Technology, the Law and the Constitution

January 6, 2014 § Leave a comment


Two federal district judges, within the past two weeks, have rendered squarely opposing decisions concerning the constitutionality of  NSA’s collection of metadata.  That metadata,  accumulated continuously since 2006, consists of the daily acquisition of the following information from all major carriers of telephonic communication within the United States:  The time, date and duration of every telephone call made within, to or from any telephone in the U.S.; the length of the call; the telephone numbers of the source and destination of the call; and the transmission tower which transmitted the call (thus identifying the physical location near where the call was made).  This metadata is held in NSA databanks, where it is retained for five years.

In Klayman v. Obama, Judge Richard J. Leon, ruled that this violated the 4th Amendment to the Constitution. 

In American Civil Liberties v. Clapper, Judge William Paulley III decided this was legal.

In the following post I will write about these two decisions, my opinions of them and what I perceive as serious implications from their rulings for the future of our country.

The Lead

One reason lawyers’ writing fails to command the attention of ordinary readers is that they don’t think like ordinary people.  Lawyers, like me, try to reason toward a conclusion by first stating the bases that lead to it.  After setting out those bases, the lawyer triumphantly announces the conclusion.

Newspaper reporters and writers, who write for a living, call this “burying the lead”.  The idea is not to bore the reader with long descriptions of facts, events and opinions before disclosing the purpose of the piece.

This is an effort to avoid that pitfall.

The two court decisions discussed below involve some very important legal issues that significantly affect the relationship between all of us and government, both federal, state and local:

In this digital age,  our communication capability depends on use of third-party facilities that relay the expression of our thoughts about everything in our lives:  Satellites, telephone towers and switch complexes, coaxial cables, and an array of other “hubs” that pick up the signals we emit from our phones, Ipads and computers and send them on their way to specific or general destinations chosen by us.  When property law is applied to those processes, the result is that we transfer ownership of our thoughts to those “hubs” when we tap screens or buttons on our communication devices.  So, when government wants to know what we are up to, it doesn’t have to involve us or even make us aware of its curiosity.  It can go to the “hubs” and intercept all the information it wants.

An ancillary legal result of this the legal principle  declares that if we share information about ourselves with a third party, we can no longer claim that it is private, not available for the scrutiny of others.  This idea that allowing one peep from one person entitles the world to peep is, fortunately, subject to an important exception:  If society reasonably believes that, regardless of having involved a third party in the transmission of our information, it should nevertheless be private and unavailable to unauthorized disclosure, then the Fourth Amendment imposes restrictions of government’s right to access it.

The Supreme Court has grappled with these principles for decades.   One case involved a policeman, sans warrant,  sticking a tape recorder to the side of a telephone booth and recording Mr. Katz’s end of a telephone conversation.  The Court held this violated the Fourth Amendment.  In another case, again warrant-less, police went to the telephone company switch room and attached a pen register that recorded every telephone number dialed by Mr. Smith for a period of thirteen days.  The Court decided that this did not violate the Fourth Amendment because Mr. Smith was presumed to know that the numbers he dialed were recorded by the telephone company.  Why?  Because every month he received a bill that listed those numbers.  So, five members of the Court ruled that he should have known that the government might have access to that information.

We now know, thanks to Edward Snowden that,  since 2006,  NSA has obtained, from all domestic telephone carriers, copies of every telephone call made to or from every telephone in the United States and has retained a database consisting of that information for the past five years.  This has been done without any warrant claiming  any of the callers were guilty of any wrongdoing.  The accumulation of this information has been done pursuant to orders of the FISA court, but the only justification for securing those orders has been a showing that the information was relevant to the effort to thwart terrorism.

The two federal district court cases discussed in the following essay represent two opposing views of the above mentioned legal principles and their proper application to this metadata acquisition and accumulation.  If the Supreme Court ultimately decides that we are like Mr. Smith, then any government agency can track all of our communications, telephonic or otherwise, if they involve third party hubs.  They won’t be able to listen to our conversations but they will be able to know whom we communicated with and who communicated with us, when, for how long and where we were when the communication occurred.

If they decide, as Judge Leon did in the Klayman case, that we did not reasonable anticipate, when me engaged in digital communication for the past five years, that the government would be tracking each of those communications and maintaining a record of them available for future access, then the Fourth Amendment will protect us.  If they agree with Judge Paulley’s decision in the A.C.L.U. case, the Fourth Amendment will be inapplicable.

