Bush’s Dumb War and Obama’s Global Track and Whack War

August 25, 2013 § Leave a comment

Summary

This essay will be my response to Jeremy Scahill,’s book, “Dirty Wars:  The World is a Battlefield”.   The book is a 528 page indictment of George W. Bush and Barack Obama for waging a “Global War on Terror” featuring military invasions of over a hundred countries; bombing raids based on generalized probability, rather than specific targeting of suspected “terrorists”; maintenance of secret prisons  where inmates  were interrogated and, during the Bush years routinely tortured; imprisonment for indefinite terms without access to courts or lawyers, and drone aircraft used for surveillance, missile and bombing attacks causing death and injury to thousands of civilians who had nothing to do with the bombing of New York in September, 2001.

The book is based on evidence scrupulously gathered and compiled by Scahill, an accomplished and courageous reporter.  The text is followed by 92 pages of notes, detailing the sources and interviews of countless people, warlords, former and active members of the military and CIA with personal knowledge of the events and practices described in the book, family members of victims of the raids, attacks and “snatch and grab” activities that filled the prisons scattered in remote locations in the Middle and Near East, as well as other reporters and analysts who shared their investigative efforts through published sources.  There is no doubt that Jeremy Scahill has an opinion and point of view concerning the subject matter of his book but, unlike the politicians and apologists who defend the practices he describes, Scahill states his opinions plainly, backs them with facts, and does not disguise them with artful words designed to deceive the reader.

Bush, Cheney and Rumsfeld – The Dumb War

      The Dumb Designation of a Crime as a War

A group of criminals flew planes into two office towers in New York and the Pentagon in Washington D.C..  They did so as part of a carefully planned conspiracy directed by Osama bin Laden, the al Qaeda leader and strategist.  Unfortunately for our country, and fortunately for militant Islamist groups around the world, the damage and harm done by the conspirators was enhanced because it happened when our government was in the hands of some ruthless and radical men who had been waiting impatiently for more than twenty years for an opportunity to reshape the rules that protect Americans from abusive government power.

In the 1970’s, Presidents Lyndon Johnson and Richard Nixon used the powers of the presidency to wage war in Vietnam and Cambodia without effective oversight by the Congress or the courts.   Because it involved thousands of young male conscripts, over 50,000 of whom died there, the pain of those losses, expressed by millions of outraged and grieving American mothers, forced Congress to take steps to limit presidential power to make war.

Bob Eckhardt, a brilliant Congressman from Texas, drafted the War Powers Act of 1973.  Congress enacted it.  Nixon vetoed it.  Congress overrode his veto and adopted it.  It was intended to require active Congressional involvement in decisions to wage wars.

By September, 2001, three developments had occurred that weakened the force of the 1973 law.  First, the draft was ended and the military was staffed with professional soldiers , so war threats no longer affected a broad cross-section of American families.  Second, the Reagan years had spawned a new and powerful group of GOP political leaders who were committed to restoring power to the presidency.  They were called “neo-conservatives”.  They preached the “exceptionalism” of America and appealed to a kind of jingoistic patriotism, a new iteration of the “Mainifest Destiny” of the 1840’s and 1850’s, a doctrine used to justify the relentless war on native Americans and wars against Mexico, the Philippines and Cuba.  Dick Cheney and Donald Rumsfeld were early and enthusiastic neo-cons.  Third, the 1990-91 Gulf War against Iraq required only six months, had minimum loss of American life and was ended as a clear victory that enabled Americans to enjoy the overwhelming “shock and awe” inflicted on Saddam Hussein’s overrated army.

So, given these facts, the 9-ll bombing afforded Cheney, Rumsfeld and the compliant President Bush an opportunity to rid the presidency of the nettlesome restrictions imposed by the War Powers Act, as well as the Bill of Rights, the domestic and international laws against torture of prisoners, and the laws against assassinations imposed by Presidents Ford and Carter.  Cheney & Co. regarded all those measures, including the Constitution, as barriers to the proper exercise of presidential power.  Therefore, instead of proceeding to apprehend the criminals who designed and enabled the bombing, it was marketed according to an in-apposite metaphor: as an episode in the “Global War on Terror” perpetrated by “Islamoterrorists”.  It was compared to the December 7th bombing of Pearl Harbor.

Instead of taking advantage of the almost universal offers of assistance from other industrialized nations throughout the world, and tracking down Osama bin Laden and his co-conspirators, arresting them if possible and killing them if not, the Congress adopted an ambiguously worded hunting license to President Bush and turned him loose on the world and the United States Treasury.  The enemy was undefinable and the battlefield was boundless.   It was a war against a weapon:  any plan or device intended to terrorize people, and the enemy was anyone suspected of planning to use such a weapon and anyone suspected of helping anyone to obtain or use such a weapon against the United States.

This was without precedent in the history of the world.   Wars had been fought over territory,  over trade routes and advantages, over religious differences, over competing claims to sovereignty and political leadership positions.   No war had ever been fought over the use of a weapon.

A state of war is essentially a state of lawlessness.   Homicide, theft, malicious destruction of property, assault and battery are all legal if committed during a war on a battlefield against an enemy.  Modern weaponry has rendered the distinction between civilian and military targets meaningless because, when a bomb is dropped or a missile fired toward a suspected enemy , there is no practical way to insure that innocent persons will not suffer injury or death.  So, when an American president is given the right to use the most powerful military arsenal in the world against a undefinable enemy in an unlimited battlefield, all laws, including the Constitution, intended to protect against abusive power are nullified if they impose limits on waging that war.

There are so-called “laws of war” that impose humane limits on the brutality of armed conflict.  Even those weak limits were cast aside by an exquisite feat of sophistry:  The lawyers for the “Global War on Terror” [GWOT] claimed that the GWOT warriors were immune from prosecution because they were soldiers in a war, but their victims were not entitled to the protection of the “laws of war” because they were not actually soldiers.  They were “enemy combatants” who, like spies caught without uniforms, could be dealt with summarily.  The Supreme Court finally set some limits on this absurd argument, but still refused to accord GWOT prisoners the rights of prisoners accused of or convicted of crimes who are held without trial for indefinite terms of years.

     A Dumb Way to Wage a Dumb War

After Congress adopted the “Authorization for Use of Military Force”, the AUMF hunting license, Cheney and Rumsfeld decided to shroud their GWOT in a veil of secrecy that would avoid oversight by the legislative branch of government and First Amendment oversight in the form of public scrutiny.  The CIA was designed as the official agency for secret activity in foreign territory but, over the many years of its existence, the CIA adopted certain rules that limited its use of lethal force and prohibited it from engaging in the torture of prisoners.  Not only that, but the CIA operated according to an established system of oversight by Congress.  That attention to the Constitution’s system of “checks and balances” was unacceptable to the Bush GWOT team.

Rumsfeld solved this problem by using his job as Secretary of Defense to empower the Joint Special Operations Command [JSOC] to be the main force used to wage the GWOT.  The CIA was relegated to a support role.

JSOC  is seldom mentioned in the press.  Its activities are secret.   It was formed in response to the failed mission to rescue Iran hostages during the Carter administration.  Its members were highly trained men recruited from Navy SEALS, Army Rangers, Delta Force and other elite groups from different branches of the military establishment.  They are a “private army” subject to the command of the President.  JSOC was used to engineer the killing of Che Guevera, illegally supply the Contras with arms and support, and engage in various other covert operations in Latin America.  It was perfect for Rumsfeld’s purposes.

The sidelining of the CIA resulted in a turf war and several times both CIA and FBI officials protested the way Cheney and Rumsfeld conducted their GWOT, especially their use of secret prisons where prisoners were subjected to “enhanced interrogation”.

     The Killing of Abu al Harithi and Kamal Derwish aka Ahmed Hijazi   

On November 3, 2002, a JSOC team located Abu al Harithi in Marib, Yemen.  He was one of the people responsible for the bombing of the USS Cole in 2000.  The information was sent to the CIA headquarters in Langly, Virginia and to a CIA command center in Djibouti.  An armed drone was launched.  It located Harithi in a car driving through Marib.  A five-foot-long Hellfire missile was fired at the car, hitting it and killing Harithi and Ahmed Hijazi, an American Citizen born in Buffalo, New York.  Before moving to Yemen, Hijazi had been an “unindicted conspirator” in the prosecution of the “Lackawanna Six”, a group of men charged with supporting al Qaeda.  He was neither tried nor convicted of any crime.

Before the strike, CIA Director George Tenet told Ali Abdullah Saleh, the President of Yemen, that the killing would be kept secret so that Saleh would not be embarrassed for allowing US military operations in his country.  Soon afterward, however, an unnamed US source claimed credit for the killing and that was reported in the American press.  Saleh was “highly pissed”.  He had released the “cover story” that he and Tenet had agreed on:  that the car hit a land mine.  Ultimately, he was mollified with generous infusions of money and arms that enabled him to hold on to his tenuous grasp of power.

This was the first killing of an American citizen not on a battlefield since Gerald Ford banned political assassinations in 1976.  Amnesty International and the ACLU denounced it and called on the US government to “bring to justice” those responsible.   This  was  ignored.  The President and members of Congress expressed satisfaction that “terrorists” had been killed.

