as if they are doing the work of either murderers or of policemen who are breaking the rules.  And feelings don’t usually lie. 

          We are also using the secret policemen of the CIA to break some important rules abroad.  There has been a lot of reporting recently about the CIA’s systematic involvement in “rendition,” the practice of abducting someone in one country and taking him somewhere else.  It’s safe to say that it violates any country’s law to kidnap people off its streets without that country’s permission.  But it’s not illegal most places, including the U.S., to hale the victims of illegal foreign kidnaping into court.  This asymmetry was enshrined in U.S. law as early as 1886, in a case involving a U.S. citizen privately snatched from the streets of Peru to face charges in a stateside court.  The Supreme Court held in Ker v. Illinois that this particular form of away game was acceptable.  In that case and subsequent cases, it was held, oversimplifying only a little, that illegally kidnaping people abroad to face domestic prosecution would not invalidate court jurisdiction or give rise to any kind of civil recourse against the capturers.  In other words, even if it violated Peru’s laws to seize Mr. Ker, there would be no undesired consequences here. 

          Until 9/11 U.S. actions recognized as rendition were undertaken only in aid of criminal prosecution.  Even when we captured and brought Manuel Noriega to the U.S., it was to face trial.  And we used rendition to bring people here, not to move them elsewhere.  Of course U.S. law also recognized the immigration-related practices of deportation, now called removal, and also of preventing entry by intercepting undesired aliens in transit and sending them back whence they came, known as refouler.  Exercising our powers of deportation and refouler typically did result in us moving persons to foreign lands, but typically in aid of no more pointed a goal than not having them here. 

          In recent years, though, the U.S. has made two abrupt and complete departures from former rendition policy.  We started snatching people off the street in Country A and moving them to Country B, neither being U.S. soil, and did it as an instrument of pure military policy.  In so doing, we emphatically eschewed anything smacking of either criminal justice or immigration enforcement. 

          Prof. John Yoo of Berkeley, a reliable defender of this Administration’s aggressive expansion of war powers, agreed in a July 2004 piece in the Notre Dame Law Review that this practice cannot be understood or reconciled with U.S. law except as the execution of Presidential war powers.[3]  And this is certain a new wrinkle.  True, the U.S. has historically asserted, virtually without judicial challenge, the obvious power to move prisoners of war seized by our military or allied armies from Country A to Country B.  Indeed, the 1929 Geneva Convention on prisoners of war distinguished “Capturing” from “Detaining” Powers, realizing that the two might not be the same. 

          But it is one thing for our armies to round up suspected members of the Taliban (an enemy militia) in Afghanistan and ship them to Guantanamo (technically foreign soil).   It is another to do things like some recently reported renditions:[4] 

           U.S. immigration officials seized Maher Arar, a Syrian-born Canadian engineer, during a layover at Kennedy Airport, handed him over to the CIA, put him in an executive jet, and fly him to Syria where he was beaten for a week with two-inch thick electrical cables, and might have languished there had the Canadian government not protested; 

          In 2001, Sweden turned over to American intelligence Ahmed Agiza and Muhammed al-Zery, asylum-seekers, put them on a Gulfstream, and delivered them into the hands of Egyptian intelligence, which tortured them with electrical shocks for two years.  One was sentenced eventually to 20 years in an Egyptian prison.[5] 

          CIA operatives grabbed Osama Moustafa Hassan Nasr on a Milan street, bundled him off to Aviano airbase, and sent him via Gulfstream to Egypt where he was tortured with electric shocks, and hung upside down and subjected to extreme temperatures and noise that damaged his hearing; 

          In the runup to the Iraq war, the CIA seized Ibn-Sheikh al-Libi, a high-ranking Al Qaeda figure, in Pakistan, put him on a plane to Egypt, where he was tortured and told his interrogators what they wanted to hear, that Saddam Hussein had offered to train two Al Qaeda operatives in the use of chemical or biological weapons.  After that he was shipped on to Guantanamo, where he recanted this now clearly outlandish admission.          

         According to Newsweek in February, the CIA kidnaped Khaled el-Masri, a German citizen on holiday in Macedonia, placed him on a Boeing 737 owned by a CIA dummy corporation, took him to Afghanistan for five months of torture, and then dumped him back on the road to Macedonia.  The person who dumped him reportedly laughed at him and told him not to complain, because no one would ever believe him. But public records about the jet’s peregrinations bear him out. 

          Jane Mayer reported in the New Yorker in February that the CIA seemed to be concealing the whereabouts of at least 100 detainees, which leads to a reasonable guess that many of them have been rendered in this fashion. 

          When prisoners are rendered in this fashion, it is not about getting rid of unwanted guests, it is about torture.  Abu Ghraib and Guantanamo notwithstanding, there remain depths of torture we do not typically plumb.  As explained last time, we cheerfully espouse “cruel, inhuman and degrading” treatment of detainees (or at least we did –  the Administration backpedaled in a December 30, 2004 Office of Legal Counsel Memorandum), but there are some practices we officially eschew.  For certain things too vile even for us, we have the Egyptian Mukharat, and the secret police of Morocco, Syria and Jordan.  Also Uzbekistan, where the torture specialty is boiling body parts, according to Jane Mayer.  Rendering people we have snatched into the hands of these forces for purposes of torture probably violates our obligations under various laws and treaties; it certainly obligates our obligations under the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, which provides in relevant part that U.S. policy is “not to effect the involuntary return of any person to a country win where there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”[6] 

          Word is that the U.S. does receive official assurances of no torture from the countries to which we export our kidnap victims.  But they are worthless, pro forma, and not intended to bind or fool anyone. 

          Now a new form of rendition is coming to the fore, the predictable consequence of the haphazard accumulation of prisoners in our Gulag at Guantanamo, Abu Ghraib, and reportedly at secret locations in places like Thailand.  The fates of these prisoners have diverged over the last four years.  Some have been tortured and interrogated, some have been determined by military commission to have been enemy combatants (or perhaps not, although there are no reports yet of determinations that even one solitary detainee has been found never to have been a combatant), some have been convicted (or acquitted, though I cannot locate a one report of this either) of war crimes, some have most likely been ignored.  Almost all, however, have become unwelcome guests and an embarrassment.  Indeed, now that, thanks to the Supreme Court’s 2004 decisions, they have some access to the courts, it is entirely possible that there could be a meaningful irruption of their grievances in a federal court in one of the many lawsuits brought on their behalf. 

          And so the Government is moving to liquidate the embarrassment.  Starting in March of this year, the Government let it be known that it was planning to ship hundreds of detainees to countries like Saudi Arabia, Afghanistan and Yemen.  Afghans held in Afghanistan would be turned over to their government.  This is something that could not have been accomplished if the prisoners had been kept on U.S. soil; they would have had certain rights under the removal procedures of U.S. immigration law. 

          There was a response to these announcements in the detainee lawsuits pending in the U.S. District Court for the District of Columbia.  The prisoners began to resist being sent home before their due process claims could be adjudicated.  There were decisions by various judges, mostly denying injunctions against repatriation.  Apart from the perennial injunction issue, status quo preservation, these cases turned on what kind of treatment the prisoners could expect when they were returned.  The 1998 law prohibiting return to torture was deemed by the courts to govern. 

          The judges were somewhat skeptical about reassurances of no torture, and so the Government was at some pains to convince them.  The comments of Judge John Bates in a July 2005 opinion may stand for all.  He noted “sworn and unrebutted declarations from high-level Department of Defense and Department of State officials explaining that the United States did not transfer any Guantánamo detainee to a foreign state without first obtaining assurances from the receiving state that it was ‘more likely than not’ that the detainee would be humanely treated upon transfer (the legal standard set out in the regulations implementing the Convention Against Torture).”  This interesting choice of words suggests how gossamer-thin is the assurance we are receiving. The Judge continued: “The declarations further explained that the Department of Defense does not ask receiving governments to detain a Guantánamo detainee on behalf of the United States on foreign soil.” Note that the DOD is not saying the receiving governments positively will not detain the prisoners on their own behalf, nor even that the foreign governments have not promised such cooperation unbidden. 

          In any case, according to a DOD October 1, 2005 press release,[7] DoD has outright released 178 Guantanamo prisoners, and has transferred 68 to other governments (Pakistan, Morocco, France, Russia, Saudi Arabia, Spain, Sweden, Kuwait, Australia, Great Britain and Belgium).  But this leaves approximately 505 detainees remaining at Guantanamo.  There is no word about detainees elsewhere. 

          Behind the vague press releases and statements to the courts, the fact is that we do not know what this massive rendition, already in progress, will amount to.  Unlike the scandalous extraordinary renditions discussed above, this rendition may not be about torture.  It could be about transferring these long-imprisoned Muslim men from one jailer to another, knowing that the second jailer will not be troubled, as the U.S. is, with the pesky writ of habeas corpus.  Or it could just be about releasing wronged innocents in a way that embarrasses no one.  We have no way of knowing now, and maybe will never know. 

          What we do know is that when you play in someone else’s ballpark, the rules can be a whole lot more fun.  Heck, what rules? 

---

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Some Lessons of Katrina So Far

 Published in the Maryland Daily Record September 30, 2005

•           Channelizing and frustrating natural flooding only kills deltas temporarily.  The Mississippi will have its delta back someday.  The seas will pare back and pare back the depleted land until the floods return and heal the delta.  It is only a question of how long and stubbornly we try to prevent the inevitable.

•           As a corollary, therefore, it would be madness to rebuild much of New Orleans.  The next Katrina and the one after that will overthrow our levees, however high we build them.  It is showing no disrespect for the poor, those who occupied the lowlands most devastated by the catastrophe, to say that the lowlands should never be reoccupied; it is only showing a proper respect for what nature will inevitably do in the future.

•           As another corollary, we need to find some other way to handle the commerce that relies on the artificial shipping channels we have carved in the Mississippi riverbed – channelizing that has helped weaken protections even for the parts of New Orleans which ought to be preserved.

•           Preparedness for disasters that will threaten masses of poor people is unworthy the name of preparedness if it does not include detailed plans of how and where to evacuate the poor.  Otherwise, only the better-heeled, those who own their own transport, will get out, and only the affluent will have places to go.

•           “Not In My Backyard” will doubtless often be spoken and whispered now that the poor must be relocated.  So many of us have chosen where to live on the principle that we did not wish to be near the poor.  We will not easily accept the disappointment of finding them nearby after all.

•           Pity for the poor evacuees will soon give way to resentment.  Conservatives are not entirely wrong in maintaining that poverty is not simply a condition imposed upon the poor by the absence of opportunities.  There is usually a self-inflicted component to poverty that is very hard for the better-heeled to understand or forgive.  The anger of the well-to-do at the poor often is resolved by a wrong-headed determination to ignore them. Katrina has made the poor visible and frustrated our society’s ignoble attempt to ignore them; but Katrina has also called attention to the spiritual pathologies of the poor.  It would be wonderful, if unprecedented, if both problems were addressed in Katrina’s wake.