I believe this is a turning  point in this experiment of ours:  How to balance freedom and security in a democracy.  If the Fourth Amendment  allows the federal government to do what NSA has done, that same Fourth Amendment is the only barrier to the same kind of surveillance by state and local government agencies.  Everyone wants to be protected from a terrorist bomb.  I believe too little attention is being paid to the danger of NSA type surveillance by the Ted Cruz administration or by some rural county sheriff targeting political enemies or by the DEA waging the “war on drugs”.

So, here is my “lead”.  If you are interested in how two federal district judges have reacted to these issues, read on.

The Judges and the Parties

Judge Richard Leon was a classmate of later-to-be Supreme Court Justice Clarence Thomas.  He was appointed to  be a federal district judge in the D.C.  Circuit by President George Bush.

Judge William Pauley III was appointed to be a federal district judge in the Southern District of New York by President Bill Clinton.

Larry Klayman is counsel for the plaintiffs in the Klayman case.  Ignoring the time-honored maxim that a lawyer representing himself has a fool for a client, Klayman is both counsel and one of five plaintiffs in the case.  His career exemplifies the reason  lawyers have a bad reputation:  In 1988, he sued his mother for $50,000, seeking reimbursement for medical expenses incurred on behalf of his grandmother.  His brother reported this to Newsweek and, when it published the information, Larry Klayman blamed the Clinton White House, with which he had been feuding.  Two different federal judges, one in California and one in New York, banned him from appearing in their court because of his misbehavior.  The Florida Bar Association publicly reprimanded him for mishandling a suit for a client.  He has filed numerous suits against government agencies.  He sued Rachel Maddow for defamation.  The case was dismissed and he was ordered to pay several thousand dollars to reimburse her for defending the groundless suit.  This is only part of a Wikipedia description of this lawyer.  Unfortunately, he is in charge of an important lawsuit.

The other named plaintiff, Charles Strange, is the father of a former NSA employee who was killed in a Seal Team operation.   His apparent motivation for this litigation is based on his belief that NSA was responsible for his son’s death.  Judge Leon dismissed the claims made by the remaining three plaintiffs because they were not subscribers to any telephone carrier.  There is no apparent explanation for Klayman choosing himself, Mr. Strange and three others who did not subscribe to telephone service as plaintiffs seeking relief in federal court for the government’s misuse of telephone service.  Surely, of the more than 250 million telephone subscribers in America, there were other more appropriate plaintiffs.  But, who am I to argue with success?

Klayman intends to expand his suit as a class action.  Judge Leon has made no ruling on that application.  One issue will be whether Klayman and Strange are appropriate representatives of what will surely be a very large class or telephone users.  That may prove to be an interesting issue.

The Klayman Decision

Having expressed my  opinion, in several thousand words, of the NSA’s metadata accumulation, I assume it is obvious that I agree with Judge Leon and disagree with Judge Pauley.  So, I am certainly biased.  But, if you read even a part of Judge Leon’s opinion, I think you will see that he has crafted a creative opinion, dealing fully with the counter arguments he anticipates and carefully declining to rule on issues unnecessary to his conclusion.

     The Standing Issue

Federal courts have limited jurisdiction.  Before they can render a judgment, they must have before them a “case or controversy”.  This has been construed to mean that the party seeking relief must prove that he or she has sustained or will sustain a violation of some legal right if  relief is not granted.

Before the Snowden disclosures, this was a serious barrier to obtaining judicial review of  NSA’s surveillance practices.  Secrecy prevented people from knowing the government had acquired information about their telephone subscriptions.  So, they could not establish standing to challenge the activity.  When documents disclosed by Snowden revealed that NSA maintained metadata consisting of every telephone number of every telephone used in the U.S., any telephone subscriber acquired at least an arguably valid claim of standing to challenge that NSA practice.

Once that threshold was breached, the issue became:  Did the NSA’s acquisition of the information violate any right?

The ultimate outcome of the conflict between the Klayman case and the Clapper case depends on whether  NSA’s collection of data about a telephone number without any claim that the subscriber has violated any law or regulation violates the subscriber’s rights.

     Judge Leon’s Careful Limits on The Scope of His Decision

The judge wisely disclaims any opinion about the broad accumulation of internet, email and social media data in the program called “Prism”.    He agreed that plaintiffs’  claims of injury because of that program were too vague and speculative to qualify for standing.   Thus, he seeks to avoid conflict with the Supreme Court decision in Clapper v.Amnesty Int’l, wherein the Court held that Amnesty’s fears that their overseas telephone calls to clients and others would be intercepted by NSA were too speculative to qualify for standing to bring suit.

