European Cuba

July 10, 2015 § Leave a comment

Some Idle Speculation

It appears to me that the EU is not making a good faith effort to guide Greece toward a viable economy.  My suspicion is that, led by Germany and some European financial oligarchs, the EU is really dead set on forcing the Greek people to disavow the results of its recent election of a left-wing government.  If I am right, the EU is becoming a sinister enemy of democracy, not a healthy alliance of European economies.

This smells to me like what the United States tried to do when Fidel Castro and Che Guevara freed Cuba from the oppression of Batista.  We are now, decades too late,  making amends for that effort.  The bad odor of the EU’s treatment of Greece is more pungent because it seems to be driven by Germany.  Some of the virulent rhetoric attacking Greece sounds like an echo from the 1930’s.

Yes, I know it has become verboten to make reference to Germany’s Nazi past, but we, during the past few months, have witnessed how ugly pasts are like crab grass, aggressive and hard to kill.   Half our country, a hundred and fifty years ago,  embraced government protection of an economy based on slavery.  A brutal war was required to end slavery.  But, for the past few months, a significant segment of our citizens have been passionately defending its symbols, referring to them as respected relics of cultural pride.  Today, as South Carolina congratulated itself for lowering the Confederate flag, I heard a TV commentator remark that a recent poll showed that 57% opposed the decision to do so.  Those opposed contend the flag represents a valued “heritage” and should be regarded as homage to their ancestors who fought in the Civil War.

I assume there are many Germans who have similar feelings about WWII and their “heritage” and ancestors.  But, just as Southerners who honor the Confederate flag don’t discuss the horrors of slavery, I suspect the Germans who still recall with pride the glory of the 1930’s, don’t discuss the horrors of the Holocaust.

My suspicion is that, while the rhetoric has changed,  most of those who honor the Stars and Bars have no enthusiasm for ending the continuing prejudice and racism that remains a shame and a plague in our country.  I also suspect that there is a broad overlap between the German minority who feel some bitterness about the outcome of WWII and those who are prominent in Germany’s right wing political faction bitterly opposed to the democratic socialist government of Greece.

If  I’m Right

If I’m right, Germany will not abide by any reasonable effort to save Greece from an economic meltdown.  Unless, of course, its elected leaders resign and call for a new election.  Angela Merkel will have the same reluctance to oppose the extremists in her parliament as has been exhibited by some GOP presidential candidates toward lowering the Confederate flag.   The political right wing in America successfully delayed the recognition of Cuba for fifty years and, even now, Obama’s executive decision to right this wrong has not been supported by the GOP leadership.

If Only

I wish both the Russian  and Chinese governments were not going through an economic crisis.  The timing is terrible.  I think it would be great if either of those governments would send an emissary to Greece with this message:

“It seems you guys are having some trouble getting your so-called friends to lend you money on terms allowing you to stabilize your economy.  Tell you what:  How about we lend you some money with a structured pay-out that will permit you to survive your problems with dignity and compassion for your people.  Of course, part of the deal will be:  We partner with you in deals with African nations and we get to establish military, especially naval,  bases in your country on favorable terms.  See, we Russians have been troubled for centuries with limited access to the Mediterranean  Sea.  And we would like to have a convenient base from which to launch favorable trade deals with Africa.  We think this could be the beginning of a great alliance.  We communists are flirting with privatizing some of our economy and you Greeks have taken some steps toward socializing some of your economy.  If we’re smart, that could be the basis for mutual success.”

I know this ain’t gonna happen.  The Chinese don’t know how to manage a stock market and the Russians have never learned how to manage their economy.  When they have to choose guns or butter, they always choose guns.  [We make the same choice, but we do a better job of marketing our guns.]  Still – it’s fun to speculate what such a deal would do the European bullies who are enjoying pushing Greece around.  It would give Angela something else to think about – might get her mind off the right wingers who are making so much noise about Greek socialism.  Nothing like a nuclear-armed commie neighbor to focus the mind.

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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.

The Prism of Work

June 3, 2013 § 4 Comments

Summary

In the following essay I will describe a carefully reasoned dissent from my two “Lynch Law” efforts.  I will also try to explain the way my thinking about the issues differs in some fundamental ways from the dissenter’s.  I will attempt to do this without discounting the dissents’ reasoning.