This was only the beginning.  A command center was established on the USS Mount Whitney, a ship sailing in the Gulf of Aden and around the Horn of Africa.  During the ensuing months JSOC offensives in Somalia, Yemen, Kenya, Ethiopia, Eritrea and Djibouti were directed from it.

    Dumb Snipe Hunts

A snipe hunt is a mean trick typically played on a city kid by usually older kids raised in the country.  It is played at night.  The victim is told that he and the other kids are going on a snipe hunt.  He is told that a snipe is nocturnal animal who can be trapped in a gunny sack held open; that it is attracted by a light.  He is told that the small animal will not bite him and is good to eat.  He is then led into the woods, given a flashlight, told to hold open a gunny sack, to sit and wait for a snipe.  He is assured that the other  “hunters” will be at other locations similarly occupied.  After being left there for as long as the pranksters feel is sufficient, he is rescued and  teased about foolishly believing the phantom snipe story.  There are variations, but this is the core idea.

For several years, beginning in 2002, the President of the United States and his team of GWOT warriors and Iraq invaders engaged in not one, but two snipe  hunts:  The first was initiated by Rafid Ahmed  Alwan al Janabi, an engineering school dropout also known as Curveball, who told Bush’s eager listeners that he had personal knowledge that Saddam Hussein had “weapons of mass destruction”,  The second was  triggered by a Czech counterintelligence source who claimed that Mohamed Atta, one of the 9-11 hijackers, met in Prague in April, 2001, with Ahmad Samir al Ani, an Iraqi consulate.

Curveball proved to be a deranged con man who tried to score a green card from the willingly gullible Bush team by making up this story.  The Czech government, after an intelligent investigation, declared that there was no credible evidence to support the alleged Prague meeting.

Before these snipe hunts were exposed, Rumsfeld and his JSOC army imprisoned thousands of men and women and subjected them to horrific forms of torture in a doomed effort to extract from them information about the WMD’s and the al Qaeda connection with Saddam Hussein’s government.   Rumsfeld personally held weekly meetings to receive updates on the success of these efforts and sent memo after memo urging more and more severe methods to obtain the information he required.  He was like a hapless kid, crouching in the dark, waiting for a snipe that never came.  Disreputable lawyers like John Yoo were kept busy contriving new definitions of the word “torture” to protect Rumsfeld and his subordinates from criminal prosecution as war criminals.

[To be fair, it is true that Bill Cliinton and some members of both US and British intelligence forces began talking about Iraqi “weapons of mass destruction” before the advent of the Snipe Hunters.  The difference is that they did not launch a GWOT based on their suspicions.  And, most important, they listened to other, conflicting, opinions within the intelligence community.  When the USS Cole was attacked in October, 2000, President Clinton did not

“Cry ‘Havoc,’ and let slip the dogs of war;
That this foul deed shall smell above the earth
With carrion men, groaning for burial ”

That reaction awaited the Snipe Hunters.]

      The Dumb War Dictionary

In order to achieve their goals of unfettered power while avoiding criminal prosecution or impeachment, President Bush and his GWOT warriors had to re-define several words and phrases that affect the application of various US laws.  For example, American law distinguishes between “covert operations” and “clandestine operations”.  Covert operations are military incursions into other countries that are not only secret, but are also done in a way that the US Government can deny responsibility for them.  Covert operations require a presidential finding that must be shared with the House and Senate Intelligence Committees before the operation begins.  Those restrictions were imposed as a result of the Bay of Pigs fiasco and the Iran-Contra scandal.

Clandestine operations are secret military operations in foreign countries.  They do not require a presidential finding nor do they require the involvement of Congress.  Clandestine operations typically were used when invasions were planned.  In the language of the military “Standard Operating Procedure” they are referred to as “Preparing the Battlespace”.   For example, before D-day in WWII, clandestine operations were used to disrupt anticipated defensive actions by the German military.

Rumsfeld and his team viewed the entire ex-US world as a “battlespace” that could be “prepared” by JSOC operations.  He not only wanted to bypass Congressional oversight and the bother of a presidential finding, he also wanted the ability to launch these clandestine operations without wading through the Pentagon’s chain of command.  In other words, he wanted his own private army to send wherever he chose without having to account to anyone but himself and his hand-picked subordinates.   The fact that this had no resemblance to any reasonable interpretation of the terms and phrases upon which he was relying did not deter him.

He encountered opposition from Pentagon brass who rightly felt that they were being benched.  He also found himself in a running war with the FBI and the CIA who also felt that they were being relegated to supporting decisions and choices over which they had no control or influence.  Despite these problems, Rumsfeld, with the powerful backing of his friend and mentor Dick Chaney, had his way.  He became, in effect, a super general, able to invade, kill and destroy whoever and whatever he chose wherever he chose, so long as it was outside the United States.  He became the most powerful snipe hunter in the history of the world.

     Dumb War in Somalia:  A Debacle

Even before the GWOT began Somalia was a failed state:   a mostly rural territory larger than France with few resources, inhabited by desperately poor people surviving under the ad hoc rule of a network of war lords.  The CIA operated in Somalia through shifting alliances with some of the war lords.  Al Qaeda had a few agents there, but they were not a major force.  When the GWOT began in Somalia, the CIA used its client war lords as contractors, armed with US weapons, funded with US money and supported by US air power to stage raids in rural villages and kill suspected al Qaeda supporters and others who harbored or protected them.

Those raids were done with vicious brutality and the resulting resentment was focused on the American sponsors.  By 2004, news of the Iraq invasion and the abuses at Abu Graib convinced the Somali Muslim population that the US was waging war against Islam.  To halt, or at least moderate, the lawless chaos that prevailed, local Muslims organized a system of sharia courts to enforce order.  This system became known as Islamic Courts Union or ICU.

In a short time, the ICU grew strong enough to control a substantial part of Somalia and, at one point, controlled Mogadishu.  In response, JSOC and the CIA launched large scale bombing attacks on Somali villages where ICU was in control.  In addition, the US sponsored and supported an invasion of Somalia by Ethiopia, a neighboring country with which Somalia had gone to war in the 70’s and which had continued a hostile relationship since then, featuring periodic cross-border raids.

A full scale war ensued, with US air strikes supporting the invaders.  The ICU was finally vanquished, the war ended and the Ethiopian troops withdrew.

The Ethiopian invasion disrupted the ICU but  it also attracted large numbers of young men from other countries, who considered the conflict in Somalia to be an attack on Islam.  These men became easy recruits for al Qaeda and ultimately organized a new insurgency called al Shabab that became the most powerful and effective al Qaeda organization in East Africa.  In 2009, a report for the Senate Foreign Relations Committee concluded, “In many areas al-Shabab is the only organization that can provide basic social services, such as rudimentary health facilities, food distribution centers, and a basic justice system rooted in Islamic law.”

The influx of foreign fighters steadily increased and al Shabab gained control of more territory than any other al Qaeda group in history.  The dumb GWOT strategy, in a few years, had converted a failed state with little or no power to a territory similar to Afghanistan before 9-11, where al Qaeda could recruit and train its forces and expand its potential for harm to America.  In the process, it had furnished ready-made propaganda for al Qaeda to use throughout the world to encourage Muslims to hate America.

The Track and Whack War

     The Pirates’ Mistake

Three months after Barack Obama became the Commander-in-Chief, some Somali pirates made the mistake of waylaying and boarding an American ship off the Somali coast.  The crew resisted and one of the pirates was wounded.  Three of the pirates left the ship in a small boat, taking Captain Richard Phillips, an American, with them as a bargaining chip.  They headed for the Somali coast.  At Obama’s order, the USS Bainbridge was dispatched to the scene and arrived the next day.  On the third day, Captain Phillips tried to escape from the pirates, but was re-captured.  Two other US vessels joined the Bainbridge.  On the morning of the fourth day, Obama, after being advised that JSOC had a team of expert marksmen capable of dealing with the escaping pirates,  authorized the team to use lethal force to free the captain.  After the team was in place, Obama and some advisers questioned them about their ability to free Phillips.  “Would there be undue risk of harm to US troops?”  “Would there be collateral damage?”  “Do you have a clear shot?”  After receiving negative answers, Obama was asked, “Do I have permission to execute?”  Obama said “Yes you do.”  The voice at the other end of the line gave an order.  Then “Pop. Pop. Pop.”  Three pirates were dead and Captain Phillips was rescued.

Barack Obama had experienced the power of heading a powerful military force.  It undoubtedly impressed him with the efficiency and capability of a JSOC team.  Admiral William McRaven, the JSOC commander became a frequent White House visitor and established a close relationship with Obama.

     Obama’s GWOT  Army

Obama focused on killing Al Qeada and groups “associated” with Al Qaeda.  His primary weapon was JSOC, using intelligence supplied by the CIA.  His CIA Director, Leon Panetta, an old hand at handling political conflicts driven by outsized egos, effectively ended the turf wars between the FBI, the CIA and JSOC.  Obama soon had a smoothly working army which he began using to kill members and supporters of al Qaeda and “associated groups”, a shifting and imprecise designation of victims, the meaning of which changed in response to a constantly changing body of information.