•           A nation at war does not have military resources at home to cope with great disasters in satisfactory time and on satisfactory scale.  And great disasters require military interventions.  Great disasters destroy infrastructure, and once infrastructure disappears, lawlessness beyond the coping powers of any mere police force will always ensue.  This is one reason among many not to have unnecessary wars.

•           With adequate taxes, we could have built up the levees further and postponed (though not permanently averted) the catastrophe, and we could have planned to bring timely resources to bear upon containing the tragedy once it began.  We could even have done something about the poverty that mired so many of Katrina’s victims before they became victims.  But our nation has been starving itself of needed taxes too long.

•           It is sickening, therefore, to watch the tax-cutter-in-chief at a photo opportunity tenderly embracing the victims of his very own policies.

•           Not that George Bush bears most of the blame.  He may have continued and exacerbated the long-standing environmental and social policies that made us vulnerable to a blow we knew nature was bound to strike sooner or later, and probably sooner.  The only blame that falls uniquely to him and his administration was for the slow deployment of available resources once the blow had fallen.  It will be fascinating, during the inevitable Congressional inquiries, blue ribbon panels, grand jury investigations, and litigation that will come, to learn the untold story of the help that didn’t come for five long days, while the bureaucrats whose job it was to assure the flow of help mouthed platitudes and lied.

•           It is heartening to see and hear so many journalists asking angry questions of those bureaucrats.  Ordinarily the dance of the negligent official and the mainstream media interviewer is one of momentous questions met by evasions in which the questioner acquiesces.  There was mercifully less acquiescence this time.  But we in the audience are also aware of how easily this kind of confrontation can descend into schtick on the part of the interviewer.  The bureaucrats will never admit the truth because that is not their thing.  True journalism will largely consist, as it always does, of finding the real answers elsewhere.

•           Real answers often came from do-it-yourself journalism.  Blogs reported on the looting by the New Orleans police alongside the urban poor in real time.  Brave if perhaps crazy amateur cinematographers captured the storm surge up close.  Until the cell towers died, people on the ground told their tales by cell phone.  It was a great day for the unofficial Fifth Estate.

•           Katrina made it plain how central communications are to the infrastructure.  Once the power failed, it was somehow far easier to get information out (except, apparently, to FEMA) than it was to get information in.  And the lack of information in, be it word of the arrival and timing of aid or simply the comforting feed of CNN or cellphone communication with near and dear, was instrumental in the emotional devastation of the victims.  We need to plan ways to keep information coming in even without centrally-distributed electric power flowing through the wires.

•           The storm surge, of course, did its worst not to New Orleans’ urban poor but to the seaside folk of Mississippi who often were the resort rich and the working folk who tended to their needs and entertained them.  Or at least so the media depicted it.  It won’t be easy for anyone, but they will doubtless find it easier than poor New Orleans dwellers to rebuild.  It makes no sense to rebuild the lowlands of New Orleans; it may make greater sense for the leveled Gulf Coast to rebuild if its owners choose to do so.  But they should do so at their own expense and risk.  No seaside location on earth is now safe enough for the financial risks to be legitimately spread to others (except perhaps to other seaside dwellers) through government subsidies or insurance.  If the persons or businesses choose to set up housekeeping by the seaside, they should do so in full awareness the odds are against their homes, bridges, hotels, casinos, and the terra firma beneath them surviving over the long term.  And they should bear full financial responsibility for the consequences.

•           The misery of Katrina has been spread up and down our SUV Nation at the gas pump.  But our gasoline prices have been too low to start with, far too low, to encourage conservation.  A century from now, historians will be at a loss to account for our nation’s lemming-like refusal to limit gasoline consumption or to pursue effective substitutes for fossil fuels.  Petroleum, natural gas, and coal are going away, and yet as a civilization we are acting as if they were permanent, and permanently plentiful.  To preserve our access to the Middle East’s oil, we have engaged in reckless efforts to establish an imperium that, inevitably, has brought down the wrath of the empire’s subjects upon us.  In order to withstand that wrath, we have diverted far too many of our nation’s military resources and civil defense resources.  Whatever the full explanation for the help that took five days to arrive while all hell broke loose, part of it will inevitably be that our National Guard was largely deployed abroad and Homeland Security was too absorbed in preventing terrorism. And so, with utter predictability, out of our effort to protect low gas prices and plentiful supplies of gasoline has come our diminished ability to cope with Katrina.  And out of that diminished ability has come — higher gasoline prices.

•           In the weeks and months ahead, we will learn much, much more.  But Katrina, has already shown she holds huge lessons for us, and they are both perennial and urgent.  We should be respecting nature more, and not trying so very hard to bend it to our commercial purposes.  We should be recognizing the coming demise of a fossil fuel economy, and ending the kind of foreign and military policy that will leave us undefended against nature’s worst.  We should be waging war on poverty again, and not on the poor, and we should be demanding accountability of the rich, not giving them further tax cuts.  There is nothing new in these lessons, but there is doubtless something newly urgent.  They say that hurricanes are increasing in size and frequency; Katrina’s kin will be calling again soon.

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies: A Series

Part 8: Playbook

Published in the Maryland Daily Record August 26, 2005

            Last time, we considered the way the Bush Administration lawyers rearticulated Presidential war powers to enable U.S. forces to capture Muslim men around the world and hold them incommunicado, potentially forever.  We reviewed how this “new paradigm” did not pass muster with the Geneva Conventions or customary international humanitarian law.  What we did not address was why.  What motivated the President’s men to adopt this risky and illegal course? 

            The official rationale was that the detainees were enemy combatants.  The evidence is overwhelming that this was often false, and that the U.S. knew it.  The dragnets that had netted our captives were indiscriminate.  In Afghanistan, our untrustworthy Northern Alliance allies would inform on their rivals, and we would seize them without investigation, often without taking statements from the accusers we could later use.  In Iraq, we followed extremely messy “cordon and capture” tactics bereft of quality control.[1]  (Coalition military intelligence officers later admitted to the International Committee of the Red Cross that between 70% and 90% of the Iraqi detainees had been arrested “by mistake.”)[2]  Consequently, as Eric Saar’s 2005 book about his experiences as a translator at Guantanamo, Inside the Wire, makes clear, many of the captives on his watch there were understandably accused of nothing by their captors.  The White House in truth was not so concerned about keeping illegal combatants out of circulation; its main motive was a quest for “Actionable Intelligence,” meaning under present circumstances advance knowledge of where the next Al Quaeda or Iraqi insurgent blow would fall. 

            Occasionally interrogating Muslim captives did lead to Actionable Intelligence.  The May 8, 2002 capture of Jose Padilla, accused of being sent to the U.S. to deploy a “dirty bomb,” was reportedly the result of such questioning.  (Whether this was actually Padilla’s objective remains undetermined, but his arrest, a form of “Action,” could at least be credited to interrogation intelligence.)  Other intelligence coups may well be unreported.  But mostly the information obtained was trash.  Alarmed, the Bush Administration dispatched a CIA analyst to Guantanamo in the Fall of 2002.  As Seymour Hersh reported,[3] the analyst concluded that more than half the detainees did not belong there.  They were neither jihadis nor possessed of Actionable Intelligence.  Rather than accept that it had been barking up the wrong tree, the Bush Administration decided to fix the problem by intensifying the interrogations. 

            The Administration already had legal clearance.  Marking out the contours of torture like the boundaries of a minefield, we were deemed free to do everything else, no matter how inimical to American values or international standards, to force our captives to talk.  The key rationalizing came from Jay Bybee of the Office of Legal Counsel (since rewarded by being elevated to the 11^th Circuit bench).  In a lengthy August 1, 2002 memo to Presidential Counsel (now Attorney General) Alberto Gonzales — a memo which the Administration refused either to classify or to make available to Congress, although leaks unmasked it — Bybee parsed out the definition of torture so it consisted of very little.  It was not merely a matter of inflicting pain or discomfort or mental anguish to make someone talk; it had to be pain of a “level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of bodily functions.”  That memorable phrase had been wrenched out of context from statutes defining pain whose emergency palliation Medicare reimburses.[4]  But there is a world of difference between policies about pain we pay to alleviate and policies about pain we choose to inflict.  The moral implications are quite distinct.

             In fact, precisely because of its moral aspect, recognizing torture is like recognizing pornography.  To paraphrase Justice Stewart, we know it when we see it.  And torture we know by the line from a thousand old war movies: We Have Ways of Making You Talk.  Any pain, discomfort, mental anguish, or threat of the above, inflicted to force talk from a prisoner who wishes not to talk — that’s torture, and we all know it, and shame on anyone who says otherwise.  It has nothing to do with whether it makes the prisoner feel as if his kidneys are failing, or whether statute or treaty has described the exact way the anguish was inflicted.

             And every time, despite Bybee’s (dare we say it?) painstaking and tortured analysis, Bybee nearly found himself acknowledging this plain truth, he escaped by playing his trump card: Presidential warmaking power, the Bush lawyers’ talisman.  Torture, it seems, is a right constitutionally guaranteed our President in his role as Commander in Chief, in charge of our Nation’s defense.  Bybee commented that torture of individuals possessing foreknowledge of imminent attacks “would be justified under the doctrine of self-defense.”  “If hurting [the prisoner] is the only means to prevent the death or injury of others put at risk by [actions of co-conspirators], such torture should be permissible, and on the same basis that self-defense is permissible.”[5]

             In other words, the Jack Bauer justification.  For readers living under a rock the last few years, Jack Bauer, the hero of Fox Network’s 24, repeatedly tortures people – mainly but not all bad guys – to elicit information utterly crucial to heading off imminent national catastrophe, the Holy Grail of Actionable Intel.  But at Guantanamo and Abu Ghraib, there have apparently been few Holy Grails.

             Bybee distinguished from torture lesser forms of pressure called “cruel, inhuman and degrading treatment.”  And there you had Bybee’s argument in essence: torture would of course be wrong, but hooray for that cruel, inhuman and degrading stuff.  Unless, of course, we got up that particular morning feeling like Jack Bauer confronting an emergency, in which case the torture was fine too.  Official U.S. policy (though concealed from the U.S. citizenry).

             There followed a lot of memo chatter among military lawyers trying to put this singular distinction into practice.  And at some point Bybee added a second memorandum on specific practices, and soon-to-be federal judge and then Homeland Defense Secretary Michael Chertoff briefed the CIA on what coercive interrogation it could perpetrate. (The Administration is still successfully hiding the second Bybee and the Chertoff memos from us.)  Amongst these memos, there developed a playbook of permitted practices.  The playbook is not possible to summarize precisely, and it is not terribly important to do so, because the metaphysical lawyers’ line between Torture and Not Torture was probably never seriously meant to be observed.