During oral argument Judge Leon asked Larry Klayman whether he had any evidence that the government had accessed any of his or Charles Strange’s online activity.  Klayman responded, “I think they are messing with me.”  Not surprisingly, the Judge decided this fell short of establishing standing to complain of government’s monitoring of internet traffic.  In addition, Judge Leon’s opinion cites two statements by NSA that the process of wholesale accumulation of email and internet metadata was discontinued in 2011. [Page 4, footnote 6]  Thus, the injunctive relief sought by the plaintiffs would be moot.

The Admiinistrative Procedure Act Claims

The plaintiffs alleged that NSA and the FISA court exceeded the authority granted by Congress when they ordered the acquisition of the telephonic metadata.  The APA contains a broad grant of jurisdiction to federal courts to hear such claims.

Judge Leon ruled against the plaintiffs and included a lengthy analysis of the issue in his opinion.  As construed by previous decisions, the general grant of jurisdiction in the APA is subject to an exception:   If Congress has declared, or at least plainly implied, by other legislation, that challenges to the authority of a particular federal agency must be made according to a procedure specifically designed for making such challenges, that procedure must be followed and the general sweep of the APA procedure is inapplicable.  Because the law creating the FISA court includes specific procedures for challenging its rulings, Judge Leon rules that the general grant of jurisdiction in the APA does not apply.  He therefore denies all claims made by the plaintiffs based on the APA.

      The Non-Subscriber Plaintiffs

As stated earlier, for reasons best known to him, Larry Klayman picked three of his plaintiffs from the relatively small number of Americans who have no telephone service.  So, Judge Leon dismissed their claims because they had no basis for complaining about the government’s acquisition of telephone information..

To summarize, he limits his ruling to the accumulation and analysis of telephonic metadata.  He bases his decision solely on the 4th Amendment, disclaiming any opinion about conflict with the 1st Amendment.

     The Fourth Amendment Claims

     The Statutory Basis For Government’s Acquisition and Use of Telephone Metadata

50 U.S.C. 1861, a part of the Patriot Act,  has been construed to authorize the FBI to file an ex parte application in the FISA court seeking the right to seize and copy “call detail records” of all telephone calls made to and from telephones located in the U.S..  The application must include a “statement of facts showing that there are reasonable ground to believe that the tangible  things sought are relevant to an authorized  investigation. . .to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” quoted at page 11 [emphasis added]

As a result of Snowden’s disclosures, made though The Guardian, we now know that these applications have been filed and granted for the past seven years.  Based on them, the NSA has required all domestic telephone carrier companies to forward to NSA each day, call detail records of every telephone call made within the U.S..

Here is a description of a “call detail record” taken from Judge Leon’s opinion, quoting from a FISA order disclosed by Snowden and acknowledged to be authentic by the government:  “For purposes of this Order ‘telephony metadata’ includes comprehensive communications routing information, including but not limited to session identifying information(e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, Internationsl Mobile Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.” [page 15, footnote 16]

Based on FISA orders like the one just quoted, NSA has a five-year database containing that information obtained from all carriers

     The Way NSA Accesses and Uses Its Five-Year Accumulation of Metadata

Judge Leon accepts the Government’s own description of its use of its metadata.  The process starts with a ‘seed”, described as a telephone number originating with a person of whom NSA has a “reasonable, articulable suspicion” (RAS) as being somehow connected with a foreign terrorist organization.  When the seed has been identified, the seed’s telephone number is used as a starting point for identifying others with whom the seed has been in contact.

Here is Judge Leon’s description of this process:

“In plain English,h this mean that if a search starts with a telephone number (123)456-7890 the first “hop” will include all the telephone numbers the “seed” has called or received calls from in the last five years (say, 100 numbers),the second hop will include all the telephone numbers that each of those 100 numbers has called or received calls from in the last five years (say 100 numbers for each of the “first hop” numbers” or 10,000 total), and the third hop will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the past five years (say,100 calls for each of the “second hop” numbers or 1,000,000 total).”  He concludes “. . . it is likely that the quantity  of phone numbers captured in any given query would be  very large.”. [Opinion page 18]

For more of the Judge’s analysis see footnote 21 at page 19 of the decision.  The Judge remarks that the NSA spokeswoman who sought to trivialize the number of telephone numbers typically accessed in response to a RAS was guilty of  a “glaring understatement” and that her assurance that the total number of telephone numbers analyzed based on a “seed” was a “small percentage” was “virtually meaningless when placed in context.”  Judge Leon observed that, if one of the telephone numbers used to identify the “seed”‘s contact happened to be a Domino’s Pizza, the result would be expanded dramatically.