The Dissent

In response to my posts entitled “Lynch Law” and “Lynch Law Two”, I have received two thoughtful dissents from a reader who shares my political beliefs but rejects my reasons for criticizing President Obama’s terrorism speech.   The dissenter made three cogent and well reasoned arguments:

First:  He wrote that the Authorization for Use of Military Force (AUMF) is a fact; that regardless of whether it was wise, appropriate or necessary, Congress adopted it by an overwhelming vote (unanimous in the Senate; one dissenting vote in the house)  hence Obama, the President, should not be faulted for using the authority it granted to the presidency.

Second:  He wrote that it is a fact that there are terrorists and terrorist networks in the world that threaten to harm the United States.

Third:  He wrote that, based on the obvious intent of its framers, the AUMF should be interpreted to authorize the President to locate and either kill or capture any terrorist in any part of the world outside the United States if the target poses a threat to the United States.

Here are the words of the AUMF:  “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.”

To the dissenter, the plain meaning and intention of this sentence can be expressed as follows:”That the President is authorized to use all necessary and appropriate force . . .  in order to prevent any future acts of international terrorism against the United States . . . .”

I contend the past tense verbs used in the AUMF to describe its targets limit the scope of its authorization for use of force.  He responded that, on the contrary, they were comparable to the recitation of Japan’s transgressions in the 1941 declaration of war against that nation.  As he correctly observed, the fact that the transgressions  occurred before the declaration did not limit the scope of our war against Japan.  To illustrate this point, the dissent posed a hypothet.  He stated that if, when the war was closing in on the Japanese homeland, the island of Honshu had changed its name, became no longer a part of “Japan” and opted to fight on after Japan surrendered,, we plainly would have paid no attention to the name change and would have proceeded to make war on the inhabitants of that island without further Congressional authorization .

Finally, he observed, again correctly, that some very good lawyers advising Obama disagreed with my analysis and they could not fairly be lumped in with John Yoo as lawyers whose reasoning was based on ideology.

Some Comments on the Dissent

It is hard to argue with the dissent’s contention that when Congress adopted the AUMF, it intended to authorize a broad military attack on any foreign organization, country or individual that posed another threat of a 9-11 type attack on the United States.  The AUMF was adopted just seventeen days after the stunning attack of September 11, 2001.  Emotions were running high.  Anger and fear were palpable and Bush, the NeoCons and talk radio demagogues were in full cry.

Any analysis based on “legislative intent” is almost always a fiction because each voter in the body had his or her own, essentially unknowable, intention when he or she voted.  Having said this, however, it is true that, as President Bush proceeded to interpret AUMF as a license to torture prisoners, intercept emails and phone calls, use dragnet arrests to jail large numbers of Muslims and establish “black sites” all over the world where prisoners were held incommunicado regardless of  the Geneva Convention or any other law of war, Congress,  generally remained silent.  And that silence can be fairly interpreted as assent to his actions.

It is also true, however, that as reports began to surface of Bush’s wild-west carnival of horrors,, some members of Congress began withdrawing their support.   By 2005, there was some support in Congress for his impeachment.  So, the “intent” of Congress was an evolving phenomenon.  In my first “Lynch Law” post, I linked to a Huffington Post video of the stunned reaction of some Senators when Pentagon representatives, testifying before a Senate committee, declared their understanding of the AUMF’s breadth of authority.  Senator McCain, who rarely sees a war he doesn’t want to wage, said he did not think Congress intended such an unfettered grant of authority.  Here again is that link:  Huffington

So far as concerns the dissenter’s creative hypothet about the name change of the island of Honshu, I am not as sure as he is that if that had occurred and a new nation was thereby actually created, further Congressional action would mot have been required.   A somewhat similar occurrence happened when Nixon began military operations in Cambodia during the Vietnam war.  He tried unsuccessfully to keep his expansion of that war secret but, of course, bombs, helicopters and armed troops are too obtrusive to be invisible to reporters.  He didn’t bother to ask Congress for approval because his disdain for the niceties of constitutional government is legendary.  That may be an inapposite example, since the Vietnam war itself was probably illegal since it was based on a false report and not on a formal declaration of war by Congress.