Obama, in other words, while he ordered the ending of prisoner torture, continued, expanded and made more effective the “Global War on Terror” begun by the Bush neo-cons.  He used JSOC forces for raids on the ground, drones, missile armed helicopters and AC130 gunships for larger scale attacks.  [To appreciate the nature of the air attacks, do a Google search for “AC130”, look at some pictures and consider how those attacks were perceived by rural villagers in Yemen, Somalia, Kenya and other African countries.]

     Rendition and Interrogation

Ali Nabhan was one of the Al Qaeda leaders and planners of terrorist activities in East Africa.  He and Fazul Abdullah Mohammed were responsible for the bombing of US embassies in Kenya and Tanzania.  When Obama became President, both were still at large, regarded as HVT’s  (High Value Targets).  In July, 2009, Kenya security forces raided a home in Eastleigh, a slum district in Nairobi.  They arrested Ahmed Abdullah Hassan and took him to Somalia.   There, in the basement of Somalia’s National Security Agency,  he was interrogated by US Intelligence officials as well as by Somali interrogators.  He proved to have been a personal assistant to Nabhan and, in response to repeated interrogation by both US and Somali men, disclosed information that allowed a JSOC team, on September 14, 2009, to attack a convoy consisting of a Land Cruiser and several “technicals” (pickup trucks armed with machine guns).  All passengers in those vehicles were gunned down.  The American commandos landed and collected two of the bodies, one of whom was Saleh Ali Nabhan.

In April, 2009, CIA Director Panetta declared that the “CIA no longer operates detention facilities or black sites” and announced a “plan to decommission the remaining sites.”  Three months later, Hassan was interrogated by Americans in a secret prison basement.

     The Bombing of Majalah

On December 16, 2009, legal advisers from the State Department and the Pentagon and seventy-three other top national security officials were given a file of “baseball cards” containing the bios of three men in Yemen who were alleged to be leaders of AQAP (Al Qaeda in the Arabian Peninsula).  The JSOC commander, Admiral McRaven wanted immediate authority to kill all three.  The two legal advisers were given forty-five minutes to consider the request.  A teleconference was set up.  McRaven laid out the case for “kinetic action”, saying that one of the targets, Mohammed Saleh Mohammed Ali al Kazemi,  had been tracked to a training camp near the village of Majalah.   Capturing him had been ruled out and a JSOC cruise missile attack on the camp had been decided on.

The assembled group gave their permission for the strike.  A short time later, the Pentagon lawyer watched as a satellite beamed a real life image of Majaloah.  Figures moving around the village appeared to be the size of ants.  Then, in a massive flash, they were vaporized.  In the Pentagon, the satellite feed was known as “Kill TV”.

There was no training camp.  Scahill interviewed Bin Fareed, one of the most powerful citizens of Yemen, a leader of the Aulaq tribe and Anwar Awlaki’s uncle,  who visited the killing site the next day after the strike.  “When we went there, we could not believe our eyes.  I mean, if somebody had a weak heart, I think he would collapse.  You see goats and sheep all over, you see the heads of those who were killed here and there.  You see their bodies, you see children, I mean some of them, they were not hit immediately, but by the fire, they were burned, . . . .”  The man described efforts to bury the dead:  “Some of the meat we could not reach, even.  It was eaten by the birds.  They were all children, old women, all kinds of sheep and goats and cows. Unbelievable.”  “Why did they do this?  Why in the hell are they doing this?”  “There are no [weapons] stores, there is no field for training.  There is nobody, except a very poor tribe,one of the poorest tribes in the South.”

Scahill interviewed several survivors.  One of them was spared because he had gone on an errand to a neighboring village.  “People saw the smoke and felt the earth shake – they had never seen anything like it.  Most of the dead were women, children and the elderly.  Five pregnant women were killed.”

Scahill includes statements from other survivors, all similar descriptions of horror and slaughter.

      It Gets Worse

Abdulelah Haider Shaye was a journalist in Yemen who did not conform his reporting to the interests of either the Yemen government or the interests of the United States.  He was not allied with Al Qaeda and his stories were as critical of its activities and policies as those of the US and Yemen.  He was related by marriage to “. . a radical Islamic cleric,Abdul Majeed al Zindani, the founder of Iman University  and a US Treasury Department designated terrorist” [in Scahill’s words]  Because of this connection, Shaye was able to get information about Al Qaeda that probably would not have been otherwise available, but his stories were often critical of Zindani and were not subject to a charge of bias toward Al Qaeda.

Scahill wrote that Shaye “. . . had long been known as a brave, independent-minded journalist in Yemen. . ..”  He became a target for US retaliation when he began to write stories about Majalah.  Shaye went there and published pictures of pieces of cluster bombs and Tomahawk cruise missles with “Made in the United States” stamped on them.  Among the debris found and photographed by Shaye were pieces of BLU 97 A/B cluster bomblets described by Scahill as “[bombs] which explode into some two hundred sharp steel fragments that can spray more than four hundred feet away.  In essence, they are flying land mines capable of shredding human bodies.  The bomblets were also equipped with an incendiary material, burning zirconium, that set fire to flammable objects in the target area.  The missile used in the attack [on Majalah], a BGM-109D Tomahawk, can carry more than 160 cluster bombs.”

All of this information was spread around the world, on Al Jazeera as well as other news media.  It made obvious that the claim made after the strike:  That it was done by the Yemen government, was not true.  The Yemen government did not have the kind of missiles used.

Bin Fareed reacted to the Majalah bombing by organizing a massive meeting of almost 150 of Yemen’s tribal leaders.  Old feuds and inter-tribal hatred were put aside and a crowd estimated as between 50,000 and 70,000 tribesmen assembled at Majalah in cars, according  to Fareed, “as far as the eye could see.”  A huge tent was erected and plans were made for speeches expressing outrage toward the US and the Yemen government for the attack.

The night before the speeches were scheduled, a small group of strangers came to the tent.  They identified themselves as Al Qaeda agents and asked for permission to address the crowd.  Bin Fareed refused and told them they were “idiots” who would divert attention from the purpose of his organizing:  to oppose the lawless violence, not align with Al Qaeda’s equally violent policies.  The Al Qaeda men left but, the next morning one of them, standing atop a car, spoke to the crowd and identified himself with Al Qaeda.  His speech was televised and, despite Fareed’s effort, his rally was hijacked and branded as an Al Qaeda event.  He told  Scahill, with satisfaction that,  a few days later, all of the Al Qaeda agents were killed, probably because the US was able to track them based on their appearance at the rally.

Abdulelah Haider Shaye persisted in his investigative reporting of the Majalah attack.  He worked with Al Jazeera, ABC News and the Washington Post to expose the false tales offered by the Yemen and US governments, claiming that the attack was by Yemen military forces and that it destroyed an important Al Qeada training camp.  His reports also exposed the way Saleh, the Yemen president, used the Al Qeada threat to pry money and weapons from the US.

In July, 2010, seven months after the Majalah strike, Shaye was grabbed off the street by Yemeni intelligence agents, taken to a secret location and told that to stop criticizing the Yemen government.  They told him, “We will destroy your life if you keep on talking.”  His lawyer told Scahill he was convinced the kidnapping was done at the behest of the US government.

Shaye responded to the threats by going directly to Al Jazeera after being released to describe the event in a live telecast.  Saleh had set up a special court to prosecute journalists who were critical of him.   The head of a committee to protect journalists in the Middle East and North Africa happened to be in Yemen that night.  He interviewed Shaye and found him to be a competent and courageous reporter.

About that same time, major news media outlets in the US were being told by US intelligence officials to stop working with Shaye, that he was using the money they paid him to support Al Qaeda.  Scahill interviewed both Shaye and his friend Sharaf, a cartoonist who incurred the wrath of the Yemen government by publishing unflattering cartoons of Saleh.  He was convinced that neither of them were Al Qaeda agents.

On August 16, 2010, the end of Ramadan, Sharaf’s home was surrounded by armed soldiers.  He and Shaye were taken to jail, beaten and tortured for about thirty days.  Sharaf was released in exchange of his promise to stop drawing cartoons of Saleh.  Shaye refused to make any promises, so he was charged with a long list of crimes and, a month later, brought to trial in a cage located in the courtroom.   After the charges, accusing him of being an Al Qaeda agent among other crimes, were read aloud, he made a short speech to his fellow journalists, declaring that he was being persecuted for no reason except his exposure of the violent attacks on innocent citizens.  He said, “You notice in court how they have turned all my journalistic contributions into accusations.”  As security guards dragged him away, he yelled, “Yemen, this is a place where, when a young journalist becomes successful, he is viewed with suspicion.”   He was sentenced to five years in prison.

Human rights groups and reporters who attended the trial, denounced Shaye’s treatment and branded the trial “a joke”.  Gregory Johnson, the Yemen scholar at Princeton University, who had maintained steady communication with Shaye for years, told Scahill, “It is difficult to overestimate the importance of his work.  Without Shaye’s reports and interviews we would know much less about Al Qaeda in the Arabian Peninsula that we do, and if one believes, as I do, that knowledge of the enemy is important to constructing a strategy to defeat them, then his arrest and continued detention has left a hole in our knowledge that has yet to be filled.”