             And even if the lawyers were serious, the evidence suggests Secretary Rumsfeld and his people never meant to play along.  Rumsfeld was upset with the lawyers’ interference anyhow.  On ten occasions in the two months after 9/11, military lawyers had withheld approval of strikes on senior Al Quaeda and Taliban officials so long that by the time approval was received, the targets had moved out of range.  At this point, as Seymour Hersh reports, friendly foreign intelligence services were reporting to us intelligence they had obtained with torture.  A former official told Hersh that they “would tell us, We pulled out teeth and fingers from a prisoner, but we got some good shit.  He’s dead now, but we don’t care.”[6] 

             Hence Rumsfeld insisted upon and received a so-called special-access program.  It was comprised of special operations personnel from the Army and Navy, and CIA officers, and shadowy civilian contractors.  They were given a “black budget” and operated almost without accountability — a fortiori without accountability to the lawyers.  According to Hersh, the SAP “was given blanket advance approval to kill or capture and, if possible, interrogate high-value targets.”  This program, among other accomplishments, organized Guantanamo and Abu Ghraib.

            The key organizers, it appears, were Undersecretary of Defense Stephen Cambone (who brought the SAP into the Iraqi prisons), Lt. Gen. William Boykin (notorious for a speech in which he equated the Muslim world with Satan), and Maj. Gen. Geoffrey Miller (in charge of the interrogation program first at Guantanamo and then at Abu Ghraib).  The world largely came to know their handiwork from photos sampled on Sixty Minutes II on April 28, 2004.  As horrifying as the photos looked – hooded men, men being sexually humiliated in a myriad of fashions, men being terrorized by dogs – they seemed to be approximating, in a rough way, what Bybee had described in his 2002 memo: cruel, inhuman, and degrading, but probably not inflictive of “severe pain.”  Later, we learned of more Jack Bauer-ish behavior: detainees beaten to death, held immobile for hours in the hot sun, stripped and placed in freezing environments, raped, subjected to extreme sleep deprivation and prolonged loud noise, threatened with death by interrogators pointing guns at them, actually shot in non-lethal places, subjected to electric shocks, hung up for hours in excruciating pain.  

            But apparently the SAP brain trust were particularly taken with the very techniques practiced in Abu Ghraib Tier I-A where the notorious photos were shot, and at Guantanamo in Eric Saar’s presence: sacrilege and sexual humiliation. When the International Committee of the Red Cross reported in February 2004 on our various Iraqi detention centers, they noted that at all of them, there seemed to be a single playbook – the real playbook – of practices focusing on the sexual and religious humiliation of those detainees deemed “high value,” i.e. most likely to yield Actionable Intel.  This perverse playbook seems to have been shaped largely in response to a 1973 book, The Arab Mind, reportedly widely circulated in U.S. conservative, military, and expatriate circles before the Iraq invasion.[7] Its author, Raphael Patai, emphasized Arab sexual taboos and fear of humiliation.  Apparently, therefore, sexual humiliation was felt by General Miller and his people to be key to overcoming resistance; hence the forced masturbation, the sexual displays, the adorning of male detainees with female underwear.  

             Lt. Gen. Anthony Jones’ August 23, 2004 internal report cleared General Miller from blame for anything worse than negligence in having allowed these excesses.  However, under the heading of “Coincidence? I think not,” compare the treatment of the detainees at Guantanamo on General Miller’s watch personally witnessed by Eric Saar, right down to the sexual humiliation element, to the treatment of the Abu Ghraib detainees once Miller took charge there (marked by a prolonged early September 2003 visit).[8]  The classic note is sounded in Saar’s account of a female interrogator pretending to sprinkle a detainee’s face with her own menstrual blood to force him to reveal his reasons for attending an American flight school.  This playbook traveled with Miller.  The conclusion is obvious. 

            The official stance now seems to be that we never tortured (except for a few rogue MPs) and now we’re going to stop.  None of this is credible, though it would make sense from a strictly tactical viewpoint not to bother with pursuing unreliable or nugatory intelligence through torture.  (When Mohammed al-Qahtani admitted under CIA torture that he had been intended to be the 20^th 9/11 hijacker, an instance cited by those who think torture sometimes yields Actionable Intel, he was in fact only telling interrogators what they already knew from other sources.)  The fact is, we’re not stopping.  The British paper the Guardian reported in December that torture continues at Guantanamo, and the Washington Post reported in January that the only change in the Iraqi torture situation since Abu Ghraib is that we have largely turned the job over to the Iraqis — and not just any Iraqis, but specifically the very men who used to perform that function for Saddam Hussein. 

            Torture has not made us demonstrably safer.  In Iraq the Jack Bauer justification might apply if torture were leading to us stopping the bombings of our forces.  It’s not; from August 1 through August 11, the date of this writing, 46 U.S. armed forces members have been killed, the majority by bombings, a rate of 4.18 a day.[9]  The Jack Bauer test might even be met if torture had led to the capture of Osama bin Laden, but it hasn’t.  Torture failed to prevent the London subway bombings.  If there is any convincing evidence that torture has stopped even one imminent Al Quaeda atrocity, the government has not shared it.  Torture is the atrocity.  We should never have arrogated it to our war powers.  

---

[1]   Mark Danner, Torture and Truth (2004) at 30-31.

 [2]   Danner at 257.

[3]    Seymour Hersh, Chain of Command (2004) at 2.

[4]   Danner at 119-20.  See, e.g. 42 U.S.C. § 1395w-22, x, dd.  (The language of the statute may have been slightly changed in the interim.

 [5]   Danneker at 153-54, quoting S. Moore, Torture and the Balance of Evils, 23 Israel L.Rev. 280, 323 (1989), which Bybee claims summarizes the belief of “leading scholarly commentators.”

[6]   Chain of Command at 48.

[7]   In fairness, as http://www.meforum.org/article/636 comments, Hersh’s authority for the circulation of the book is thin.  But at least we have, as this website establishes, Norvell B. deAtkine’s introduction to a recent reprint, along with word that deAtkine assigned the book in training Green Berets at the John F. Kennedy Special Warfare School.  See also http://slate.msn.com/id/2101328 , viewed 8/15/05. 

 [8]  The Army’s 2004 Fay-Jones Report  at 57 et seq.

 [9]   See generally http://icasualties.org/ .

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies: A Series

Part 7: Captive Taxonomy

Published in the Maryland Daily Record August 5, 2005

‘Tis expressly against the law of arms; ‘tis as arrant a piece of knavery, mark you now, as can be offert.

Captain Fluellyn in Shakespeare’s Henry V, IV:vii:1-4

            There is, we all understand, something truly new and menacing afoot in this world: a technologically-empowered transnational conspiracy: a movement which takes full advantage of the Internet, the web of international banking, the media, and the sophistication of modern weaponry.  The Islamic Terror Syndicate (a useful name Israeli intelligence gives Al Qaeda and its many cohorts) coolly assesses and uses against us, with barbaric effect, the destructive potential inherent in our transport systems, our utilities, and our urban lifestyles.  If we had not appreciated it earlier, no one could fail to understand its significance when it left its calling card on September 11, 2001.

            In response to this horrifying novelty, the Bush Administration lawyers argued that we in turn needed a “new paradigm” of war-making practice, and a reinterpretation of Presidential war-making powers to make the “new paradigm” possible.  That cure has been worse than the disease.  It makes international outlaws and pariahs of us at a time when we need legitimacy most.  This is a very large subject, and this time we address only one part of it, reinterpretations of the law of war in classifying the Muslim men the Executive has seized from around the globe.  It is not only a matter of how we classify alleged members of the ITS legally – but of who gets to make that classification.

            Throughout the history of the laws of war, the distinction between combatants and non-combatants has always been of fundamental importance.  Captain Fluellyn’s lament quoted above protests the failure of the French to maintain that distinction when, at the Battle of Agincourt in 1415 (according to Shakespeare), they slaughtered mere noncombatant boys in the English supply train behind the lines of combat.  (Spin, it turns out, is nothing new.  The truth, if you care: the English were the ones in that engagement to violate the laws of war, murdering disarmed French POWs to prevent them from taking up arms again.  The slaying of the boys, meanwhile, was probably no more than Shakespeare’s invention to justify the British atrocity — giving Henry V his own “new paradigm” if you like.)[1] Typically, when combatants are captured, they are subject to one set of protections; when noncombatants are captured, they are subject to another.  All captives, however, are subject to protection of some kind.              

            In the modern law of warfare, that protection of captured combatants, also known as POWs, is enshrined in the Geneva Convention relative to the Treatment of Prisoners of War ratified in 1949 commonly known as the Third Geneva Convention.  The United States is a signatory.  Those eligible for its protections include members of uniformed military forces, either regular armies or militias.  The protections include such things as general good treatment during capture, freedom from torture, a determination by a neutral tribunal whether a captive is in fact a combatant, ability to communicate with family, access to the Red Cross, and due process in prosecution for war crimes.  

            Noncombatants, also known as civilians, are protected by the Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), commonly known as the Fourth Geneva Convention, and these protections include prompt trial on any charges of activity inconsistent with noncombatant status, freedom from torture, freedom from forced relocation, ability to communicate with family, and access to the Red Cross.

            The clear understanding of the conferees who adopted these Conventions was that everyone captured during hostilities is classified either as a combatant or as a civilian.  It is true that not everyone engaged in combat or warlike activities receives combatant protections; persons who operate out of uniform, like spies, persons who come from a country that did not sign the Conventions, and persons who operate in irregular militias, are excluded from the protections of the Third Geneva Convention.  But bearing arms in a manner that falls short of qualifying for Geneva Three protections still leaves one protected by Geneva Four.  If bearing arms in a manner that disqualifies one from Geneva Three protections also violates the law, the Geneva Four civilian protections do not prohibit prosecution; that is why spies can be judicially tried, consistent with Geneva Four.  But even spies, accused or convicted, can claim the benefit of Geneva Four.  All that they are barred from is access to Geneva Three.

            This legal reality did not sit well with the Bush Administration, which deployed its lawyers to nullify, systematically, both POW and civilian protections for anyone thought to be affiliated with the ITS.  And owing to the highly indiscriminate methods by which people were soon swept up in various dragnets around the world in the four years since 9/11, there were a lot of persons the Bush lawyers tried to strip of protection. In their conception, there was daylight between Geneva Three and Geneva Four into which “unlawful combatants” fell.  And in that gap there were no protections, either from forced relocation or from arbitrary, endless detention or from error in deeming them outside the Geneva protections, or, as will be discussed next time, from conduct tantamount to torture.

            The beauty of this conception depended in part upon the power of a nation in wartime to detain hostile combatants.  Because (as the real-life Henry V realized) there is always the risk that a POW will fight you another day if set free, international law has always recognized that POWs can be forcibly relocated and detained throughout hostilities to prevent this.  In the old days, when wars were declared and their endings marked by treaties binding all parties, all wars came to an end, and hence all POWs could look forward to release.  In the present “war,” where no one speaks authoritatively for our adversaries and hence no one can bind them, no treaty can mark its end; hence the “war” will end only when Bush or his successor so states.  Given the unlikelihood of this happening in our lifetimes, being a captured combatant not unlikely becomes a life sentence. 