Here is Judge Leon’s description of NSA’s analysis process after the “three hop” search has created a new sub-group of telephone numbers:

““Once a query is conducted and it returns a universe of responsive records (i.e., a universe limited to records of communications within three hops from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms. [citation omitted]  According to the Government, following the ‘chains of communication’ – which, for chains that cross different communications networks, is only possible if the metadata is aggregated – allows the analyst to discover information that may not be readily ascertainable through other, targeted intelligence-gathering techniques. [citation omitted]  For example, the query might reveal that a seed telephone number has been in contact with a previously unknown U.S. telephone number – i.e., on the first hop.  [citation omitted]  And from there, ‘contact-chaining’ out to the second and third hops to examine the contacts made by that telephone number may reveal a contact with other telephone numbers already known to the Government to be associate with a foreign terrorist organization.” [Opinion, page 20]

     Fourth Amendment Claims Not Precluded

As discussed earlier, Judge Leon ruled that Plaintiffs’ claims based on the APA were precluded by the Congress’s appeal procedure from actions by the FISA court.  He distinguished that from preclusion of constitutional claims based on the Fourth Amendment.  Citing Supreme Court precedent, he wrote that denying the right to bring a constitutional claim in federal court required a significantly more explicit expression of intent by Congress than required for precluding statutory claims.  Here is his analysis:

““The presumption that judicial review of constitutional claims is available in federal district courts is a strong one [citation omitted] and if the . . . heightened standard is to mean anything, it is that Congress’s intent to preclude review of constitutional claims must be much clearer than that sufficient to who implied preclusion of statutory claims.  Where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen’s right to judicial review of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme.  While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution.” [Opinion, page 35][emphasis added]

      The Plaintiff’s Claims That Their Telephone Numbers Were Accessed and Analyzed Are Not Speculative

Judge Leon rejected NSA’s contention that the Plaintiffs’ claims were speculative because they could not prove their particular telephone numbers had been accessed and analyzed.  He caught the government simultaneously arguing that, to be effective in combating terrorism, it had to have access to all telephone numbers; then contending that the Plaintiff’s telephone numbers may not have been accessed or analyzed.  His demolition of this twisted logic is a pleasure to read.  Here is a footnote that is a classic piece of lawyering:  Cutting through complexity with easily understood analogy.

““The difference between querying a phone number belonging to a domestic Verizon subscriber (for which metadata has been collected) and querying a foreign number (for which metadata has not been collected) might be analogized as follows:  A query that begins with a domestic U.S. phone number is like entering a library and looking to find all of the sources that are cited in Battle Cry of Freedom by James M. McPherson (Oxford University Press 1988).  You find that specific book, open it, and there they are.  ‘Hop one’ is complete.  Then, you want to find all the sources cited within each of those sources (‘hop two’), and so on.  At the end of a very long day, you have looked only at books, articles, etc. that were linked to Battle Cry of Freedom.

“Querying a foreign phone number is like entering a library and trying to find every book that cites Battle Cry of Freedom as a source.  It might be referenced in a thousand books.  It might be in just ten.  It could be zero.  The only way to know is to check every book.  At the end of a very long month, you are left with ‘hop one’ results (those books that cite Battle Cry of Freedom), but to get there, you had to open every book in the library.” [Opinion, page 40, footnote 18]”

It seems to me that Judge Leon has effectively ended any argument about whether  any U.S.  telephone subscriber’s telephone number, including information  related to that telephone number, has been acquired, accessed and analyzed by the Government.  The “speculative” defense has, I think, been destroyed.

     The Right of Privacy, the Fourth Amendment and Smith v. Maryland

The last twenty-five pages of Judge Leon’s opinion, (pages 43-68), are an essay on the impact of modern technology on the appropriate legal analysis of Fourth Amendment rights.  He begins with a discussion of Smith v. Maryland, the Supreme Court case that is relied upon by all defenders of NSA’s metadata program.  That case, decided in 1979, involved a robbery victim who, after the robbery, received threatening phone calls she associated with the robbery.  When she complained to the police, they arranged with the telephone company to attach a pen register to the telephone line belonging to Smith, a suspect in the robbery.  They did so without a warrant or a court order.  The pen register disclosed that, during the thirteen days it was attached to Smith’s phone line, a call was made to the victim’s home.  That became a key piece of evidence leading to Smith’s conviction.