This issue, the identity of those against whom the AUMF authorized deadly force, is at the heart of my disagreement with the dissent.  If the authorized targets of the AUMF are subject to discretionary selection by the President, then we have a Commander in Chief with access to a world-class military machine, unrestrained  concerning its use other than his judgment and presumed devotion to our form of government and a requirement that he use it only to protect us from terrorist attacks.  There is a vast difference between a President with constitutionally limited powers and a protector charged only with the task of keeping citizens safe.  See Orwell, “1984”.

I regard the result of the dissent’s reasoning, especially on the third issue, as troubling  In the remainder of this essay I will try to explain why.

A Lawyer’s Way of Interpreting Contract Language

Statutory interpretation and contract interpretation are based on generally similar legal principles.   In the case of federal statutes, the debates preceding the enactment of a law afford clues to the intentions of the framers not available with respect to most private contracts.  Still, the same principles apply to both.  The objective is to give effect to the intention of the parties who draft the language, provided they have expressed that intent in a form that can be determined without ignoring the words used to express it.

That is, the “four corners” rule applies.  The writing must be interpreted based on the writing within the “four corners” of its documentary record.  The drafters will not be allowed to walk away from the drafting and, next day,  proclaim that some of them “really did not mean what the words state.”  Contracts and statutes are written because they are intended to be “time binding” events.  That is, they fix in time the agreement of the parties.  That agreement, of course (and contrary to the foolishness of Justice Scalia’s “original intent” obsession) can be couched in deliberately ambiguous language, leaving room for later application to changing circumstances.  Our Constitution is worded  that way.  “Interstate commerce”, was not intended to apply only to the 1789 forms of commerce.  “Searches”, as used in the 4th Amendment was not intended to apply only to the technology available to searchers in the 1700’s.  Oliver Wendell Holmes wrote that a “word is the skin of a living thought” and the operable word is “living”.

One reason lawyers [I am not comfortable with the word “attorney”.  It is based on the French word attourne,  one to turn to.  French words seem to me generally effete and pretentious.   I think of myself as a lawyer (Middle English originally “lawyere”)]  have a well-deserved reputation for being trouble-makers is that, when they analyze the language of a contract or any other kind of agreement, they try to imagine how it would permit one party or the other to use its language in the worst, unfair and disagreeable manner at the expense and inconvenience of the other party.  Then they add or subtract whatever language is required to preclude such an event or interpretation.  They regard that as appropriate, regardless of how reasonable and agreeable the parties are when the contract is drafted.

That is the way I analyze the language of the AUMF.  I seek an interpretation of its language that would appropriately restrain the discretion of Ted Cruz, not Barack Obama.  So I choose an interpretation called the  “plain meaning” rule.   The dissent chooses to interpret it according to the “intent of the framers” rule.

Both approaches are accepted by courts in appropriate situations.  There are limits to each approach.  For example, drafters of a contract are not allowed to use words in some sense other than their common meaning unless they specify the intended meaning.  This does not prevent use of “terms of art” if, in the context of the contract, the meaning of such terms are discernible and are generally understood in the industry or environment in which the contract is drafted.  It does, however, preclude one of the parties from contending, for example,  that the phrase “bay horse” was intended and understood by the parties to mean “roan horse” when the contract was drafted.  If that were permitted, the contract would depend on verbal testimony and would prevent courts from being able to enforce the written language of the contract, thus vitiating the time binding  purpose of written agreements.

As I read it, the identity of those affected by the AUMF is plainly stated in words used in their ordinary sense.  To illustrate this point suppose, instead of “the terrorist attacks of September 11, 2001”, the AUMF stated “the attack on the United States consulate in Benghazi on September 11, 2012″.   Wouldn’t the targets be limited to those persons, nations or organizations” that were actually involved in that attack?  Would a reasonable interpretation of that statement assume that it would justify a drone attack on someone in Somalia or Pakistan?  I don’t think so.

This narrow interpretation would not conflict or dilute the meaning of the concluding phrase, “. . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”  One standard purpose of apprehending and punishing wrongdoers is to make example of them to discourage others from attempting other crimes.  That purpose is served without waging a wide ranging assault on all similar but different  wrongdoers.