            Under Geneva Four, to detain forever someone not deemed a POW, the capturing power would have to try the captive under criminal laws.  But “unlawful combatants” unable to appeal to Geneva Four get whatever process George Bush says they do.  The Bush lawyers provided for military commissions to “try” the alleged ITS captives: Executive branch officials reviewable only by Executive Branch Officials using rules which were a mockery of due process even under military protocols – when and if they chose.

            The Bush lawyers have supplemented their legal novelties of “unlawful combatant” and ad hoc military commissions with the nervy claim of a Presidential war power to prohibit all judicial review of their application of this concept.

            The development of the Bush doctrine of unreviewable, Geneva-less detention was fleshed out in a collection of memos among White House lawyers.  These memos, among White House Counsel Alberto Gonzales, John Yoo and Jay Bybee of the Office of Legal Counsel, Attorney General John Ashcroft, and State Department Counsel William H. Taft IV, generated between 9/11 and February 7, 2002, have been widely reprinted.[2]  Selections are appended to at least three trade books on the mass detainment and torture, and the documents are widely available on the Web.  The reason for the wide dissemination is clear: the bloodless analytical way in which these lawyers are justifying an outrage is horrifying.  You can’t look away.  The fact that the victims of this outrage may have been involved in perpetrating outrages themselves obviously does not justify the legal abomination being created, nor detract from the sick fascination of the enterprise.

            The authors fully understand that what they are proposing may be viewed as criminal under international and domestic law.  On January 25, 2002, for instance, Gonzales recommends that Bush make a finding that Geneva does not apply to the Taliban, because that finding “substantially reduces the threat of domestic criminal prosecution under the War Crimes Act.”  And State Department counsel William H. Taft, IV, sends Gonzales a memo on February 2, 2002 which comments: “Agreement by all lawyers that the War Crimes Act does not apply to our conduct means that the risk of prosecution under that statute is negligible.”  Which is susceptible of being translated If we all tell the same lie loudly enough and with a straight enough face, we’ll get away with it.

            Over Colin Powell’s objections, Bush by memo of February 7, 2002, signed on to the recommendations of his lawyers.  And the game was on.

            The game, as we now know, included rounding up Muslim men from all over the world and herding them into detention centers.  It offended Vice President Cheney when Amnesty International in its May 2005 Annual Report compared the centers to the Gulag system, so let’s not do that.  What we can agree on is that the U.S. detention centers, at Guantanamo, at Abu Ghraib, at Bagram Air Base, at U.S.-based military brigs, and reportedly in obscurer locations, feature imprisonment far from home, denial of contact with relatives, counsel, the outside world, limited contact with the Red Cross (or Red Crescent), interrogation incorporating what most of the world recognizes as torture, and little meaningful adjudication and review.  Walks and talks and squawks a bit like a Gulag, but hey, let’s not offend Cheney, an objective man who would certainly acknowledge an apposite comparison were one offered.

            The misery that prevails in this, er, non-Gulag has been well detailed in many places including the various official military reports that have emerged from Guantanamo and Abu Ghraib, in Guantanamo translator’s Erik Saar’s 2005 book, Inside the Wire, in Seymour Hersh’s 2004 book, Chain of Command, in the reportage of Jane Mayer in the New Yorker.  The alternative effects of our prison camps on the detainees seem to consist either of making militants where none existed before, or sheer soul-rot.  Defenders of the, er, system say that we should not be apologetic for sacrificing the physical and mental well-being of potentially innocent people for our own security.  But the notion that having been attacked means you never have to say you’re sorry pales against what most of the translators Erik Saar worked with saw was obvious: that many if not most of the detainees at Guantanamo were neither terrorists nor sources of useful intelligence nor in fact being interrogated much.  They were simply being allowed to rot because no one wanted to face the political questions that would be raised if they were released.[3]  Secretary of Defense Rumsfeld called them “the worst of the worst” without having tried them – and he was the last level of appeal from any tribunal that might ultimately test the truth of that proposition.

            Eventually, despite the heroic efforts of the Administration to prevent intervention of independent lawyers and courts on behalf of the condemned – uh, detained, the courts were invoked.  In two June 28, 2004 decisions, Hamdi v. Rumsfeld, and Rasul v. Bush, the Supreme Court upheld the availability of habeas corpus to detainees at Guantanamo and at the Charleston, S.C. naval brig.  Michael Ratner of the Center for Constitutional Rights, a lawyer for the Rasul petitioners, observed of the mere grant of cert that: “The administration saw this decision – even to review their position that no court had jurisdiction – as a slap in the face.  High officials were really shocked by the notion that the Supreme Court could review, and perhaps prohibit, decisions that the president, the commander in chief of the war on terrorism, was making.  They believe that the president can do whatever he wants in that war, and that no court in the world can tell him otherwise.”[4]

            Just what the courts are really prepared to tell the President remains to be seen.  Hamdi and Rasul did not directly come to grips with the central taxonomy issue: the Administration’s contention that “unlawful combatants” may be detained without Geneva protections (or Constitutional due process, court martial procedure, or international customary law).  Rasul did eliminate a secondary taxonomy contention: the view that Guantanamo, being subject to some vestigial Cuban sovereignty, is not U.S. soil and thus a place where the Government can detain persons without access to habeas corpus.  Rasul and Hamdi do hold that meaningful and judicially reviewable tribunals must determine “enemy combatant” status, and this, if fully implemented, takes away some of the reason for and effect of the Bush lawyers’ efforts to open daylight between Geneva Three and Geneva Four.  Moreover, they strongly hint that the detainees have constitutional due process rights.  If the net effect is that the detainees can obtain meaningful and neutral hearings on their claims not to be enemy combatants, the “unlawful combatant” taxonomy will lose much relevance to detention — at least going forward, although most of the detainess will have lost years of their lives before that.  But the proof is in the pudding, or here, in the remand.

            In light of this ruling, the Pentagon revised its rules for the tribunals, beginning to make them resemble more impartial vehicles of due process, and the litigation concerning them was concentrated in the District Court for the District of Columbia.  Skirmishing has been going on there.  During this phase, the Government has been trying to moot out many of the cases.  Some detainees have been released.  Tribunals have been held for all Guantanamo detainees and determined that the rest are all, with one or two exceptions, enemy combatants.  And on March 11, 2005, the New York Times reported that Donald Rumsfeld had hatched a plan to transfer half the detainees to prisons in Saudi Arabia, Afghanistan and Yemen.  A series of preliminary injunctions stopped some but not all of that.  And on July 15 of this year, one panel of the D.C. Circuit upheld the Bush doctrine of Geneva-less, and separation-of-powers-less standards for the Guantanamo commissions.  A cert petition is promised.  The story of this effort to expand Presidential war powers clearly has many more twists and turns in the immediate future.

            One is the struggle with the International Committee of the Red Cross.  The ICRC, tasked by the Geneva Conventions as the primary expositor and protector of international humanitarian law, has, for some years before 9/11 or the U.S. response, been engaged in creating a restatement of customary international humanitarian law.  The ICRC takes the stance that customary laws are binding on all nations regardless of whether they sign treaties or not.  The two-volume restatement, Study on Customary International Humanitarian Law, came out this March.  Its161 Rules would absolutely foreclose the approach taken by the Bush lawyers.  Rule 4 defines “armed forces” in a way that may be consistent with the Bush approach but Rule 5 categorically states: “Civilians are persons who are not members of the armed forces.”  No third category.  It can be small surprise that on April 11, two lawyers from previous Republican Justice Departments wrote in the Wall Street Journal that the Study was anti-U.S. advocacy, and that the U.S. should cut off funding to the ICRC, presumably on the well-known principle that silencing your critics makes everything ok.  If the first thing you do is kill all the international lawyers, then you can have whatever international law you want.

            Or maybe you just have lawbreakers and their mouthpieces running a Gulag, and international law be damned.

            But we had better be prepared for the consequences.  Someone, somewhere, is going to try us, quite seriously, for war crimes.  And somewhere else, someone is going to commit war crimes against our soldiers because we fail to recognize their own combatants as POWs.  Part of our rationale for not treating the Taliban as POWs, for instance, has been that Afghanistan, whose armed forces the Taliban effectively supplied, was a “failed state.”  Yet, as Judge James Robertson of the U.S. District Court for D.C. pointed out, the warlord militias who captured U.S. Warrant Officer Michael Durant in Somalia in 1993, in an incident given wide exposure in the book and movie, Black Hawk Down, were not a state either.  The U.S. nonetheless demanded assurances that Durant be treated according to Geneva Three.  Why should a militia to whom we do not accord Geneva Three treatment be bound to give our soldiers that treatment?  There is no good answer.

            Bush and his lawyers will probably not be in power when that happens.  But the time will come when their expanded war powers will become war impotence.  And it won’t be pretty.

---

[1]   See here .  Justice Kenneth J. Keith of the New Zealand Court of Appeal traces Shakespeare’s reference to the boys to Holinshed’s Chronicles, but significantly, in those chronicles the boys apparently ran away.  K.  Keith, Rights and Responsibilities: Protecting the Victims of Armed Conflict, 48 Duke L.J. 1081, 1086 (1997?).

[2]   At the time of writing this, I was especially using Mark Danner’s Torture and Truth (2004).

[3]  So concluded the  Army’s 2004 Fay-Jones Report at 38-39.

[4]   M. Ratner & E. Ray: Guantanamo: What the World Should Know at 83 (2004).

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies: A Series

Part 6: War Off the Books

 Published in the Maryland Daily Record July 8, 2005

            The chefs who cooked the Enron books well understood the principle: to make something disappear (a $1.2 billion-dollar loss, just to choose a wild example), have it occur off the books, on someone else’s balance sheet.  This approach works equally well if you want to make a war disappear.  Say you’re the President of a well-known North American country and don’t want to have to take the hit for bombing or assassinating or overthrowing someone, or committing genocide or scorched-earth ecological destruction.  Do you let some fusty constitutional technicality about the power to declare war belonging to your Congress or some high-minded but impractical international law requiring open declarations of war before the commencement of hostilities get in your way?  Please, that is so 18^th Century!

            No, for at least the last half-century the American way to skin this particular cat has been twofold: train homegrown warriors whose activities we can deny, and sponsor foreign warriors whose activities we can disavow. 

            When it comes to our own forces, we’re talking about covert, not merely clandestine activity.  The distinction: Clandestine activity may be hidden, but it is employed against openly acknowledged adversaries; covert is where we’ve never admitted to the world we’re treating someone as an adversary at all.  See 50 U.S.C. § 413b(e).

            Obviously it’s tough to employ conventional armies and navies both directly and covertly at one and the same time; all those personnel and all that hardware tend to attract notice, and so it is seldom done.  (One exception: the 1970 bombing of Cambodia, carried out by conventional forces, that is, Air Force B-52s, was covert, at least as to Cambodia with which we were not theoretically at war, though it was merely clandestine as to North Vietnam, an acknowledged enemy whose supply lines we were trying to hit.)