A group of tribal leaders and some prominent Yemen sheikhs met with Saleh and urged him to release Shaye.  Saleh agreed.  A pardon was printed and Shaye was about to be released when Saleh received a call from President Obama.  Obama “expressed concern”  that Shaye was to be released before serving his sentence.  After the call, Saleh tore up the pardon and Shaye remains in prison.

     Horror at Gardez

Mohammed Daoud Sharabuddin was a policeman who headed the intelligence department in Paktia Province, Afghanistan.  He lived near Gardez, a town in that province.  On February 12, 2010, he, his family and some friends were celebrating the naming of his son, a ritual that occurs six days after birth.

About 3 a.m., the party was winding down when someone noticed that an outside light was not on.   One of the musicians saw lasers from the perimeter of the compound focused on the grounds.   He ran back inside and told Daoud that the Taliban  was attacking.  He said they were already on the roof.

Daoud and his fifteen-year-old son went outside and were killed by sniper fire.  The family inside began hearing the attackers speaking English and realized they were Americans.  Daoud’s brother tried to stop the attack.  He went outside and shouted, “We work for the government.  Look at our police vehicles.   You have wounded a police commander.”  Three women, family members ages thirty-seven, twenty-two and eighteen, tried to get him back inside.  All four were killed.  Seven people died.  The dead women were survived by sixteen children.

One of the survivors, Mohammed Sabir, one of Daoud’s brothers, saw his brother, his niTece and his sister-in-law killed.  At 7 a..m. stunned by the violence, he stood in a room filled with American soldiers while others searched the home.  His request to take the wounded to the hospital was ignored.  The soldiers told him they would care for them.   Finally, a helicopter came but, by that time, the wounded family members were dead.

Afghans customarily bind the heads and feet of the dead.  A scarf is put around the bottom of the chin to keep the mouth  from being open.   The survivors began trying to do this, but the soldiers handcuffed them and put the men and the women in separate rooms.  Scahill interviewed the survivors.  Several of the men told him that, after being handcuffed, they saw American soldiers using knives to dig bullets out of the corpses of the womens’ bodies.  When Scahill asked one of the men to confirm this, the man said, “Yes.”   “They were taking bullets from their bodies to remove the proof of their crime.”

Some of the male members of the family were taken into custody and interrogated for three days and nights.  They were still wearing clothes bloody from the killings.  They were accused of being Taliban members, although they told their interrogators that they had actually fought against the Taliban.

United Nations investigators issued a report that was never released.  It said that the Daoud family was subjected to cruel, inhuman and degrading treatment; that medical treatment was wrongfully delayed; that the survivors were made to stand outside in the cold for long periods of time.

The International Security Assistance Force issued a press release claiming that, while engaged in a routine operation, an ISAF team had made a “gruesome discovery”.   After being caught in a a “firefight” at the compound, they went inside and found three women who had been “bound” and “gagged” and then executed.  The ISAF team found them in an adjacent room”.   The release stated that eight men had been held for “further questioning”.   The press release stated, “ISAF continually works with our Afghan partners to fight criminals.”

The New York Times published the ISAF account.  A Times reporter, Rob Norland, spoke to the local police chief, who confirmed many of the details of the incident.  He stated that three women had been killed by Taliban militants and appeared to have deep cuts and puncture wounds, suggesting they had been stabbed.

A month after the attack, a British journalist, Jerome Starkey, began a serious investigation of the Gardez attack.  After interviewing witnesses and viewing other evidence, he concluded that it was a tragedy followed by a cover-up.  One of the most telling items was a video of the party, showing musicians playing and people dancing.  The  Taliban is notorious for banning musical instruments.  Starkey realized that the whole Taliban story was a lie.    When he interviewed the governor of the province where the attack occurred, he was told, “The operation was a mistake.”

The ISAF continued to insist on their bogus version but, when the Times of London published a long story written by Starkey, the cover-up began to unravel.  At first, ISAF pressured other journalists to attack Starkey’s credibility.  Then NATO claimed to have a tape recording in which Starkey made statements inconsistent with his story.  When he demanded access to the tape, NATO spokesmen admitted it did not exist.

Starkey published a follow-up story describing the grief and outrage of the Afghans about the Gardez attack.

In late March, 2010, Starkey got a phone call from NATO.  The caller told him that they were issuing a new press release changing their account of the attack.  The new version admitted that the Daoud family was not allied with the Taliban, that, while the men “showed hostile intent”, they did not fire on the ISAF forces; that the women were not “bound and gagged” as originally claimed.  NATO still denied that bullets had been dug out of the women’s bodies.  A later investigation by Afghan investigators confirmed that the bullets had, indeed, been removed by the soldiers.  Starkey published another story based on that investigation.

On April 8, 2010, a huge convoy of American armored cars and land cruisers, loaded with a large number of Afghan and American soldiers arrived at the Daoud compound.  Admiral McRaven stepped out of one of them.  A sheep was unloaded from one of the vehicles and three Afghan soldiers knelt by it in the courtyard of the compound.  Afghan law includes a doctrine named nanawate that requires that when a wrongdoer comes to ones home to ask forgiveness, he slaughters a sheep at the front door and the victim is bound to accept him and his apology.  As an Afghan mullah prayed, the soldiers prepared to kill the sheep.  Hajji Sharabuddin, the family elder, stopped them.  He recognized that honor required him to let the visitors into his home.  He insisted, over McRaven’s objections, that Starkey remain in the room.  His photographer took pictures of the event.  McRaven made a short speech.  He apologized and asked for “mercy” for him and his men for “this awful tragedy”.  The Afghan generals handed the family $30,000.

When Scahill spoke with Sharabuddin months later, he said he did not accept the apology.  He said, “Initially, we were thinking that Americans were the friends of Afghans, but now we think that Americans themselves are terrorists.  Americans ar our enemy.  They bring terror and destruction.  Americans not only destroyed my house, they destroyed my family.  The Americans unleashed  the Special Forces on us.  These Special Forces with the long beards, did cruel, criminal things.”

Scahill made FOIA requests for documents pertinent to the bullet removal issue.  His requests were denied.

     The Anwar Awlaki Story

A major part of Scahill’s book concerns the killing of Anwar Awlaki and his sixteen-year-old son.  I have written about this elsewhere so I won’t repeat it here.  [See “Lynch Law” and “Lynch Lay Two”]  Scahill’s book does, however, include one charming detail of which I was not aware.

The CIA accepted the assistance of a Danish citizen, Morton Storm, a lapsed Muslim who volunteered to become a double agent.  Storm is  a former biker gang member who became a devout Muslim and then, after a sudden epiphany, became an eager anti-Muslim.  During his devout Muslim stage, he was a fan of Alwar Awlaki’s YouTube Muslim ministry and established a friendly relationship with him via email.

Awlaki told Storm that, because he was in  exile to escape US surveillance and living away from his family, he pined for another wife who would accompany him on his frequent travels.  Storm agreed to look around for one.  He then went to a local office of the CIA and volunteered his services.

With the help of the CIA, Storm found a Croatian woman who was also a fan of Awlaki and was eager to become his wife.  A video was produced featuring her, expressing her admiration for Awlaki , proposing herself as his future wife.  He responded favorably and their wedding was arranged.

Since Awlaki had made plain the fact that their marriage would involve a lot of travel, the CIA provided her with a suitcase for her wardrobe  and equipped it, without her knowledge, of course, with a homing device that would be trackable.

She met and married Awlaki and Storm was paid $250,000 by the CIA for acting as the matchmaker.

Following their marriage, Awlaki transferred her clothes from the suitcase to a plastic bag, abandoned the suitcase and the CIA plan to blow up the bride and groom as well as anyone else who happened to be in the vicinity was thwarted.

Last Sunday night, 60 Minutes included a segment in which Storm,  who has produced a self-laudatory book, complained bitterly because, according to him, he was responsible for killing Awlaki and was denied the large reward that had been promised.  The CIA claimed that his information was not vital to locating and killing Awlaki, so they refused to pay him.  Perhaps they considered a quarter of a million dollars for a plot that did not succeed was enough.

     Signature Strikes 

Three days after becoming President, Obama signed executive orders “dismantling” the Bush torture and detention programs.  He declared that we would wage war against “violence and terrorism”,but would do so in a manner consistent with “our values and our ideals”.  The next day, CIA Director Michael Hayden told the President about drone strikes planned in Pakistan near the Afghan border.  Hayden described them as targeting “upper tier” Al Qaeda and Taliban” members.

On January 23, 2009, two Hellfire missiles hit two compounds in two small villages.  Hayden reported that the “upper tier” agents had not been hit, but that “at least five Al Qaeda militants” had been killed.  Obama replied, “Good.”