Because the U.S. Department of Justice and Pentagon and White House lawyers disagree with me, I cannot deny that there are differing ways to interpret the language.  What I do argue is that, given the consequences of the broad interpretation of the AUMF, there are strong policy reasons for interpreting it narrowly rather than broadly.

Interpreting it as broadly as the dissent and the just stated government lawyer do, results in a state of martial law throughout the world outside the boundaries of the United States.  It results in a state of war on a boundless battlefield.  The law of war cannot apply to that state of war because there is no way objectively to identify enemy combatants.  The distinction between enemy soldiers and civilians is rendered impossible.  If one is accused of being an enemy, that is sufficient to impose the death penalty.   Analogies to wars between uniformed armies cannot be applied.  In other words, neither the law of war nor constitutional law applies.  The President becomes the ultimate and sole “decider”.

President Obama’s speech on  terrorism was becomingly uneasy with this unlimited authority.  He disclosed that he is considering various ways of structuring self-imposed limits on his war making authority.  At the same time, and in the same speech, however, he claimed the right to make the decisions about such limits and how they would be administered.  That claim converts his speech into a discussion of executive policy.

Policies, unlike laws and constitutional restrictions, can be changed from one administration to another.  Presidential authority can be limited in only two ways:  By a formal declaration that the authority is no longer claimed, in this case by either the President or the Congress, or by the judgment of a court of appropriate jurisdiction.   Obama’s speech will serve as President Ted Cruz’s justification for his use of the AUMF powers because it satisfies neither of those ways.

The Political Dilemma

I recognize that my arguments, if credited by President Obama, would confront him with a dilemma fraught with  peril.  If he goes before the American public and declares that the AUMF did not authorize the actions he has taken based on it, he will be confessing to wrongdoing that could have dire consequences for him, for his political party and for the standing and reputation of the United States in the world.  I know that will not happen, nor, given its consequences, should it happen.  I think that instead, the President should draft a modification of the AUMF that abjures the power to make war on terrorists, terrorist organizations or anyone else.  It should authorize the President to use American intelligence forces and law enforcement agencies, domestic as well as international, to identify criminals who participate in planning or executing harmful acts directed against the United States.

He should explain to the public and the world that the United States is a nation of laws based on a Constitution.  That we will defend ourselves against criminal acts and assist and cooperate with other nations seeking to defend themselves from such acts.  He should state that his judgment on this matter is based on his personal experience with conducting these efforts as acts of war and that he has discovered that a state of war without identifiable, specific classes of enemies and without identifiable national boundaries is inconsistent with the laws of war as well as the system of laws and constitutional protections that are cherished by Americans.  He should state that, rather than craft a new system of courts to deal with these criminals, he is confident that the American judicial and criminal justice system is adequate to deal with the kind of criminal behavior the new congressional authorization will target.

This switch from a “war on terror” to pursuing criminals who seek to harm the United States would require that, before a person could be branded a “terrorist” subject to capture or death by whatever means are reasonably necessary, a federal grand jury would have to indict him or her and, based on that indictment, a warrant would have to be obtained from a federal magistrate or judge.

Grand jury proceedings are secret, so compromising information sources would not be required.  Federal law is entirely adequate to deal with criminal acts before they are actually completed.  Almost all federal crimes are accompanied by related criminal laws that make conspiracy to commit the crime a separate and indictable offense.  This indictment and warrant process would, however, add the judgment of a grand jury and a judge or magistrate to the process of authorizing government killing.  It is a process based on a very long history;  a history that is littered with the results of government killing without such safeguards; a history that caused the designers of our country’s government to include this process as part of our law.

Do I think this will happen?  Probably not.  But I am sure if it did happen it would insure Obama’s place in history along with Abraham Lincoln as a President who took the risk necessary to preserve a vital and noble feature of this country:  Its patriotic proud respect for its Constitution,  justice and the rule of law.  He would become a revered icon of our “land of the free and home of the brave”.   Not a bad legacy and poetically symmetrical:  From Lincoln, who freed the slaves, to a black president who, in an act of humility, affirmed this nation’s tenacious devotion to its Constitution as a protector of freedom.