            Special forces (Deltas, SEALs, Green Berets, Rangers and the like) and shadowy warriors attached to the CIA Directorate of Operations actually can do the covert thing in the field.  That said, these forces seldom engage in warfare that is simultaneously direct and covert.  They have a lot of overt and clandestine missions;  light-infantry shock troop operations, establishing beachheads behind enemy lines until the heavier forces arrive, a la Rangers; underwater demolition like the SEALs; precision shooting to kill the hostage-taker but not the hostage, like Deltas, and clandestine guerilla operations.

            But the same skills can be and have been used to perpetrate covert warfare.  The Iranians know.  In 1954 militarized elements of the CIA directly carried out attacks that helped return the Shah to power, and after the Shah’s overthrow, in the late 1980s SEALs reportedly continually covertly boarded, mined and sank Iranian craft that threatened the oil commerce in the Persian Gulf.

            And the Special Operations Command (which since 1987 has run most Defense Department special forces) makes no bones about its capabilities this way.  In its 2003-04 “Posture Statement” the Command proclaims: “Special operations are operations conducted in hostile, denied, or politically sensitive environments to achieve military, diplomatic, informational, and/or economic objectives…. These operations often require covert … capabilities.”[1]         

            The special forces usually don’t go it alone, however, and the public record discloses few instances in which special forces were later revealed to have served as covert armies waging their own wars.  Instead they tend to act as a force multiplier, teaming up with local insurgencies which can be trained, supplied, and often directed, but disavowed.  Perhaps the most notorious instances were the CIA paramilitaries’ equipping and training of the Cuban exiles in 1961 to conduct the Bay of Pigs invasion (which there was a game though futile attempt to keep covert), and the CIA’s heavy role in covertly equipping and training the anti-Soviet forces in Afghanistan in the early 1990s.

            The CIA’s role in Afghanistan during the Soviet occupation of the 1980s was exhaustively detailed in Steve Coll’s 2004 book Ghost Wars.  Taking to heart the Hebrew proverb that my enemy’s enemy is my friend, the CIA decided that it should team up with Pakistani and Saudi intelligence in supporting Pashtun Muslim fundamentalists in their attacks on the Soviet occupiers.  We supplied Stinger missiles, money, and knowhow, and eventually the Soviets withdrew, leaving their puppet Najibullah in place for a while.  During that interim, CIA and the State Department staged a tug-of-war over whether we should be continuing to support the fundamentalists, by now known as the Taliban, or should throw our support to more secular warlords.  This was in the face of the increasingly hostile face shown the U.S. by the fundamentalists, and in particular by Osama bin Laden, who by then had emerged as one of their principal financiers and an organizer of international support.  It was in the face, too, of the increasingly obvious entanglement of the Taliban with international terrorists who were using Afghanistan as a training ground.

            The CIA won.  The covert warriors of CIA held their noses and kept telling themselves – until it was far too late – that at least the Taliban were an improvement on the Soviets and on the old traditional warlords.  Certainly they were an improvement from the point of view of Unocal, which worked hand-in-glove with the secret U.S. policymakers in hopes of building a natural gas pipeline through Taliban-controlled areas of Afghanistan.  Driven originally by our interest in defeating the Soviets and later by our desire to stay in the good graces of Pakistan and Unocal, we felt privileged to weigh in semi-secretly against the civil and religious freedoms of all Afghans.

            As the latter instance revealed, the people our special warriors get into bed with may not be very savory.  In Douglas Walker’s 1994 book The Commandos, there is a detailed account of the annual Green Beret training exercise known as Robin Sage, which among other things specifically prepares Green Berets to work with local guerillas who may be larcenous, murderous, dishonest, and thoroughly untrainable in respect of observing human rights.

            But the lion’s share of the covert warfare is conducted not by making war, directly or indirectly, on other countries.  Instead, our Special Forces, the CIA paramilitaries, and thoroughly conventional U.S. forces, train and supervise wars by foreign governments upon their own citizens.  That is where the real action lies.

            The marquee institution for fostering this kind of warfare used to be known as the School of the Americas.  In 2001, to douse the political firestorm around the School, it was renamed the Western Hemisphere Institute of Security Cooperation.  It still has the same mission, the same faculty, the same kind of student body, and an only superficially redesigned curriculum.  So let’s just call it SOA.  You can read all about it in Lesley Gill’s 2004 book, The School of the Americas.  At SOA, the elite military and police forces of friendly Central and South American countries come to learn military techniques, military leadership, and how to fight their special sort of war.

            As Gill points out, for SOA and its students, there’s always a war on.  From the time of the founding of what became SOA in 1947 until the early 1990s, the official enemy was communism, thought to threaten our southern neighbors.  Even before the rise of Casto and the triumph in Nicaragua of the Sandinistas, Washington had concluded that without constant intervention, the Western hemisphere would end up transformed into a series of Soviet client states.  The U.S. was not opposed to this outcome merely on the basis of ideology; we also had significant business interests to protect.  A notorious example was the interest of United Fruit, in whose honor the CIA staged a coup in Guatemala in 1954 against a popularly-elected government that was involved in expropriating United Fruit’s plantations.  That government was falsely proclaimed by the Dulles brothers, who respectively ran the CIA and State Departments, as communist.  The coup which brought it down was falsely presented as having been entirely an internal matter, instead of completely bought and paid for by the CIA (and United Fruit).  Later on, the enemy in our Latin American proxy wars became drug interests.  (Although not, ironically, in our underground wars in Pakistan and Afghanistan, where the drug interests were frequently sponsored by us.)                                                                                                       

            From the start, however, the Latin militaries and their U.S. sponsors had other targets as well – and not just in guerilla insurgencies suspected of Communist leanings.  As Gill writes: “Communist subversion became defined as anything that challenged the status quo, and broad sectors of the population – students, activists, trade unionists, peasant organizers, and religious catechists – came under suspicion.”[2] Which explains why, to choose two instances among hundreds, two graduates of the SOA were involved in the murder of Archbishop Oscar Romero, and perhaps as many as 18 SOA alums were in on the 1989 murder of six Jesuit priests, their housekeeper and her daughter in El Salvador.  But it went beyond mere conventional left/right politics.

            Less well-known here than our own country’s race problems are the racial issues underlying the whole structure of Latin American society and in particular the class structure within its militaries. Frequent atrocities committed by Latin American militaries, generally under the guidance of SOA graduates, can only be explained as a war against indigenous Native American populations.  Sometimes this is as blatant as the 1980 massacre of the entire Salvadorian Indian village of El Mozote (approximately 800 people) by soldiers; 10 of 12 of the leaders were SOA graduates.  Sometimes it is more subtle, as in the drug wars in the Putamayo region of Bolivia, where, as Lesley Gill describes, in the last six years massacres and herbicide fumigation have driven indigenous farmers from large areas and left the survivors destitute.  The massacres are carried out by paramilitaries closely associated with the Bolivian army, and the unit commanders in the Army are working closely with U.S. advisers sent direct from the SOA.

            The SOA and affiliated training programs quite explicitly pursue the objective of building close ties among Latin American militaries, and of coordinating them under U.S. leadership – a leadership that understands full well that if the armies involved are not fighting each other (and they generally do not), the only possible adversaries left for the trainees are the citizens of those very countries from whose armies and police the trainees are sent.  To that end, the SOA curriculum includes interrogation techniques which theoretically no longer include torture – but certainly used to.  The SOA was greatly embarrassed when only partially redacted versions of the manuals were made public in 1996, and they were found to contain directions for torture, assassination, and blackmail.  While those manuals are no longer used at SOA, it is rumored that the training in these dark arts has simply been shifted to other, less public locations.

            How could this happen?  Certainly nowhere did the U.S. Congress or public decide to wage war on indigenous peoples, intellectuals, unionists, and clergy to our south, any more than we ever resolved to aid religious fanatics who would impose the burqa on all female Afghans and deny them educations, and any more than we publicly decided to be of material assistance in the development of Al Qaeda.  Yet this is exactly what our wars off the books have done.

            The trouble lies in what Lesley Gill calls a culture of impunity.  The reason we conduct both covert wars and proxy wars is that we want not to be accountable for them, either to our enemies or to our own citizenry.  We train and direct militaries like the South American militaries, which have their own preexisting culture of impunity – almost total lack of accountability no matter what breaches of constitutions, human rights or social order they perpetrate, and the game goes on.  These militaries may commit atrocities in their own name.  For instance, SOA graduates include such luminaries as Manuel Noriega (Panamanian kleptocrat and drug dealer), Leopoldo Galtieri (architect of the Argentinian dirty wars), Roberto D’Aubuisson (who ordered the murder of Archbishop Romero), and Hugo Banzer (brutal Bolivian dictator).  But they are just as likely to carry out the game through their own proxies, paramilitaries and killing squads that provide their own level of deniability and impunity.

            Once we start sponsoring such people, we are deluding ourselves if we think they can be controlled.  We sponsor not only the Latin militaries or Pakistani intelligence or the Taliban but also the people they work with – the kind of people who would rape and murder nuns – or crash jetliners into the World Trade Center.  They may be off the books, but they are also off the reservation.  And since we do not officially sponsor them, we cannot hold them accountable.  Of course, in theory, we cannot be held accountable, either.  We have impunity.

            Except that maybe our own impunity is wearing off.  That was the point Osama bin Laden made repeatedly, for instance in an interview with Al Jazeera in October 2001: “We treat others like they treat us.  Those who kill our women and our innocent, we kill their women and innocent, until they stop from doing so.”  We can of course disagree with bin Laden on the specifics of U.S. policy that reportedly enrage him, and note that they do not seem to relate much to innocent victims of our policies, nor does bin Laden seem to have been personally a victim of the killing of “women and innocent.”  His invocation of such offenses may in that sense be opportunistic.  But we can hardly dispute this specific point: that all over the world “women and innocent” have died in our off the books wars.  9/11 was surely mostly payback for other things, but there is every likelihood it included payback for our Enronized wars as well.

            And make no mistake: the El Mozote massacre of 800 Indians with U.S.-made weapons perpetrated by troops led by U.S.-trained officers[3] cannot have felt much different to the Indians from the way 9/11 felt to us.  The wholesale destruction of Putamayo cannot have felt much different.  And when we create these grievances, we cannot count on our geographic isolation or our personal innocence or our military strength to protect us any more. In our newly interconnected world, revenge no longer requires an army.  And even setting revanchism aside, it is hard to justify, from any strategic calculus, making ourselves hated gratuitously.

            And gratuitous is the word.  Our record in waging war off the books is one of almost universal failure.  Where are the successes?  The Bay of Pigs?  The drug wars?  Iran-Contra?  In truth, these adventures almost always end badly.  All we end up doing is playing ball with people who commit atrocities, en route to precipitating some kind of U.S. policy failure.  Most of the time, therefore, no serious case can be made that the ends end up justifying the kind of means under discussion here.