Judge Leon cites abundant evidence that the technology at issue here is dramatically different from the brief pen register attachment in Smith.  Without attempting to summarize all of his reasoning, suffice to say that he argues that applying the Court’s reasoning in Smith to the NSA’s surveillance program is like comparing traffic safety regulations designed for horse and buggy traffic to those appropriate for modern freeway driving.

The standard applied by the five Justices who wrote the opinion in Smith was the one announced in an earlier case, Katz v. U.S., which held that attaching a listening device to a phone booth and recording a conversation by  a caller violated the Fourth Amendment.  There the Court, following earlier precedent, ruled  that the Fourth Amendment protected a right of privacy reasonably assumed to exist by society.  The Court ruled that, because Smith, as a telephone subscriber, knew  his telephone calls were recorded by the telephone company in order to prepare his bill, he had no reasonable expectation that the telephone numbers he called were kept private.

Judge Leon contends that these decisions are wildly in-apposite to a belief that the average American telephone user assumes that the government is maintaining and has maintained a giant database consisting of every telephone  number of every call they make and of every call made to them; that this data is retained, accessed and analyzed by the government for five years .

The Judge cites other Supreme  Court decisions which, to me, are more pertinent to the issue.  For example, in one decision, the Supreme Court held that the Fourth Amendment was not violated when the police attached a short range tracking device to a suspect’s car and used it to track him on one occasion.  The Court held that, when we drive about, we have no expectation that our movements may not be observed by others.  In another case, however, the Court held that the Fourth Amendment was violated when the police attached a long range beeper to a suspect’s car and used it to track his movements for a month.

     The NSA’s Collection of Metadata is Unreasonable

In the concluding part of his opinion, Judge Leon responds to the Government’s claim that the acquisition and retention of its metadata was and is necessary because seeking judicial approval would take too long.  He wrote that NSA cited three instances where they used the metadata in apprehending an alleged terrorist.  In all three, the metadata was accessed after  the suspected terrorist had been identified using other conventional means.  The metadata was used either to find another participant in a plot or to confirm information already known.  In none of the examples cited by NSA was speed a factor.

American Civil Liberties Union v.  Clapper

In this case Judge Paulley discusses and considers each issue ruled upon by Judge Leon.  He agrees that A.C.L.U has standing because of the disclosures made by Snowden.  He agrees with Judge Leon that A.C.L.U.’s claims based on the Admiinistrative Procedure Act fail for the same reasons cited by Judge Leon.

He disagrees with Judge Leon’s bases for distinguishing Smith v. Maryland.  He contends that, while telephonic usage and technology have dramatically changed, a telephone is still a telephone.  For Judge Pauley, when the Supreme Court decided that a pen register could be attached to Mr. Smith’s telephone without a warrant, that settled the issue:  One telephone or 300 million telephones, thirteen days or five years, Judge Pauley can’t see any difference.

He discusses the possibility that NSA might utilize a database of 300 million telephone calls over a five-year period to look for some patterns of behavior that might involve more prying into the lives of innocent citizens than was possible when the government attached a pen register to a single telephone line.   Here is how he dismisses such fears:

““. . . , without resort to additional techniques, the Government does not know who any of the telephone numbers belong to.  In other words, all the Government sees is that telephone number A called telephone number B.  It does not know who subscribes to telephone numbers A or B.  Further, the Government repudiates any notion that it conducts the type of data mining the ACLU warns about its parade of horribles.”  [Opinion, page 41]  He buttresses his confidence on this point by citing this reassurance from General Alexander:

“General  Alexander’s testimony on this point is crystal clear: ‘]I]n the open press there’s this discussion about pattern analysis on this.  That is absolutely incorrect.  We are not authorized to go into the data, nor are we data mining, or doing anything with the data other than those queries that we discuss, period.  We’re not authorized to do it.  We aren’t doing it.  There are no automated processes running in the background pulling together data trying to figure our networks. . . . The only time you can do pattern analysis is, once you start the query on that query and where you go forward.’  Alexander Testimony at 66”

This exemplifies Judge Paulley’s entire approach to the case:  He accepts without any hint of skepticism every reassuring statement from NSA witnesses.  Here is an example that he includes in his opinion.  I think this is dishonest because he cites and discuses Judge Leon’s opinion and therefore is bound to know how misleading these numbers are.