A Solution to the “Hiding in Caves” Problem

In Obama’s  speech, he said that his drone “death from above” capability was necessary when the threatening terrorists were hiding in caves located in countries that would not or could not gain access to them.  If Obama took my advice I would have to offer a solution to that problem.

A solution is already part of our legal tradition.  In 1958, when the State of Alabama refused to comply with the Supreme Court’s Brown v. Board of Education decision, Congress enacted a statute, called the Force Act, authorizing Eisenhower to send the National Guard to Little Rock to protect black students who sought public education in a previously all white school.  Congressional action was necessary because the 1878 Posse Comitatus Act, as part of the the settlement of the Samuel J. Tilden v. Rutherford B. Hayes presidential election contest, prohibited federal troops from enforcing state laws, thereby ending Reconstruction in the South and putting the Republican Hayes in the White House.   The 1958 statute did not repeal the Posse Comitatus Act.  It merely granted specific authority to solve a specific problem.

This kind of Congressional authority could be sought if law enforcement authority proves incapable of dealing with a specific terrorism problem.  In most cases, secrecy would not be necessary.  If part of the information submitted to justify the authority sought needed to be secret, that could be accomplished in committee hearings  conducted behind closed doors.  That circumstance would be unlikely in most instances.  The recent example of Anwar Awlaki’s drone killing did not result from secrecy.  His name on a “hit list” had been mentioned in press reports for months before he was finally killed.

The point is that the checks and balances system of our government would be restored and unlimited presidential authority would be avoided.

At the present time, we are embroiled in a national debate over limiting the discretion of the IRS and the subpoena power of the Justice Department versus the privacy of news reporters.  I suggest that carefully limiting the war powers of the President is far more important than either of these matters.

The Prism of Work

I entitled this piece “The Prism of Work” because, when faced with reasoned dissent from a man who generally shares my beliefs and opposes those whom I oppose, I had to ask myself, “What has happened to you?  How did you arrive at this point, attacking a President whom you stoutly supported and respected;  motivated to write several pages of diatribes that sound like Rand Paul’s denunciation of ‘big government’?  Have you, at last, slipped your moorings and become a candidate for the Tea Party?”

You will not be surprised to learn that I reject that characterization, but that doesn’t mean that I haven’t had to question why, in this context, I feel so strongly suspicious of government power.

The answer is that much of the work I did for more than fifty years consisted of arguing against discretionary authority.  My work for labor unions often consisted in opposing management decisions to fire, demote or otherwise discipline some employee.  The tension was usually between contractual protection of seniority versus the “management rights” discretion of company supervision to manage the workforce.  In fact, in law school I wrote and defended a research paper in a labor law seminar which argued that the concept of “management rights” was no longer appropriate because enterprise ownership was no longer held by the craftsmen who performed the work, but by the corporate financiers who furnished the capital.  I contended that allowing money managers to manage production processes was inappropriate and illogical.  I did not persuade my professor or any of the other members of the seminar, but I persuaded myself.

In addition to these arguments based on private contracts, I spent several years representing public school teachers, students and professors in government supported colleges and universities.  My opponents in those cases were school superintendents, college and university department heads, athletic directors and governing boards.  I was always trying to impose due process or First Amendment limits on managers who claimed the right to make subjective, discretionary decisions.

I think that record left me with enhanced sensitivity and pervasive hostility toward unfettered authority.  My experience was that, in the absence of accountability based on some objective limits, people with authority were often prone to defensive hostility toward any challenge to their decisions from those whom they supervised and managed.  They feared public exposure of their choices and actions.  They were uncomfortable at the prospect of being judged by any independent arbiter.

So, given this work record, the notion of a runaway Commander in Chief of the U.S. military establishment rang just about every alarm bell in my brain.

George Lakoff, a professor of linguistics has written extensively about the way that “framing” issues determines the way our brains process them.  He has also offered evidence that, over time, presenting an issue framed in a specific way causes changes in the way we react to similar issues.   I have written about this and Lakoff’s book, The Political Mind  in a previous post entitled Recent Thoughts.  I think this is pertinent to my reaction of the issues raised in this essay.  Over and over, as part of my work, I framed issues for judges, juries and arbitrators that equated legal limits on government and management discretion with “truth, justice and the American Way”, just like Superman taught us.