The next day, John Brennan, his chief anti-terrorism adviser, told the President that most of those killed were innocent civilians.  One strike killed between seven and fifteen people, almost all civilians.  The second strike hit the wrong house and  killed between five to eight civilians, some of whom were family members of the tribal elder, who was a member of a “pro-government peace committee”.

Obama summoned Hayden for a meeting.  Hayden explained that the targets were based on “signature” findings, based on “life patterns” rather than actual intelligence specifically identifying them as Al Qaeda or Taliban leaders or members.  The CIA had reported that they were “military age males” who were part of a large gathering in a region known to contain Al Qaeda or Taliban agents or were known to have had contacts with suspected militants.  After hearing the explanation, Obama agreed that strikes could be based on such evidence, but required that the CIA Director was to have the “final say” on them.

These meetings were followed by other meetings with members of the intelligence community and Obama was made aware of the way the drone program was structured.  During the next ten months, Obama authorized as many drone strikes as Bush had in the eight years of his presidency.

As I read descriptions of these “signature” strikes, something seemed familiar about them.   One night, while half asleep, it came to me.  This was the way the McCarthy and J. Edgar Hoover waged the war on communism in the United States in the 50’s and 60’s.  People were singled out based on their associations with others suspected of being communists.   If they attended meetings where ideas consistent with communism were discussed, they were targeted.  If they publicly opposed the methods of the anti-communists, they were targeted.

They weren’t killed, just jailed, ruined and black-listed.  But the method was the same.  We  weren’t at war with the USSR or with any communist country.   We had a war going on against an  loosely defined ideology named by those waging the war as “communism”.   Part of its appeal was based on fear.  In those days the fear was focused on being incinerated by an atomic bomb.  The GWOT war, also focused on an ideology, is based fear of another terror attack.

Those claimed to be communists, like those claimed to be agents of Al Qaeda or the Taliban, were not formally inducted into an organization.   Their names did not appear in official membership roles.  Their supposed adherence and approval of every objectionable idea of an ideology was presumed based on their “life pattern”.

This “life pattern” strategy used as a basis for drone strikes and lethal force should be familiar to us all.  The pity is that, when it is given a new name, we don’t recognize it.  Mayor Bloomberg’s “stop and frisk” program in New York, now the subject of conflict and public discussion, is another iteration of it.  It also bears a resemblance to the “articulable suspicion” used to justify the NSA’s surveillance programs’ focus on specific persons or groups.

It seems to me that the GWOT is being fought on bases similar to the old McCarthy/Hoover/ John Birch wars on communism and the other just cited examples,  except that Hellfire missiles and 500 pound bombs are more serious weapons than Congressional hearings and blacklists; Bloomberg’s police harassment; and NSA’s snooping.

Conclusion

I know this essay is too long.  I have touched on about ten percent of the material in Scahill’s book.  The examples I have discussed can give only a hint of the descriptions of mayhem and violence he describes, along with detailed accounts of the secrecy and deceit that characterize the efforts to conceal it.  It is not a  pleasant book but it reminds me of the importance of the First Amendment’s important protection of journalists like Jeremy Scahill, Jerome Starkey and Abdulelah Haider Shaye.

Bob

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Word Games

August 21, 2013 § 2 Comments

I’ve been thinking about the use and misuse of words.

According to press reports I’ve read, there is a federal law that appropriates foreign aid for Egypt.  There is another federal law that prohibits granting foreign aid to a government that results from a coup.  A few weeks ago, the Egyptian army ousted the democratically elected government of Egypt, placed the democratically elected President in jail and assumed authority for governing the country.   Most reports of this event acknowledged the obvious:  This was a military coup.

President Obama declined to label it a coup.  Although he canceled joint war games to begin next month, he did not cancel scheduled grants of foreign aid to Egypt.

Then the Egyptian army slaughtered people during a public demonstration.  In response, President Obama announced that he was considering suspending foreigh aid to Egypt.

So, to recap the bidding:  First, in obvious violation of the anti-coup law, Obama claimed it was not a coup.  Second, after having chosen to ignore the fact that it was a coup, still contending it was not a coup, he is considering suspending foreign aid to Egypt, raising the obvious question:  “By what authority could you withhold foreign aid to Egypt if there was no coup?”

I know this is an inconsequential observation.  Nobody apparently cares whether the President pays attention either to federal laws or the English language.  I just think it is interesting and, to me, somewhat disturbing, because redefining words can have serious consequences.  Remember the John Yoo memo that redefined “torture”?   That had serious consequences:  hundreds, perhaps thousands of people were tortured and those responsible were not held legally responsible for their crimes.  Also, our government is based on a written contract, the Constitution.  Its words are all  that stand between us and government based on fear and military might.

The second reason for these musings is the present trial of Doctor Hassan, the Ft. Hood psychiatrist who gunned down several of his fellow soldiers as well as one civilian who tried to stop the slaughter.  Email exchanges between him and Anwar al-Awlaki, a Muslim preacher in Yemen, show that Hassan  accepted the Bush and Obama administrations’ designation of the conflict that followed the bombing of September 11,2001, as a “Global War on Terror”.   He reasoned that the “war” was being waged against Islam and that, as a Muslim, he had conflicting loyalties:  He was in the US Army and, hence, owed allegiance to the United States but, because the “war” broke out during his period of service, he was like a soldier from South Carolina serving when the Civil War broke out.  After thinking about the matter for some time, he concluded that his religion required that he take action against the enemy soldiers with whom he was serving.  So, he shot them.

During his trial, he chose to represent himself and has made no semblance of a defense.  This, from his point of view, seems logical.  He is in an enemy court, presided over by enemy soldiers.  What sense would it make for him to argue with them?  I assume that he expects to be executed and probably understood that before he fired the first shot.

If I were representing him I would argue that he is a victim of the US government’s decision to treat the 2001 bombing as an act of war instead of a crime.  We are the ones who began the GWOT, not the criminals who flew airplanes into the NY buildings and the Pentagon.  Because we decided to call it a war, the enemy forces are entitled to treat it as a war.  In a war, enemy soldiers are fair game wherever they can be found.  In WWII, we bombed troop trains and  sank naval vessels carrying enemy troops  where ever we could find them.  War gave us the right to kill  enemy soldiers on the battlefield and off the battlefield.  So, when Hassan killed soldiers in Ft. Hood, it was an act of war, not a crime.  He should be put in a prison camp pending the end of hostilities, just like the Guantanamo prisoners.

Now, before you conclude that I’ve lost my remaining marbles, I hasten to assure you that I will shed no tears when they hang Hassan.   I think he is a murderer.  I also think, however, that there is no “Global War on Terror”; that the whole concept is a willful misuse of the  English language that has caused, and continues to cause needless and lawless killing.

I remember well the law school class in criminal law presided over by Professor Stumberg, one of the best teachers I ever knew.  He taught with hypothets and merciless questioning of students.   One morning, he posed a hypothet:  “Suppose a long-time professor of English History here at UT became delusional and convinced that he was Napoleon.  One morning, as he strolled toward the Tower, he encountered another professor whom he identified as the Duke of Wellington; drew a pistol and shot him.    Would it be murder or self defense?  ” [Before you leap toward “not guilty by reason of insanity”, consider whether, even granting the  delusional reasoning, it justified the homicide.  Like a lot of Stumberg’s hypothets,this one had wheels inside of wheels.]

That would be the basis of my argument in defense of Hassan.  I don’t think it would work, but if I had to defend him, I would try to pin the killing on Bush instead of him.

Lynch Law

May 20, 2013 § Leave a comment

,Summary 

In the following essay I will argue that President Obama’s claim of authority to order assassinations of American citizens and others without complying with the requirements of due process and without disclosing the factual basis for his order violates the Fifth Amendment to the Constitution.

Lynch Law 

The etymology of the phrase “Lynch Law” is murky.  It may have been named after James Lynch Fitzstephen of Galway, Ireland who, while mayor, hung his son from the balcony of his home in 1493, after convicting him of murdering a Spanish visitor.  It has  also been attributed to Charles Lynch, a Virginia planter and American revolutionary,  who presided over a county court.  Judge Lynch, without formal jurisdiction, imprisoned British loyalists for up to a year during the Revolutionary War.  The  Continental Congress retroactively affirmed his action.  William Lynch, also of Virginia,  claimed the phrase originated in a 1780 privately negotiated compact between him and his neighbors in Pennsylvania County.

Lynch law has a long and shameful history in  America.  A study at Tuskegee Institute listed 4,743  lynchings between 1882 and 1968; 3,446 blacks, 1,297 whites.

Based on this history, it is fair to characterize lynch law as lawless imprisonment, punishment or execution.

A Brief Historical Comment

The history of warfare is a record of expanding the reach and capacity of men for death, mayhem and destruction.  The process began when the first man picked up a stone, a club  or a stick to gain advantage over an enemy.  The sling extended the range of the stone.  The spear in the hands of a strong armed warrior extended the range of the stick.  The bow and the catapult added range to both the spear and the stone.  Roman soldiers armed with short swords, standing shoulder to shoulder in squares, powered an empire.  Genghis Khan and his fearsome mounted army swept away everything in his path from Mongolia to Western Europe with highly trained horsemen armed with bows and arrows.