            There is, to be sure, an argument that we have had successes.  Apart from Cuba, Communism has never established itself in Latin American; could that not be partly the result of our proxies’ overthrowing legitimately elected but leftist governments in Guatemala (1953), in Guyana (1964), and in Chile (1973), and waging Argentinian dirty war in the 70s and 80s and manning the Salvadorian death squads in the 80s  among their many other accomplishments? There are multiple refutations: the historical record does not credibly make the overthrown governments out to be Communist, and the kind of governments we tried to prevent were exemplified in one that prevailed despite us, the Sandinistas of Nicaragua, who certainly never became a vector of the Communist virus.  Most of all, we now know that our critique of Communism was utterly correct: it did destroy prosperity when it stamped out market economies, and it did perpetrate such violations of human rights, in short it did contain such contradictions that it was bound to fall on its own. So even if Communism had spread, we can now see, it would have died just as it did in the old Soviet Union.  The near-disappearance of the Communist threat in our hemisphere is no evidence of the success of our Enronized warmaking, just of what was going to happen anyway.  But in struggling to prevent what was never destined to come to pass anyway, we squandered our resources and our moral standards.

            Could it be, therefore, that the secrecy and the lies are themselves the problem?  That if we engaged in no wars except the wars we openly waged ourselves, and submitted those wars to open debate before beginning them, we would end up doing far less harm both to ourselves and others?  The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, known as the Church Committee issued reports in 1975 and 1976.  The Committee well articulated the problem: “In its consideration of covert action, the Committee was struck by the basic tension–if not incompatibility–of covert operations and the demands of a constitutional system. Secrecy is essential to covert operations; secrecy can, however, become a source of power, a barrier to serious policy debate within the government, and a means of circumventing the established checks and procedures of government. The Committee found that secrecy and compartmentation contributed to a temptation on the part of the Executive to resort to covert operations in order to avoid bureaucratic, congressional, and public debate.”  A result of the Church Committee was the creation of Senate and House Committees to oversee all covert activity, and the institution of a regime of secret court orders for certain activities.[4]  This was a reasonable compromise, although there has been at least one notable failure of the Executive to abide by it: Iran Contra, i.e. the movement of profits from illegal sales of arms to Iran into the pockets of the Nicaraguan Contras, a right-wing paramilitary Congress had specifically directed the Reagan administration not to fund.

            But all the Church Committee’s work accomplished, in any case, was a compromise. Covert consultation with Congress is not consultation with the American people.  And we can draw almost no consolation from it, because it does not address the problem the Church Committee put its finger on: it runs contrary to the checks and balances of our constitutional system, blocks serious debate, and becomes a vehicle, as a direct result, for the Executive doing things it knows would not pass muster were a debate to be held.  Our Enronized wars have repeatedly put us on the side of torturers, rapists, murderers, kleptocrats, and totalitarian thugs.  They have made a mockery of the very ideals we claim to be submitting as a model for the world.  And they have reaped no gains or small gains for us.  And the small gains, like the driving of the Soviets from Afghanistan, have only set the stage for catastrophically worse impacts upon U.S. interests.  And when we ask why so many in the world hate us, we need to eschew inane comments like we are hated for our freedoms, and look at more obvious reasons, including the killing of women and innocents in our Enronized wars.

            War off the books has been a failure, morally and practically.  As a nation, we need to reexamine fundamentally whether we should ever, under any circumstances, allow it at all. 

---

[1].  This statement is no longer posted, as it was when the piece was written.  It’s current (as of 2010) successor is to be found here.  While it does not use the same language, the same message is apparent.

[2].  Gill at 73.

[3].  E. Alterman, When Presidents Lie (2004), as Page 259.

[4].  See also PL 95-511.

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies: A Series

 Part 5: Outgunned

 

Published in the Maryland Daily Record June 3, 2005

 

             As the Vietnam War raged, and the damage it inflicted upon the United States mounted, the War’s opponents besought the courts to call a halt.  This should not have been hard.  After all, there was no declaration of war, and the Constitution required a declaration of war to authorize the prosecution of one.  This presented a ready-made constitutional issue by which the aid of the courts could — in theory — be invoked.

            Accordingly, draftees, reservists, taxpayers, members of Congress and others, in numerous lawsuits, asked courts to address the simple proposition that Vietnam was unconstitutional because not declared.  These efforts came to nothing.  District and circuit judges would either hold the plaintiffs wrong on the merits because of the Tonkin Gulf Resolution and the other “imperfect war” authorizations Congress had given, or they would hold that whichever case was before it was not the right case.  The reasons varied.  Some plaintiffs would be held to lack standing.[1]  Sometimes the government would be found immune to suit.[2]  Sometimes the question the plaintiffs attempted to raise would be deemed political and hence not justiciable.[3]  At least the lower courts had to and did rule; the Supreme Court was AWOL. Throughout the Vietnam era, it never agreed to hear a single case in which the constitutional legitimacy of the War was challenged as being beyond Executive powers.

            This unwillingness of the courts to act did not go unnoticed in Congress, particularly after it emerged in 1970 that President Nixon had been bombing Cambodia not only without Congress’ approval, but even without its knowledge.  Congress, finally aware that it faced a choice between self-help and no help, took two steps.  It repealed the Gulf of Tonkin resolution.[4]  And, under the leadership of Senate Republican Jacob Javits and House Democrat Clement Zablocki, it passed what became known as the War Powers Resolution.[5]

            Despite its name, the War Powers Resolution was actually a statute, codified at 50 U.S.C. §§ 1541-48.  The Resolution states its ambitious goals in its preamble:

It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of the United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities, is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

To achieve this end, the Resolution required the President to “consult” with Congress, whenever possible, before introduction of armed forces into hostilities or imminent involvement in hostilities, and continuously during the presence of armed forces in those situations.  In addition, the President was required to submit, and to renew periodically, notice to Congressional leaders which explained the reasons and constitutional and legislative authority for such introductions of force, as well as the estimated scope and duration of the involvement of the armed forces.  The “teeth” of the Resolution was a standing requirement that the President withdraw the forces if, within 60 days after the submission of a report, Congress had not specifically authorized that the troops stay.  This was an attempt to forestall any argument that the President’s war-making has been tacitly approved by some other enactment of Congress, like the law authorizing recapture of ships from the French “enemy” in Bas v. Tingy, or the Gulf of Tonkin Resolution.

            Presidents have not liked the Resolution, and have frustrated it where they could, starting with President Nixon, who tried unsuccessfully to veto it.  Compliance mechanisms required by the Resolution were not set in place for two years after Congress passed it, not until there was an explicit Congressional demand.[6]  Only one President, Jimmy Carter, has ever conceded the constitutionality of the Resolution.[7]

            Of course, if Presidents did not acknowledge it, then what?  Stalin, responding to a suggestion that he placate the Church by fostering Catholicism, inquired scornfully how many divisions the Pope had.  Military capacity being the only route to power Stalin recognized, he simply did not care what a Pope lacking that capacity might think.  Presidents have historically been in a similar situation regarding the Resolution.  In our constitutional system, Congress has very little ability without judicial help to bring Presidents to heel.  Even the power of the purse is so shot through with exceptions, with impoundment powers, with black budgets, and with means of spending in spite of Congressional will, that it is of very limited utility.  Courts alone have effective power to trump most exercises of executive power.  And unless the Courts enforce the Resolution, it has exactly as much force as Presidents give it.  This is like giving foxes jurisdiction to determine the validity of rules about henhouses.  And, just as the Supreme Court managed to get through Vietnam without ever ruling on the legality of that War, just so has the Court failed to deal with the Resolution throughout all the presidential warmaking that has passed since the Resolution became “law.” (In fact, apart from cases concerning detainees, the Supreme Court has said nothing significant about Presidential war powers since the Korean War.)

            The result?  Each President but Carter has in turn explicitly or implicitly maintained that the Constitutional clauses making the President the Commander in Chief of the Armed Forces (Art. II, § 2) and the Chief Executive (Art. II, § 1), give the President an unconditional power to commit troops when and how he chooses, a power the Congress cannot constitutionally abridge.

            However, the Supreme Court’s AWOL status on this issue having left not just the Congressional but also the Presidential position unaffirmed, Presidents have had no way of being positive they were right.  This has given rise to a slight hesitancy on the part of the Executive.  The vacuum of decision and Executive hesitancy have left the parties, Congress and the President, playing a delicate game around the Resolution.

            The rules of the game are usually as follows. Presidents: (a) deny the constitutionality of the Resolution, but (b) comply to varying extents with its provisions, while (c) stating that they do so for purposes other than compliance or at least without agreeing that they need to comply.  Congresses: (a) periodically insist that they are in charge under the Resolution, but (b) almost always supply whatever money and authority Presidents ask for.  Periodically Congress will recite its own reliance on the Resolution when voting for the funds, or (and this is rare) voting to curtail funds (e.g. cutting off FY 2000 funds for Operation Uphold Democracy in Haiti).[8]

            Thus there was a refusal to consult meaningfully in advance of the Da Nang sealift (in the Spring of 1975), the Cambodian evacuation (in April of 1975), the Saigon evacuation (in April 1975), and the Mayaguez incident (in May 1975) – although in the latter instance the Ford Administration at least acknowledged its obligations under the Resolution.[9]  There was no consultation on the Iran Hostage operation, notwithstanding President Carter’s acknowledgment of the Resolution.[10]

            The Reagan administration initially complied.  In the detailing of troops to the Sinai peace-keeping force (1982), and the deployment of U.S. aircraft to Chad (1983) Reagan made the necessary reports and received the necessary authorizations.[11]

            Starting with the stationing of Marines in Lebanon, however, Reagan began to resist.  Forces were sent in August of 1982, without a report to Congress, but in August of 1983, when deaths were mounting, and it became clear some kind of Congressional resolution of support would be required, Congress insisted upon, and received, deference to the Resolution, including the right to limit the size of the force there, and the duration of its stay.[12]

            Subsequent military adventures by Reagan and others gradually strengthened the Executive hand. Presidents have consulted with Congress after the fact (Grenada); Presidents have cited treaties or other authority for their actions, and did not acknowledge Congressional action pursuant to the Resolution as their authority, even when they technically remain in compliance (First Gulf War); or simply have not complied at all (El Salvador, where U.S. military “advisors” received combat pay).  Congress has sometimes voted authorization under the Resolution (Second Gulf War, Somalia, Haiti, Lebanon).  But almost nowhere was there any evidence of the shaping of U.S. commitments of force by the Congress as the Resolution was intended to require.  To the contrary, Congressional action often became incoherent.