Thorstein Veblen anticipated some of the brain research done by Lakoff and others in his 1904 book, The Theory o f Business Enterprise.   Veblen wrote before the invention of MRI’s and brain scans, but he was a keen observer of human behavior.  He wrote about the “discipline of the machine”.  According to Veblen, those who worked with machines developed  reasoning and thinking habits and frameworks different from those who worked with money and the various ways it could be accumulated and strategically  used in a market based economic system.

Here is his description of this difference:

“Leaving aside the archaic vocations of war, politics, fashion and religion, the employments in which men are engaged may be distinguished as pecuniary or business employments on the one hand, and industrial or mechanical employments on the other hand.”

Veblen described the two separate “employments” as follows:

“. . . one class of men has taken over the work of purchase and sale and husbanding a store of accumulated values . . . [while another class of men has]  given their attention to the mechanical processes involved in this production for a market . . . .”

He contrasted the thought processes of the “pecuniary” class with the “production for market” class as follows:

“The end of . . . [the pecuniary class’s] reasoning is the interpretation of new facts in terms of accredited precedents, rather than a revision of the knowledge drawn from past experience in the matter-of-fact light of new phenomena.  The endeavor is to make facts conform to the law, not make the law or general rule conform to facts.  The bent so given favours the acceptance of the general, abstract, custom-made rule as something real with a reality superior to the reality of impersonal, non-conventional facts.”

I became aware of Veblen as a nineteen year old sophomore  at UT, under the tutelage of Clarence Ayres.  I never became a Veblen scholar but I was a dabbler in his writing.  I thought of this concept of his when I was examining the origin of my hostility toward Obama’s war powers and the AUMF.  I know Veblen was writing about economic functions, not legal arguments.  In fact, so far as my reading goes, Veblen never had anything complementary to say about lawyers.  He regarded them as no more than retainers in the service of the above mentioned “pecuniary class”, the object of much of his biting and occasionally hilarious critical commentary.

I know it may seem a stretch to drag Veblen into this essay but, to me, he adds a dimension, a new variable to Lakoff’s analysis.  Lakoff uses modern technology and the science of linguistics to demonstrate that our thinking is molded by what we hear and see.  Veblen adds that it is also affected by what we do.

All this personal information is not offered to bolster the value of what I have argued.  It is added to describe the prism through which I view the world.  Whether  you regard that prism as a disability or a benefit depends on whether your reaction to Obama’s speech about terrorism is like mine or like the entirely defensible one expressed by the dissent.

Bob

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

Damn Yankees, Inequality and Corporations

November 15, 2012 § Leave a comment

Executive Summary

I have just posted some ideas based on some parts of Walter P. Webb’s book, “Divided We Stand”.  In the following effort I will address other parts of his book.  He discusses the United States in terms of three sections:  The South, the West and The North.  He contends that the South (including Texas) suffers from an inequality of wealth and political power because that power is concentrated in the Northeast.  He identifies the Civil War and the Reconstruction that followed as the initial causes of this inequality.  He also identifies the advent of large and powerful business corporations,  contemporaneous with the closing of the frontier, as a mechanism that has consolidated that inequality.

This will be longer than most of my posts, partly because I will include some extensive quotations.  While I think those quotes are interesting and deserve to be included, they can be skipped over or skimmed if you disagree.

The Civil War andReconstruction

The Civil War left the Confederate states east of the Mississippi prostrate and devastated.  Sherman and Sheridan burned,  pillaged and otherwise destroyed most of the wealth and physical assets in those states.  Texas was spared most of the physical destruction, but shared fully in the financial wreckage.  This was followed by a relentless and ruthless series of federal civil and military policies and laws that were designed not only to destroy completely any vestiges of economic or political power in the “rebel states” as they were named in the legislation, but also to demean and dishonor all who participated or supported the rebellion.