Explosive compounds, rockets  and airplanes enabled transcontinental range for destructive weaponry.   In the past sixty days, we learned that American stealth bombers based in Missouri flew nonstop 6,500 miles to engage in war games on the Korean peninsula and returned home.  Nuclear technology and chemical warfare have increased the destructive capability of men to a potential for rendering our planet uninhabitable.

War and The Law

In a fitful effort to control these forces of chaos and destruction, societies have developed various systems of laws and cultural norms designed to impose some limits on war.  One of the most basic  legal principles established by laws related to war is that assaults, homicides and property destruction are not criminal if committed by soldiers engaged in wars.  War affords its participants a legal justification for acts that, if committed by private citizens, would justify prosecution and punishment.  Western democratic societies have tried, with very limited success, to establish limits on this defense to prosecution.  An effort has been made to define “crimes against humanity” and to prescribe punishment for such “crimes”, regardless of whether committed during a war.

These efforts have resulted in somewhat skewed results.  The victors in WWII  prosecuted, imprisoned and executed German and Japanese “war criminals” for wanton destruction and killing of civilians, conveniently ignoring the bombing of Dresden and the nuclear and fire bombing of Japan.  This said, however, it is true that, until the past decade or so, the distinction between crime and war was generally recognized and observed.

Even revolutionary wars, pitting neighbor against neighbor and countryman against countryman, were treated as wars and the participants were not viewed as criminals.  Confederate soldiers in the Civil War were not prosecuted for treason, even though Union rhetoric accused them of being traitors.  When the war ended, Confederate prisoners were released to return to their homes.  A vengeful Congress stripped them of their rights as U.S citizens, but even those retaliatory measures were later modified as part of a political deal.

9-11, The Failure of Checks and Balances and the Patriot Act

On September 11, 2001, airplanes piloted by agents of Al Qaeda crashed into two office buildings in New York City and the Pentagon in Washington D.C..  The buildings in New York were destroyed and the Pentagon sustained significant damage.  Seventeen days later, on September 18, 2001, with one dissenting vote in the House and a unanimous vote in the Senate, the U.S. Congress adopted a joint resolution that stated, in pertinent part:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

This joint resolution, entitled “Authorization for Use of Military Force”, often abbreviated as AUMF,  has been used by the Bush and Obama administrations to authorize the President to by-pass the Constitutional provision that reserves to Congress the power to declare war.  [Article I, Section 8].  In fact the last time Congress declared war was in December, 1941.

The United States has used military force against against  North Korea, Vietnam, Cambodia, Grenada, Afghanistan, Iraq, Pakistan and Libya,  all without any declaration of war by the Congress.  Harry Truman named the Korean War a “police action” to explain why he sought no Congressional declaration of war.   LBJ claimed that the Vietnam war was waged in response to an attack on an U.S. Navy vessel in the Gulf of Tonkin. A Joint Resolution of Congress authorized the president to use military force to help countries who were parties to the South East Asia Treaty Organization secure “their freedom”.   A later investigation concluded that most of the claims that the Navy vessel was attacked by North Vietnam ships were false.  Nevertheless, 58,000 dead American soldiers and countless Vietnamese and Cambodians resulted from this undeclared war based on those lies foisted on Congress.

The Bush and Obama administrations have ignored the language of the Joint Resolution that limits its targets to “. . . nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,. . . .”  Al Qaeda has been interpreted to mean any person or group that seems to have some wish or intent to do harm to Americans.  The only requirement seems to be that the target must be somehow “associated with” some group, regardless of how amorphous or loosely organized, that can be linked to the phrase “Al Qaeda”.  

At a Senate hearing on May 18, 2013, representatives of the Department of Defense testified before a committee of the Senate.  In response to friendly questioning from Senator Graham they claimed the right to wage war anywhere they found anyone threatening any “terrorist” act against the United States; that the “battlefield” encompassed an area they described as “from Yemen to Boston”.   This testimony astonished even Senator Graham’s political clone, John McCain.  To appreciate the scope of our present lawless and unlimited military machine, see the excerpts published by the Huffington Post.

To summarize:  Both Bush and Obama have used the above-cited 2001 Joint Resolution as a basis for their authority to make war on anyone, anywhere, any time if they can relate some activity, threatened or likely activity of the target to some “future acts of international terrorism against the United States”.    Some times that relationship seems, at least to me, so tenuous as to be credible only to those who, like the audience watching a play, are engaged in a  “willing suspension of disbelief”.   “Six degrees of Separation from Kevan Bacon”, an interesting parlor game, seems to have become a template for the “war on terror”.

The most dangerous power of government is military power.  The United States has the most powerful military force in the history of the world.  The only protection from misuse of that power is the Constitution, a worthless document unless its terms are enforced, either politically through elected  officials or legally in our courts.  During the past seven decades we have passively watched as that military force has become stronger and the restraints that render it safe have all but vanished.

This has occurred for three reasons:  First, American citizens have been terrorized, not by foreign terrorists but by home-grown political demagogues who have used appeals to patriotism and exaggerated fear to convince Americans that constitutional protections against lawless government are mere hindrances that interfere with efforts to protect them against dreadful attacks.  Second:  Elected officials charged with enforcing those constitutional protections have defaulted because of political cowardice or corrupt alliances with corporate business forces that profit from military armament.  Third:  Our courts have been unwilling to halt the erosion of constitutional protection because they perceived the issue to be political, rather than legal and, in cases involving individual rights, have been too willing to accept the so-called “national security” defense that allows government to cloak in secrecy the factual bases, or lack thereof, for its actions.

The “War on Terror”

I have expressed my concern about the undeclared wars that have cost trillions of dollars, hundreds of thousands of lives and devastated several countries.  I am convinced that the costs of those wars, both in blood and treasure, have greatly exceeded any benefit that resulted from them.  I am convinced that none of them, with the possible exceptions of the Korean war and the first Gulf War, were necessary.  So far as I can tell, neither Afghanistan, Pakistan, Iraq nor South East Asia are better off today because America waged war against them.

I am grateful, of course, that many of the leaders of Al Qaeda, a vicious and dangerous organization, have been captured or killed.  I do not believe, however, that tracking them down and dealing with them required the trashing of our Constitution and the various wars that have been waged in response to the attack on September 11, 2001.  Terrorist attacks are crimes committed by criminals.  They are not acts of war and the criminals are not soldiers.

We have criminal laws and orderly constitutional procedures for dealing with criminals, both those found in America and those found elsewhere in the world.  When the September 11 attacks occurred, we should have organized an international  team of law enforcement officials in  a joint effort to locate and apprehend those responsible.  When they were caught, we should have extradited them to America, jailed them, tried them and imprisoned or executed them without violating our laws and without engaging costly and unnecessary wars.

The vast Homeland Security bureaucracy employing 180,000 people, created in the panic following the 9-11 attacks,  had little to do with the successful effort to deal with Al Qaeda.  Neither the Iraq war nor the Afghanistan war has resulted in any appreciable damage to Al Qaeda that could not have been accomplished with a more targeted law enforcement effort. Individual leaders of Al Qaeda have been captured or killed by small teams or specific attacks unrelated to those wars.   Misnaming our reaction to the September 11 attack as a “war on terror” has done little to injure our enemies.  It has done significant damage to our system of laws.

The extra-judicial invasion of privacy spawned by the Patriot Act, claimed to be required because we are in a “state of war”,  has enabled government access, without a warrant, notice or hearing, to our emails and our telephone calls.  Our activities are recorded by ubiquitous cameras mounted on drone aircraft as well as thousands of other stationary locations.  The information about us thus secretly acquired is then secretly analyzed by nameless bureaucrats whose motives and methods are secret,  hidden from judicial oversight  and public disclosure by claims of “national security”.

The Advent of the Drone

The development of drone aircraft capable of carrying explosive weapons and controlled from remote locations have, in my opinion, significantly increased the danger to all of us resulting from the above described expansion of presidential discretion to kill people located anywhere in the world because they are claimed to be, or likely to be or become “terrorists”.  This new weapon sheds the disguise of a “war on terror”.  It is an individualized personal weapon to be used against specific named persons.  In other words, a drone does exactly what a law enforcement officer does:  Seek and kill people suspected of having committed a crime.  As presently used, however, drone killing is done with no pretense of due process.

A thief who shoplifts a candy bar can be arrested only based on probable cause, is entitled to Miranda warnings,  a written statement of charges against him or her, a lawyer and a trial before an impartial tribunal.  If, however, he or she is in Yemen and can be somehow be connected to some group calling itself “Al Qaeda”, he or she can be added to a hit list by a group meeting in the White House and blown up in a drone strike based on secret evidence never disclosed.

If this does not concern you, because you are confident that Barack Obama and his administration would not misuse this authority, I have just two words for you:  Ted Cruz.  He will probably run for President in 2016.  How much are you willing to wager that he won’t be elected?  Your life and your liberty?  Did you think American voters would grant George W. Bush a second term in 2004, given the fact that his disastrous first term had embroiled us in a senseless war in Iraq, converted a budget surplus to a giant debt, and allowed Wall Street bankers to wreck our economy?  No?  Neither did I.  But they did, by a larger margin than his first election, the one they had to steal.