            Take, for instance, the response of Congress to President Clinton’s commitment of troops to Kosovo, summarized in a 2003 article by Andre Miksha.  First, 36 days after Operation Allied Force began, Congress passed a bill prohibiting expenditures for ground forces without specific Congressional authorization.  Second, Congress defeated a bill to remove ground troops under the Resolution.  Third, Congress declined to declare war on Yugoslavia.  Fourth, the House defeated a bill authorizing air strikes.  In this incoherent tangle of legislation, one finds no provision authorizing the troops to be in Kosovo.  Yet there they were.  Certain members of Congress brought a suit challenging the constitutionality of the continuing commitment of troops under the Resolution, but of course were turned aside for a multitude of reasons including justiciability and standing, and the Supreme Court, aloof as ever, denied certiorari.[13]

            The latest stage in the rout of the Resolution has been the position taken by the second Bush Administration in the wake of 9/11.  Certainly Bush had Resolution-compliant authorization for his early War on Terror activities, as Congress had unanimously passed a bill on September 14 which could reasonably be read to bless the use of military force not only against Al Quaeda, but also against Afghanistan.  But on September 25, John Yoo, now a law professor at Berkeley, then of the Office of Legal Counsel in the Justice Department, issued an opinion in which he stated that Congressional authorization was nugatory because of the President’s ability to respond to sudden attacks.  He reiterated the position in testimony given to Congress on April 17, 2002.  In fact he interpreted the Resolution as acknowledging virtually unlimited Executive war-making power in response to sudden attack.  Formally, this was certainly correct.  Under the Resolution, Presidents have the ability to commit forces first, and make their explanations to Congress later.  But Yoo read the Resolution as acknowledging constitutional Executive authority for any and all possible post-9/11 deployments of force.

            Yoo described constitutional Presidential powers under these circumstances in unlimited terms.  Neither the Resolution nor the September 14 bill could “place any limits on the … amount of military force to be used …, or the method, timing, and nature of the response.”  If Yoo was right, once the U.S. was attacked, the Resolution was irrelevant.  The exclusive power of Congress to declare war was nothing more than the ability to ordain a certain juridical status in the relations between the U.S. and other countries.  In Yoo’s view, this power avoided total lack of consequence only because a declaration of war triggers important effects under the Law of Nations.  (Yoo did not address just how important those effects might remain in an era when ignoring the Law of Nations has become SOP for the Bush Administration — to be discussed in a later piece.)  Yoo’s hard-line position became Bush doctrine.

            Fuller treatment of the way the Yoo approach played out in the invasion of Iraq must await a later part of this series.  But certainly Clinton’s near-defiance of the Resolution and Yoo’s apologia for rendering the Resolution irrelevant underline the fact that the Resolution is effectively a failure.  Without the aid of the courts, Congress is no match for the Executive.  Presidents decide, period.  Congress, outgunned by the Executive and deserted by the Judiciary, goes along.  The Framers would have been dismayed.

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[1].  E.g., Commonwealth of Massachusetts v. Laird, 400 U.S. 886, 887 et seq. (1970) (Justice Douglas’ dissent).

[2].  See, e.g., Luftig v. McNamara, 373 F.2d 664 (D.C. Cir.), cert. den., 387 U.S. 945 (1967).

[3].  See, id.  A relatively concise summary of the arguments as to standing and justiciability can be found in Justice Douglas’ dissent from the Supreme Court’s denial of leave to file a bill of complaint in Commonwealth of Massachusetts v. Laird, 400 U.S. 886 (1970).

[4].  Act Jan. 12, 1971, Pub.L.No. 91-672, § 12, 84 Stat. 2053.

[5].  Pub.L. No. 93-148, Nov. 7, 1973, 87 Stat. 555, codified at 50 U.S.C. §§ 1541 et seq.

[6].  C. Zablocki. War Powers Resolution: Its Past Record and Future Promise, 17 LOYOLA OF L.A. L.REV. 579, 580 (1984).  Representative Clement Zablocki was the Chairman of the House Committee on Foreign Affairs, and, along with Senator Jacob Javits, the principal architect of the War Powers Resolution.  This article, published just after his death, is a most concise history of the Resolution up through the time of the invasion of Grenada, and is liberally cited below. 

[7].  I Pub. Papers fo Pres. Jimmy Carter 324 (Mar. 5, 1977), quoted in (R. Moss), Office of Legal Counsel, U.S. DOH, Authorization for Continuing Hostilities in Kosovo (Preliminary Print) (Dec. 19, 2000), 2000 WL 33716980 (O.L.C.)

[8].  Pub.L. 106-65, Div. A, Title XII, § 1232, Oct. 5, 1999, 113 Stat. 788, as amended Pub.L. 107-107, Div. A, Title XII, § 1222, Dec. 28, 2001, 115 Stat 1253, provided that:

“(a) Limitation on deployment.–No funds available to the Department of Defense during fiscal year 2000 may be expended after May 31, 2000, for the continuous deployment of United States Armed Forces in Haiti pursuant to the Department of Defense operation designated as Operation Uphold Democracy.

[9].  S.DOC. No. 56, 94^th Cong., 1^st Sess. (1975), cited in Zablocki, supra, along wih other facts noted in the same sentence, at 580-86.

[10].  Zablocki, supra, at 586.

[11].  Zablocki, supra, at 589.

[12].  H.R. J.RES. 64.  See, Zablocki, supra, at 691-96.

[13].  Campbell v. Clinton, 203 F.3d 19 (D.C. Cir.), cert. denied 531 U.S. 815 (2000).

Copyright (c) Jack L. B. Gohn

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War Powers, War Lies: A Series

 Part 4: Willingly Deceived

  

 Published in the Maryland Daily Record April 29, 2005 

           Last time, we considered the dishonesty of President Lyndon Johnson in claiming that North Vietnam had attacked U.S. warships on August 4, 1964, and in denying that he would use as a declaration of war the Tonkin Gulf Resolution he sought, supposedly in consequence of the alleged attack.  Appalling though this was, LBJ was merely partaking in an unholy tradition of Presidential dishonesty about matters of war and peace.  It is a tradition with two sides, only one of which is the war lies the Presidents tell us.  The other side is the complementary lies we tell ourselves.  They work well together. 

           A few examples will illustrate the Presidential lies. 

           The start of the Mexican American War in 1846 was one.  President James K. Polk sent General Zachary Taylor and about a quarter of the U.S. Army to show the flag in Texas, then freshly annexed to the United States.  But not just anywhere in Texas: he dispatched Taylor specifically to the north bank of the Rio Grande.  Even granting the Texas annexation a legitimacy the Mexicans categorically denied, there was less legitimacy in Texan and hence U.S. claims to lands between the south bank of the Nueces and the north bank of the Rio Grande – exactly where Taylor’s men were when Mexican forces attacked them.  After word of the attack reached Washington, Polk requested and received a declaration of war, asserting that Mexico had shed American blood on American soil, without specifying where.  Historian General John S.D. Eisenhower has too charitably commented: “The kindest thing that can be said about Polk’s message is that he probably believed it himself.”  Polk repeated the vague assertion a number of times as the war ground on.  In December 1847 Congressman Abraham Lincoln rose in the House to demand that Polk identify the exact spot where the attack had taken place.  He repeated the challenge on two occasions in 1848.  Polk ignored him, and Lincoln’s own patriotism came under fire for having dared to question the President in wartime.  Having successfully used the distortion to stir up public opinion, Polk simply moved on.  His diary revealed that he had been planning to ask Congress for a declaration of war before he had ever heard of the attack anyway.  The truth mattered even less to Polk, perhaps, because after the War, the U.S. did indisputably extend to the Rio Grande.  Victors write the history books. 

           A century later, Franklin Roosevelt had led a recalcitrant nation both into and out of war with steps he did not acknowledge.  Before World War II, he had used sophistry to violate the 1937 Neutrality Act with the Lend Lease program, knowing full well it was likely to lead to war.  He lied to the public about Axis weapons, and promised during the 1940 election campaign that Americans would not be sent to fight in foreign wars while intending and eventually delivering the opposite. 

           One can reasonably argue that these lies going into World War II truly served a salutary purpose, given that World War II was a “right war” if there ever was one, not to mention inevitable, and these lies positioned us better for the war to come.  But Roosevelt’s lies on the way out were for far less admirable goals, and they wrought enormous mischief.  

           In February 1945, with the successful conclusion of the war in plain view, the leaders of the principal Allied powers, Roosevelt, Joseph Stalin of the Soviet Union, and Winston Churchill of Great Britain, met at the Crimean seaside resort of Yalta.  Roosevelt needed to induce the Soviets to join in the war against Japan, and wanted to persuade them to join the United Nations.  The Soviets were agreeable, but demanded and received a quid pro quo: Western acquiescence in Soviet domination of postwar Eastern Europe.  Roosevelt promised not to interfere with the Soviet fixing of the upcoming Polish elections, a fix that would have the result of turning Poland into a Soviet satellite nation.  Effectively, Roosevelt (along with Churchill) sold out Eastern Europe to achieve larger goals.  But that is not what he told the U.S. Congress on March 1, 1945, in a speech to a joint session.  Instead, he said that Stalin had signed on to the notion of a “strong” and “independent” Poland, and represented that there had not even been discussions of the Soviets entering the war with Japan.  A month later he died, leaving his successor, Harry Truman, and the American people, clueless as to what had really been agreed. 

           There were at least arguable “reasons of state” for the concessions Roosevelt made.  And there were apparent good military intelligence reasons for lying about the concessions Roosevelt had received in return.  But the consequences of this act of Presidential dishonesty were utterly poisonous, as Eric Alterman has recently shown.  He points out that when the Soviets collected on their half of the deal, the U.S. public and politicians viewed Soviet establishment of the Warsaw Pact as far more treacherous than it really was.  Instead of coming across as Moscow collecting its fair share of the war spoils and enhancing its security with tacit American assent, this looked to be the opening of a Cold War of Soviet aggression, which in fact and partly in consequence it became.  When U.S. leaders denounced the Soviet takeover of Eastern Europe, this was in turn perceived as double-crossing by the Soviets.  That is not to suggest that Roosevelt’s lies caused the Cold War; but it is arguable that some of the worst excesses could have been avoided.  If Roosevelt had said outright that he had let the Russians have Poland, and if he had told America the reasons why, he might have prevented the internecine U.S. bloodletting that followed during the McCarthy era.  He might have avoided driving the Soviets and Red Chinese into each other’s arms.  It might have been a kinder, gentler Cold War. 

           Similar lies covered up our extrication from war – or in this case near-war — again during the Cuban Missile Crisis of 1962.  We now know that President John Kennedy did not secure the Russian withdrawal of the Cuban missiles merely by being tough and blockading Cuba.  In fact what had really happened was exactly what President Kennedy and his men were then and later so emphatic to deny.  Kennedy had made a secret deal with Soviet Premier Nikita Khruschev under which we in exchange agreed to (and did) withdraw Jupiter missiles from Turkey.  This myth, that by standing tall in the saddle we had cowed the Communists, became part of the Kennedy legend – and part of what LBJ thought he had to live up to when, in early 1964, it sank in with him that America’s South Vietnamese venture was failing.  Johnson expressed more than once the feeling that in handling Vietnam he had to emulate Kennedy’s supposed toughness.  Kennedy had pretended to the world he had been willing to lead America to the brink of nuclear confrontation with Russia.  (“Pay any price, bear any burden.”) Johnson felt he was expected to do the same.  And if he ever forgot, there were both Kennedy loyalists (to whom Johnson would always appear an unworthy interloper) and Republican hawks who would and did remind Johnson publicly. 