Following the 1867 election, which empowered the followers of Thad Stephens and John Sumner in the House and Senate, the South was placed under military government.  Its laws and constitutions were re-written; its Congressmen were denied the right to claim their seats; all who had any leadership role in the rebellion were  disenfranchised; no state government authority was allowed to be exercised until the 13th, 14th and 15th Amendments to the U.S. Constitution were ratified; no former Confederate state was allowed to make any payment based on a bond purchased to finance the rebellion; the freed slaves were promoted and encouraged to claim positions in new state legislatures.  No one was allowed to vote without signing and swearing or affirming an oath that read:

“”I, _____, do solemnly swear (or affirm), in the presence of Almighty God, that I am a citizen of the State of _____; that I have resided in said State for _____ months next preceding this day, and now reside in the county of _____ or the parish of _____, in said State (as the case may be); that I am twenty-one years old; that I have not be disfranchised for participation in any rebellion or civil war against the United States, nor for felony committed against the laws of any State or of the United States; that I have never been a member of any State legislature, nor held any executive or judicial office in any State and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I have never taken an oath as a member of Congress of the United States, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I will faithfully support the Constitution and obey the laws of the United States, and will to the best of my ability, encourage others so to do, so help me God”‘

The statute that included this oath also provided for severe penalties for perjury.

My Reaction to This History

I have, and have had two inconsistent, illogical and conflicting reactions to this history.  In the 50’s and 60’s, when I was exposed, first hand, to a new generation of white southern bigots, their mouths dripping with racial hatred, I thought that Reconstruction had been an all-to-brief moment when black citizens in the South temporarily had access to political power to which they were entitled and which had been denied to them through long decades of horrific slavery.  I saw the 1876 compromise that elected Rutherford Hayes in exchange for marching the Union troops out of the South and leaving the black population at the mercy of the Klan as a disgraceful and immoral episode which postponed racial justice for almost a hundred years.

But, . . . . wait for it . . . On the other hand:  When I read Walter Webb’s book while I was in college and became aware of things like the above-quoted oath, realizing that these plainly unfair, unwise and hateful laws were imposed by one set of Americans on another set of Americans, I could easily imagine how enraged I would have been if I had lived in Alabama or Kentucky, where my parents were born about the time those laws were enacted.  [My dad was 54 when I was born.  He was born in 1877, in Kentucky.  His parents named him Robert E. Lee Hall.  My mother was 45 when I was born.  She was born in Alabama in 1886.]

Southerners were enraged and their rage was expressed with violence and smouldering hate that has required decades to dissipate.   I have read scholarly opinions speculating that the “war-guilt clause” in the Versailles Treaty furnished Hitler a basis for mobilizing German enthusiasm for WWII.  That it was a mistake.  It is hard to talk or write about these issues without appearing to excuse Hitler or the Klan, but there is no doubt in my mind that trying forcefully to cause a complete reversal of political, social and financial power in the South, based on military arms following a bitter war, was absolutely guaranteed to result in long term mindless violent hatred.

Concentration and Consolidation of Wealth in the North

The nature of Reconstruction,  however, is tangential to the matter of sectional inequality that Professor Webb addressed.  His book cites persuasive evidence that the post-Civil War devastation was only the beginning of a set of policies that concentrated wealth and economic power in Northeastern America and reduced the South to a status not unlike an ill-treated colony, exploited for its resources, but denied a fair share of the wealth generated by them.

Webb observes that the frontier essentially closed between 1890 and 1900, a decade when powerful financial  and industrial corporations rose to dominance.  As the factories were built in the North, they created an inspiration and a market for a myriad of machines, equipment and techniques, invented to enable and improve them.  That technology was locked into the North where patent laws insured that the wealth resulting  from it would remain there,  owned by the corporations that either employed the inventors or bought the rights to their creativity.

The post-war Congress appropriated generous pensions for the Union troops and their families, resident, of course, primarily in the North.  At the same time, to protect the products of the growing industrial complex, the Congress passed a series of tariffs that raised prices for Southern buyers, but enriched Northern corporations.  The revenue generated by these high tariffs and the large budget surpluses that resulted became an embarrassment to the Congress, a problem they solved by steadily increasing the pension benefits payable to Union military survivors.  Between 1862 and 1923, almost 8 billion dollars was distributed to veterans.  7 billion dollars of that went to veterans living in the North.  Webb speculates that this extra money enabled families of the veterans to start businesses, some of which grew into the corporate behemoths that toned the financial muscle of the North.