The Supreme Court and the “War on Terror”

In Ex parte Merryman Chief Justice Roger Taney ruled that the President, even if the country was at war, could not suspend the writ of habeas corpus without Congressional authority.  The  case is an interesting one.  In 1861, the Civil War was beginning.  President Lincoln, desperate lest Rebel sympathizers in Maryland cut off Washington from the rest of the union , called up the loyalist Maryland militia to defend against the Rebel forces.  He declared martial law in Maryland and told General Winfield Scott that, if he found it necessary, he could suspend the right to habeas corpus and summarily detain anyone who acted against union forces.

John Merryman was a sympathizer with the southern cause and a lieutenant in the Maryland militia.  He committed  acts of destruction and sabotage and was arrested, charged with treason by a Brigadier General in the Union Army and jailed at Fort McHenry near Baltimore.  He filed an application for a  writ of habeas corpus in the Federal Court presided over by Chief Justice Taney.  Taney was a Democrat and hated Abraham Lincoln.  He granted the writ and ordered Merryman brought to his court.  When the writ was served, the General in charge of Fort McHenry responded with a letter declining to recognize Taney’s writ.  Taney issued a writ of attachment ordering a federal marshal to arrest the general and bring him to court.  The marshal was denied entry into the Fort.  Taney responded with a lengthy opinion castigating Lincoln for arrogantly presuming to possess authority capable of suspending rights protected by the Constitution.  Taney quoted from the Declaration of Independence.  One of the justifications offered for revolting against King George was that “He has affected to render the Military independent of and superior to the Civil power.”

President Lincoln ignored Taney’s decision as well as several other federal court decisions rendered thereafter agreeing with Taney.  Finally, in February, 1862, Lincoln rendered the issue moot by releasing on parole all political prisoners.  However, a month later, after Congress refused to grant him authority to suspend habeas corpus, he defiantly suspended the writ throughout the country.  The matter was finally settled in March, 1863, when Congress enacted the “Habeas Corpus Suspension Act”.

[An aside:  After reading this account of Lincoln’s disdain for the Constitution, I was reminded that Obama admires and has carefully studied Lincoln.  I assumed he admired Lincoln’s noble assault on slavery and his wise moderation toward conflicting views.  After reading this case, I wonder if my political support of Obama has blinded me to other aspects of his philosophy  and admiration of Lincoln which, to me, are not so attractive.  ??]

The next case pertinent to the present inquiry was Ex parte Milligan, decided in 1866.  Lambdin P. Milligan and several other Southern sympathizers planned to free Rebel prisoners or war held in Yankee prisons, organize them into a military force and take over the governments of Indiana, Michigan and Ohio.  He and several of his cohorts were arrested, tried before Military Commissions and sentenced to death for treason.  The Civil War ended before the date of Milligan’s executiion.  He filed an application for a writ of habeas corpus and the Supreme Court granted his application.

The Court ruled that martial law and trials by military commissions were proper in three situations:  First:  Military courts or commissions could try members of the armed forces.  Second:  During a war, a military force occupying enemy territory could try civilians in military courts or commissions during the continuation of the war and until some new government was established.  Third:  In time of some catastrophe or chaotic event when regular government courts were not available, martial law could be declared and the writ of habeas corpus temporarily suspended.

The Court ruled that Indiana, where Milligan was arrested, was not occupied territory and that trial before a military commission was not proper because the courts were available.  Therefore, Milligan’s application was granted, the Court ruled that the trial before a Military Commission was unconstitutional and he was freed.

In Johnson v. Eisentrager, decided in 1945, the Supreme Court held that German soldiers arrested, tried and convicted in China by a military commission of having fought with the Japanese army against United States forces, and later detained in a  prison in Germany could not invoke the jurisdiction of an American federal court to hear an application for habeas corpus.  The applicants were not American citizens and, at no time had been on any American territory.  They were convicted of committing acts of war against the United States after the war against Germany was concluded. Justice Jackson held that  persons who were engaged in acts of war against the United States in a foreign land, who were neither American citizens nor aliens located in an American territory, had no right to assert rights protected by the U.S. Constitution.

Ex parte Quirin is the Supreme Court case relied on by Bush and Obama for their authority to deprive “enemy combatants” of any semblance of due process, imprison them indefinitely without any formal charges against them, and to deny or severely limit their access to counsel or to any hearing before an impartial tribunal.

That case involved German saboteurs.  Four debarked from a submarine in 1942 at Long Island, New York.     The others landed on the east coast of Florida.  They wore incomplete German uniforms but changed to civilian clothes after landing. Their mission was to destroy various strategic targets in the United States.

One of the saboteurs, Hans Haupt, was an Ameerican citizen.  The other seven were German citizens.  They were tried before a military commission, established pursuant to an executive order from FDR and sentenced to death.  They were represented by counsel.  They filed an application for habeas corpus, challenging the legality of their convictions.  The Supreme Court denied their application for a writ of habeas corpus.  Six of the applicants were executed.  The other two were sentenced to prison terms.

The Court did not deliver an opinion until several months after the executions.  Justice Stone delivered a per curiam opinion for a unanimous Supreme Court denying their claims.  He based his decision on the fact that war had been declared on Germany; that they were actively engaged in making war on the United States; that they were not soldiers and, therefore, not entitled to treatment as prisoners of war.

The opinion was based on  draft opinion written by Justice Jackson.  There was unanimous agreement that the applicants were not entitled to a jury trial and that they could be tried by a military commission.  The justices were divided on the extent to which Congress could circumscribe the discretion of the President with respect to the trial of the saboteurs.  Because the Court concluded that the detention of the Germans was legal and that their trial by a military commission was proper, they found it unnecessary to rule on the procedure followed by the commission or the extent of the President’s authority to order such trials.

Louis Fisher, an expert on the law of war and, especially on the use of military commissions, has written extensively and critically on the procedure followed by FDR concerning these German saboteurs.  [See Louis Fisher, “Military Tribunals:  A Sorry History”, e.g.  .  This essay is available online.]

Having read this decision as well as some of the commentary concerning it, I do not think it is a Mother Hubbard clause added to the Constitution granting discretionary authority to the President to ignore the Congress and the Constitution in all situations involving terrorist threats against the United States.  It is disturbing to me that our former constitutional law professor President disagrees.

Another Supreme Court case pertinent to some of the issues raised here is U.S. v. Verdugo-Urquidez (1990).  The Defendant, a Mexican citizen residing in Mexico, was suspected of smuggling dope into the United States.  With the cooperation of Mexican authorities, U.S. law enforcement officials searched his home in Mexico, found evidence of his crimes, arrested him and extradited him for trial in the U.S., where he was convicted.  In this appeal, he argued that the search in Mexico violated the 4th Amendment’s protection against “unreasonable searches and seizures”.  The Court disagreed, holding that an alien living in a foreign country was not protected by the amendment because it began with the statement that “The right of the people to be secure . . . shall not be violated. . . .”  The Court stated that “the people” refers to residents of the United States, not residents of foreign countries.

The Court, however, cited the following distinction: “That text, [the Fourth Amendment] by contrast with the Fifth and Sixth Amendments, extends its reach only to ‘the people.'” (emphasis added) They continued, “Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. “The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants” (emphasis added).  ”

In other words, the Court made clear the fact that, if the defendant had been deprived of his Fifth and Sixth Amendment rights, even if the deprivation occurred in Mexico and even though he was a Mexican citizen, that circumstance, if material to his case, might have vitiated his conviction.  Because he relied only on a 4th Amendment violation, his conviction was affirmed.

In 2004, the Supreme Court decided Hamdi v. Rumsfeld.  Yaser Esam Hamdi was born in Louisiana in 1980.  As a child, he moved to Saudi Arabia with his family.  In the Summer of 2001, twenty-year-old Hamdi went to Afghanistan to work as a relief worker.   He was taken into custody by the Afghan Northern Alliance during the American invasion of Afghanistan.  They turned him over to the U.S. Military.  He was interrogated and then transferred to Guantanamo.  When the authorities there discovered that he was an American citizen, he was transferred to a Navy brig in South Carolina.

His father, as next friend, filed an application for habeas corpus in a federal court.  The federal judge conducted a hearing and, after listening to the government’s case, concluded there was no persuasive evidence that Hamdi was an “enemy combatant”.  The government appealed and the 4th Circuit reversed, ruling that the court had no jurisdiction to challenge  the discretion of the President concerning the treatment of a person accused of having participated in hostile activity during a military invasion.  The case was remanded to the district court, which again ruled in Hamdi’s favor.  The 4th Circuit again reversed and Hamdi appealed to the Supreme Court.