           And on the other hand, if Johnson chose to lie, he knew that he could get away with it.  Presidents always get away with it.  The deceptions of President Polk about Mexico and President Johnson about Vietnam bear an uncanny resemblance to the well-known deceptions of President George W. Bush about Iraq.  Over the years the American public seems to have grown no less trustful. 

           Why is this?  I do not think it is simply that, as Bertrand Russell said, “Man is a credulous animal.”  Given our undeniable record of literally hundreds of deployments of military force from the Indian Wars to the present, we are obviously a war-like people.  We like to use military force and we like the things that military force can attain for us.  There is nothing necessarily wrong with that when we are using force to defend ourselves.  But oftentimes (in Mexico and Iraq for instance) we are the aggressor – a label we understandably would rather not acknowledge.  We want to feel good about ourselves, and in Presidential war lies we are never the aggressor. We would rather think of ourselves as being what Ronald Reagan (quoting John Winthrop)[1] called us: A City on a Hill,[2] meaning a place set apart from the rest of the world, distinguished by high purpose and lofty principles, with a God-given mission to set an example to other lands. 

           The reality, however, is different. 

           In fact the hill we sit on was occupied by brutal theft.  Only a tiny minority of our population is comprised of Native Americans, the only truly rightful inheritors of the continent.  The rest of us are here because the founders of our nation and generations of their forbears and descendants took advantage of disease, armed aggression, and broken treaties to wrest the nation and the continent from its original owners.  (If you need a refresher on the subject, visit the new National Museum of the American Indian in Washington, and let the 4^th Floor docents remind you.) 

           In fact we are a nation whose economy was jump-started with slave labor.  We now profess much concern about human rights worldwide.  Yet our national fortune was first made in large part because we tolerated for hundreds of years systematic and blatant abuse of the rights of millions of Africans. 

           In fact we act as a Nation from a keen sense of our own best interest most of the time.  Our foreign policy is not driven by any consistent commitment to peace, justice or democracy.  If it were, then the histories of many lands would be far different.  Imagine El Salvador, Nicaragua, Argentina, Chile or Brazil, to choose some piquant examples, had we not trained torturers and disappearers, and financed the suppression of indigenous tribes, the too-cheap and too-fast exploitation of natural resources, and the corruption of politicians, to smooth the way of U.S. business.  If we had cared as much about simple human decency as we had claimed, then surely we would have come more quickly and effectively to the aid of the Bosnians and the Rwandans, who had the fatal misfortune of having little of commercial value to offer us.  We would have seen to it that the wealth our thirst for oil created in countries like Saudi Arabia, Nigeria, and Indonesia or the wealth generated by our need for the minerals of South Africa were more equitably shared amongst the populace who lacked legal title, but who were the equitable owners of these common resources. 

           In fact, like the nations of the Old World we have often professed to despise, we act on the basis of Realpolitik and shape our principles to our ends.  Scorning Woodrow Wilson’s ideal of “open treaties, openly arrived at,” we do what Roosevelt did at Yalta, and Kennedy with the Cubans: make agreements that receive publicity only if and when it suits everyone’s end to publicize them.  And that is the best-case scenario.  Frequently racism and xenophobia supercede even self-interest.  Our proxy wars in Central and South America against indigenous populations (to be discussed later on) are good examples. 

           And in fact we follow leaders who lie.  Not only the worst of them, but the best of them, lie to us, like (to choose some examples I have already discussed in this series) Lincoln, Roosevelt, and Kennedy.  

           They lie successfully because they say what we want to hear.  We want the wars but not the guilt.  Even when we act like Lieutenant William Calley at the massacre of My Lai, we want to feel like John Wayne in The Green Berets.  Presidential war lies told by Presidential war liars make it possible.  We keep voting for liars to sugarcoat our wars, and we keep getting what we elect. 

           We are usually satisfied.  Yet there is the occasional buyer’s regret.  Next time, we shall see what happened when Congress experienced buyer’s regret after the Tonkin Gulf Resolution. 

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[1]              John Winthrop’s City upon a Hill, 1630. 

[2]              First Conservative Political Action Conference, 1/15/74.

Copyright (c) Jack L. B. Gohn

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Trying to Think Humanely About Terri Schiavo – And The Rest of Us

 

Published in the Maryland Daily Record April 1, 2005

 

          Now that Terri Schiavo is fully dead and gone, the loud national dialogue about her will inevitably die down as well.  A softening would come as a relief.  The loudest voices all seemed to describe Terri and her husband and parents as examples of something, lines in the sand, precedents, not the individuals they were.  Even the comment ostensibly focusing on Terry and her supposed sufferings seemed not to be very tightly tethered to the reality of the remains of the woman in the bed.  More attention to the human realities of this particular situation might have been helpful.  But that should have included all of the realities.

 

          On the one hand you had the husband who had “moved on,” meaning that he was said to be in a marital type of relationship with someone other than Terri (something for which he can hardly be blamed).  He reported, credibly according to the courts, that Terri had expressed a desire not to be kept alive as she was, and he saw himself as discharging his final duty to her to allow her body to complete the process of expiring.  He obviously needed to complete the process of vacating the space Terri had once filled in his life, and to honor her wishes.  And on the other hand you had the parents, who could in the nature of things never cease to be parents the way Michael could and in reality did largely cease to be a husband.  But the parents’ insistence on viewing Terri as someone who could possibly wake up again someday, while forgivable, put them in a false position.  The fight was really over whether Terri should be maintained indefinitely in her persistent vegetative state.

 

          A Wall Street Journal editorial last week and also Journal columnist Daniel Henninger, trying to work through this dilemma intelligently, suggested that a better solution would have been transferring Terri to the custody of her parents, who could have taken the responsibility for maintaining Terri, and allowing Michael to move on.  This would have set to one side the analysis the law imposed on the courts, which was to determine what Terri had wanted when she was a creature who could experience and express wants, and to implement that desire.  Instead, it would focus on the respective needs and desires of the parties now most interested in the situation presented by Terri’s status.  This might have been an improvement over the analysis required by the law.  If the reported neurological testimony is to be believed, Terri was no longer capable of feeling any interest in the situation herself.  Nothing done to her could have caused her either frustration or suffering.  Service to her interests would have been service to a mere abstraction.  Far better, the Journal contended, to serve the interests of those who still had interests, as most often occurs when the courts are not called upon to intervene in the case of those who lack living wills and have left no other direction.

 

          But the Journal’s outlook was too constricted.  Having recognized that the interests of the sentient living should outweigh the strictly notional interests of the insensible living, this approach should not have stopped at Terri’s parents and her husband.  It should have extended to the rest of us as well.  Whatever you wish to call the process of nourishing someone in a permanent vegetative state, whether you call it keeping Terri alive or whether you call it keeping the mere shell of Terri operating, you must acknowledge that it consumes substantial resources.  Of course, given Terri’s totemic status, there would always have been financing available to underwrite the enterprise.  But that is not enough to deflect questions about whether this would have been worthwhile.

 

          We know that health resources, like all other resources, are finite.  For instance, the hospice where Terri was kept had a finite number of beds.  As long as Terri stayed there, someone else who might require hospice care to assist her with consciously-experienced death would be less likely to have a bed available.  Professional literature of the Health Resources Services Administration and of the Hospice Nurses Association strongly suggests that we currently experience a great shortage of both hospice physicians and hospice nurses.  Terri’s continued occupancy of a bed thus almost certainly made hospice care less available to others, and more costly.  (Supply and demand still play a strong though admittedly complex role in the pricing of medical services.)

 

          Each one of us burdens the environment, both the ecosphere and the economy.  It is a legitimate burden; we have a right to be here.  But that right must have some limits.  The position that every human life is so inherently valuable that any and all diversions of resources are justified to maintain it is recognized as absurd in most cultures. We in America have been a bit of an exception.  Even while we have become more accepting of death as a necessity and not an object of starkest fear, that acceptance has always had limits, perhaps because much of the time we can afford to fight protracted duels with death that are simply out of the realm of possibility elsewhere.  (Compare, for instance, the availability of the “cocktail” of HIV medications here and in sub-Saharan Africa, and compare the effects on health outcomes in the two locales.)  We tend to think, therefore, along lines that might be expressed in this way: I will agree that as a theoretical matter death is natural and that it will happen to me and all those I love at some time, but as a practical matter I will keep it from happening by never, ever acknowledging that this is the time.  And I will claim as my right any medical intervention I have the resources to buy for myself and those I love, whatever the cost, to assure that this is never the time.

 

          Such thinking is irrational.  There is a time for everything under heaven, and that includes a time to die.  And sometimes those closest to the situation, the dying and their families, will not acknowledge it.  It is perfectly appropriate to give the rest of us a say: those who will have to bear part of the cost through increased insurance premiums, through higher prices for medical services, through heightened scarcity of those services.  And if Terri’s wishes, as found by the courts, were not to be the lodestar, then not only her family but the rest of us as well should have had a say in whether Terri’s body should continue to graze on the limited commons of available medical intervention.  No man is an island, as John Donne wrote, and there are no completely private decisions.  And if Terri’s parents were, however forgivably within the norms of our culture, being irrational, then the views of the greater society should have had the right and the power to trump that irrationality.

 

          Something like that may have been what really happened.  When the politicians rushed to take away from the Florida courts the power to determine this matter, and that political act failed, there was no sequel.  The politicians read the polls, and saw that they lacked a mandate.  Our human reality was, we as a nation were ready to let go of Terri.  We are wronged and underestimated if this be deemed callous disregard.  It was not.  We often do not care enough, but the nation was fully engaged in this discussion.  The consensus simply was that the claim of those who would have kept Terri’s remaining biological processes going was not valid, that too little remained of Terri to preserve at such enormous effort and cost, even if those who loved her wished to do it.

 

          A predictable response to any admission of a cost-benefit analysis in decisions whether to preserve life is the waving a bloody shirt: the specter of euthanasia being imposed upon the deviant, the disabled, and the poor, upon those who could not afford lawyers like those retained by Terri’s parents.  Obviously, were we ever to abandon the standard of what the person involved would or did wish, we would need to guard against venturing too far down a slippery slope of disregard for the value of human life and human autonomy.  But, given our nation’s political norms, it would seem totally unrealistic to fear greatly that we would venture far.  We all have value, and our society’s laws reflect a strong sensitivity toward that value.  The likelihood that we would forget this is greatly exaggerated.

 

          Another exaggeration is treating death as unacceptable in all circumstances.  To most religious believers, death is the gateway to a far better existence.  And even to those who regard it as the end of existence, it is inevitable; all the headway that can be made against death amounts to postponement.  The value of what is gained by postponement should factor into decisions to expend the resources necessary to make postponement happen.  And the factoring must be done by someone.  It is not inhuman or inhumane to recognize this.

 

          Those who mourn Terri’s passing deserve our heartfelt sympathy.  But it is good that they did not prevail.  Either way, either under the law as it now is or under a hypothetical law that took the feelings and interests of the living more into account, letting her finish her death was the right thing to do.

 

Copyright (c) Jack L. B. Gohn

 

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