Professor Webb also wrote that eighty or ninety percent of the natural resources – gold, silver, oil, timber, and, to a lesser extent, coal – were located in the South and the West.  The ownership of those resources, however, was concentrated in corporations located and controlled by Northern residents.

The Rise of the Corporation

Webb’s book describes how these Northern businesses were initially characterized by personalities, the “Robber Barons” led by Carnegie, Rockefeller, Armour, Swift et al..  Then, as the size and power of the businesses grew, and the individuals who established them died, their direction passed to corporations who could raise the amounts of money necessary to finance them.   That development was empowered by a legal coup that Webb writes about with a combination of sarcasm and outrage:  In 1882, in Munn v. Illinois, the Supreme Court ruled that a state could fix rates for railroads, grain elevators and other business entities that affected the “public interest”.   That threat of a reasonable and just legal doctrine did not last long.

In 1886 and 1889, the Supreme Court accepted the argument of Roscoe Conkling,  the Southern Pacific’s lawyer, described by Webb as “former politician and Republican boss in the State of New York”, who had served as a member of the Committee of Fifteen that drafted the Fourteenth Amendment, who claimed that the Committee had intended that corporations would be legally deemed people and, hence, entitled to “due process” and all other constitutionally protected rights.

Webb’s treatment of this travesty is a pleasure to read.  He imagines the cross-examination of a corporation with questions like, “Are you interested in religious freedom?”; “Aren’t you afraid of going to hell”.  The corporation replies that it has no soul and thus has no fears about hell.

Relying on data in 1935, Webb wrote that of the 200 largest corporations in America, 180 were based in the North.  He perceived these developments as a return to feudalism, with Northern corporate power holding southerners in bondage.  He complained about gas station attendants wearing uniforms with corporate logos and shoemakers required to pay license fees to the Northern owners of patents on their equipment.

One can only imagine how he would react to the modern advent of franchised businesses and chain store empires that have destroyed the business model of small independent entrepreneurs.   He was saddened and enraged at his perceived tiny hint of what has become a wholesale capitulation to the power of corporate capitalism.

The Professor’s Dated Dream

In his last chapter, he offered what he called “A way out.”  He proposed an alliance between the South and the West; between labor unions and Southern agrarian activists.   He proposed a constitutional amendment to undo the grotesque legal fiction that vivifies corporations with the attributes of human beings.   He hoped that new political alliances could remedy economic inequality.   None of that has happened.   Corporations exercise more control over the lives of Americans than the combined authority of all our governments.   Even health care could not become available to all except by agreeing that it would continue to be administered through insurance companies – a result insisted on as a way of preserving “freedom”.  Even the language of liberty has become so corrupted that intelligent discourse is difficult achieve.

A Closing Note

Re-visiting the Civil War and Reconstruction prompted me to remember some of the things I talked about with  my daughters when they (and I) were young.   Here is a short sample of Stephen Vincent Benet’s “John Brown’s Body”.

“Bury the South together with this man,
Bury the bygone South.
Bury the minstrel with the honey-mouth,
Bury the broadsword virtues of the clan,
Bury the unmachined, the planters’ pride,
The courtesy and the bitter arrogance,
The pistol-hearted horsemen who could ride
Like jolly centaurs under the hot stars.
Bury the whip, bury the branding-bars,
Bury the unjust thing
That some tamed into mercy, being wise,
But could not starve the tiger from its eyes
Or make it feed where beasts of mercy feed.
Bury the fiddle-music and the dance,
The sick magnolias of the false romance
And all the chivalry that went to seed
Before its ripening.”

and

“And with these things, bury the purple dream
Of the America we have not been,
The tropic empire, seeking the warm sea,
The last foray of aristocracy
Based not on dollars or initiative
Or any blood for what that blood was worth
But on a certain code, a manner of birth,
A certain manner of knowing how to live,
The pastoral rebellion of the earth
Against machines, against the Age of Steam,
The Hamiltonian extremes against the Franklin mean,
The genius of the land
Against the metal hand,
The great, slave-driven bark,
Full-oared upon the dark,
With gilded figurehead,
With fetters for the crew
And spices for the few,
The passion that is dead,
The pomp we never knew,
Bury this, too.”

Bob

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