The Supreme Court took the case and, in 2004, ruled that the government had no right to detain an American citizen without complying with the requirements of due process.  A four-member plurality of the Court ruled that “due process” in view of the government’s claim that Hamdi had engaged in active hostilities in a combat zone during a military invasion, did not mean that Hamdi had the rights of a defendant in a peacetime criminal proceeding.  They did, however, firmly reject the Bush administration’s claim that federal courts had no jurisdiction to evaluate Hamdi’s treatment. After describing the manner and timing of Hamdi’s arrest and detention, the Court stated:  “[W]e necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.Youngstown Sheet & Tube,’ 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. […] Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. […] it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.” (emphasis added)

The Court also limited the scope of the “enemy combatant” classification.  Here is their language:  “There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use. […] A citizen, no less than an alien, can be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict against the United States,’ […]; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict [as an alien].[…] Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force’, Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. […] Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be ‘part of or supporting forces hostile to the United States or coalition partners’  and ‘engaged in an armed conflict against the United States’ to justify his detention in the United States for the duration of the relevant conflict.”(emphasis added)

To me, this means that when the Afghan war concludes, those alleged to have been “enemy combatants” in that war, must be released.  The Court clearly was not willing to agree to an endless “war on terror” to extend the detention powers of the government.

Following this decision, the government made a kind of modified “Br’er Rabbit” deal with Hamdi.  They agreed to drop all charges if he would renounce his American citizenship and agree to be deported to Saudi Arabia, where his family lives. He agreed not to travel back to the U.S. or to several other places in the Middle East without approval of the Saudi government.   Apparently, they knew full well that they could not prove their accusations against the young man.  And, oh yes, he also had to agree not to sue them for having abused and imprisoned him for several years.  As Chris Dixie, my law partner, used to say, “These people have no class.”

In Rasul v. Bush (2004),  the Supreme Court ruled that citizens of Great Britain and Australia, arrested in Afghanistan and Pakistan during the Afghan war, accused of actively engaged in hostilities against U.S. forces, had due process rights to challenge their detention at Guantanamo.  The Court ruled that their citizenship was not determinative of their rights to enforce constitutional limits applicable to the government of the United States; that they could go to federal court to enforce those limits by filing an application for habeas corpus.

After these defeats, Bush and his supporters in Congress crafted a set of rules for military tribunals.  That effort tried to render useless the rights of prisoners affirmed by the Supreme Court in Hamdi and Rasul.   The Congress also purported to strip the federal courts of jurisdiction to consider challenges to the legality of these measures.

In Hamden v. Rumsfeld (2008), the Supreme Court ruled that those efforts were unconstitutional.   The Court ruled that any military tribunal scheme had to comply with the Geneva Convention as incorporated into the Uniform Code of Military Justice.  They also disallowed the effort of Congress to deprive them of jurisdiction to enforce the Constitution.

One of the interesting sidelights of the Hamden case was an amicus brief filed by Senators Lindsey Graham and John Kyl.  In their brief, the Senators presented an “extensive colloquy” purporting to show that the Congress was aware, when they enacted the “Detainee Treatment Act of 2004”, that it would strip federal courts of jurisdiction to hear challenges to the legality of the Act.  The “extensive colloquy” was added to the record after the debate, a detail not mentioned in the Senators’ brief.  Again, “no class”.

Summary

These cases establish, for me, three propositions:  First, the protection of “persons” in the Fifth and  Sixth Amendments applies to citizens and non-citizens if their life, liberty or property is being threatened by the United States government.  Second:  Even if the government accuses a person of having engaged in active hostile acts in a war zone, if the accused person is in a territory subject to the jurisdiction of the United States courts, the accused is entitled to challenge his detention and treatment by filing an application for habeas corpus in one of those courts.  Third, neither the Congress nor the President has the right to strip federal courts of jurisdiction to enforce these rights.

Anwar Al-Awlaki

The assassination of Anwar Al-Awlaki convinced me that the hazy “Al Qaeda” label, the willfully misunderstood language of the AUMF and the flexible designation of “enemy combatant”, combined with drone technology has finally confronted us with a President and a military/intelligence establishment that threaten our lives and liberty in far more serious ways than any Muslim fanatic is likely to do.

Anwar Al-Awlaki was born in New Mexico.   In late September, 2011, drone aircraft controlled from a Middle-East CIA location, fired missiles at a car traveling across a dessert in Yemen.  Al-Awlaki and Samir Kahn, both American citizens, were killed.  Kahn was the editor of a violently anti-American internet publication, Inspire.  Al-Awlaki was a fiery Muslim Imam who used YouTube and emails to preach violently anti-American diatribes, including statements that praised the killing of soldiers and others at Ft.  Hood by Nidal Malik Hasan, an Army psychiatrist on November 5, 2009, the acts of a martyr.

The American press has highlighted the fact that, during the months before the Ft. Hood attack, Hasan and Al-Awlaki had exchanged several emails.  The emails were initiated by Hasan, in apparent response to Al-Awlaki’s YouTube postings.  There is no evidence that Al-Awlaki urged Hasan to kill anyone or that Al-Awlaki helped Hasan plan the attack.  The Department of Defense has not charged Hasan as an “enemy combatant” or claimed that he is being held as a prisoner of war.  He has been charged with murder and is being prosecuted under the Uniform Code of Military Justice.

On September 11, 2001, Anwar Al-Awlaki was a Muslim preacher at a large mosque in Falls Church, Virginia.  He denounced the attack as an outrage, was interviewed on TV,  profiled in a piece in the Washington Post and was featured in NPR episodes concerning the 9-11 attacks.  When the FBI learned that one or more of the 9-11 attackers had attended a mosque in Los Angeles when Al-Awlaki had been the imam there, he was interviewed and cleared of any wrongdoing related to that circumstance.

The story of how this American Muslim preacher became a target for assassination by an American President is a long and interesting one.  I have read two versions of this story.  One, written by New York Times reporters, repeats the government’s version.  The other, written and narrated by Jeremy Scahill, a writer for The Nation and a longtime correspondent for Democracy Now, the liberal media program presided over by Amy Goodman, is based on information gleaned from non-governmental sources as well as from current and former members of the American intelligence community.  The Times’ version generally justifies, with some reservations, the government’s case against Al-Awlaki.  When it mentions the gaps in the government’s factual case, it gives the government the benefit of the doubt.  Scahill is less forgiving.  He also adds many details left out of the Times’ version.

Here is a link to two Times stories which fairly represent the government’s version:  Times One  Times Two

Here are links to a long Democracy Now interview of Jeremy Scahill by Amy Goodman.  It is in two parts.

Democracy Now One  Democracy Now Two

Here is a link to a video of Jeremy Scahill stating his criticism of the government’s handling of the Anwar Al-Awlaki killing.  Scahill video

These are long stories.  I know that, with busy lives, you may not have time to have read this far in this too-long essay.  I understand this.  I have indulged myself by writing this and doing this research because I believe that America is, as the neo-cons keep insisting, an exceptional place, but not for the reasons the neo-cons claim.  I don’t think our exceptionalism is based on our ability to bully people and nations.  We are an exceptional nation because we have declared ourselves willing to accept the substantial risks of being  free.

We do not value our safety more than our freedom.  We respect our government because it is our creation, based on our authority and subject to a written enforceable contract we drafted and adopted.  We did not copy it from a form book.  We haggled, raged and argued about it and  we refused to agree to it until the first ten amendments were added, but finally, recognizing that it was imperfect and the result of many compromises, we ratified it.  Our Constitution and the government it established are unique accomplishments, unmatched in the history of human efforts to govern.

I think some of the core ideas that distinguish America from all other nations are under serious attack by well meaning but nevertheless dangerous people.  And, unfortunately, technology has produced the ideal weapons, like drone aircraft, powerful tiny cameras and computers capable of sorting and compiling information about us on a scale impossible to imagine.  These weapons, eagerly adopted by those who perceive government’s power as a desirable means of insuring our safety, have  caused a perilous imbalance between the force of government and the power of a democratically empowered population.  Delegating to military agencies functions traditionally left to civilian law enforcement authority has become an accepted circumstance, claimed to be necessary to insure our safety.  Secrecy has been allowed to conceal information that is necessary to alert us to government judgments and choices that threaten our freedom and render impotent the protection we sought when we adopted our Constitution.

After thinking about all this, I had to organize and write some kind of structured statement of my concerns.  This enables me to sort out my fears and confront them with pertinent facts.  Only then can I say to myself, “This is the way this problem developed.  I see how some of the pieces fit together.   I now have an outline in my brain, a kind of scaffolding  to adorn with future information.  I think I can now tell the difference between real peril and distracting rabbit trails.”

An Afterthought

Finally, for those of you, if any, who are still with me:  I want to share with you a video of a “good ol’ boy”‘s YouTube tirade against the government that finally works up to a justification for killing American soldiers.  This is the kind of rhetoric that Anwar Al-Awlaki is accused of using in his YouTube rants.  As you watch it, understand that the speaker is the co-owner with his wife of a weapons store and that this is one of 170 videos posted by him on YouTube.  See philliptjrYouTube

I think this guy is pathetic, but I damn sure don’t want some drone to drop a bomb or a missile on him.  Not in my country.  And, by the way, I am aware of the fact that I have just written a tirade of my own about the government.  I insist there is an important difference between the two of us:  I think it is vital that he be able to say whatever he wants to say.  He probably thinks I, with my opinion about our gun culture, ought to be shot.

Bob

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