“Because each query obtains information for contact numbers up to three hops out from the seed, the total number of responsive  records was ‘substantially larger than 300, but. . ..still a very small percentage of the total volume of metadata records.’ [quoting an NSA declaration ]  Between May 2006 and May 2009,the NSA provided the FBI and other agencies with 277 reports containing approximately 2,900 telephone numbers. [citation of NSA declaration omitted]”  [Opinion, page 12]”

Without the information in Judge Leon’s opinion, we might conclude that we are all exaggerating the importance of this argument.  2,900 telephone numbers doesn’t look like much of a trove of data.  It also conceals what NSA actually does.

Judge Paulley discusses the automobile tracker cases cited by Judge Leon.  He argues, however, that the decision finding that a Fourth Amendment violation had occurred was based on the fact that the device left on the suspect’s car for a month was placed there in a way that caused the Court to equate it with an actual intrusion into the car.  That does not comport with the quotation from the second decision quoted in Judge Leon’s opinion.  See Judge Leon’s opinion, pages 46-47.


These two federal district court decisions neatly contrast the nature of the debate in progress in our nation.  Like any debate, the statement of the issue is important.  I believe a fair version of the issue is:

What is the most serious and fundamental threat we face:  Bombs from a foreign terrorist or our government’s effort to protect us?

I contend the answer is “our government’s effort to protect us”.    My contention is based on my understanding of history.  It seems to me that ceding power to government is always an irreversible transaction.  Once acquired, power is never relinquished.  I fear this NSA surveillance because it is power given to an agency that operates in secrecy; whose operational purpose, spying, is one that succeeds by lying and deception.  Everything about it is anathema to the safeguards of a legal system and a Constitution that has force only if enforceable in court.

Even if we  trust the present managers of these powers, allowing the creation of such potentially damaging weapons will serve as a temptation for abuse for countless generations.  Already, local police chiefs and county sheriffs are clamoring for access to this gigantic mass of information about every person in this country.  Are we so naive as to think that information will not sooner or later be used to punish political enemies or to crush unpopular dissent?

LIke all my fellow Americans, I am waiting with a mixture of hope and apprehension for the decision of President Obama concerning the proper limits of these surveillance programs.  I hope his background as a constitutional law professor will give him courage  to accept the risk that ,if he reins in  NSA and a terrorist bomb explodes during his presidency, he will be blamed.

I will be watching and hoping.


A Mind Meld, A Grok and a Couple of Reactions

September 27, 2013 § Leave a comment

My Lucy’s Football Complaint

In July and August I spent too much time reading, thinking and writing about my country’s policies and activities that were, to me, depressing and shameful.  During the Bush-Chaney-Rumsfeld-Yoo years I was angry but not depressed.  I was comforted by the hope that  their excessively wanton brutality would produce a commensurate degree of righteous reaction that would propel forward the forces of justice and decency.

When Barack Obama was elected I was thrilled.  I thought a man of conscience and intelligence would use the ingenious organizing ability that produced his victory to transform the Democratic Party into a political coalition that could dominate American politics for a generation.  He took office when the financial power brokers had been brought down by his predecessor.  They were coming to Washington, hat in hand, desperate to avoid an implosion.

I assumed , as  a student of history, he would recognize that he was in a position similar to Franklin D. Roosevelt, who became President when the policies of Herbert Hoover and the Republicans had capsized the American economy.  FDR used that crisis to change the relationship between capitalism and government and to brand Hoover and the Republicans for decades as the enemies of working class Americans.

Instead, Obama used the power of government to pay off the debts that profligate Wall Street bankers had incurred, restore the auto industry, and leave working class Americans without jobs or forced to accept deep pay cuts and menial work to avoid starvation.   Far from identifying and branding those responsible for the economic debacle, he made speeches and spoke at press conferences about “looking forward, not dwelling on the past.”

Obama and his team used government generosity to enable Wall Street bankers to recover quickly from the near bankruptcy of their casino.  The bonuses and multimillion dollar salaries have climbed to galactic heights.  This was done regardless of how politically unpopular it was.  No political price was regarded as too high to accomplish this feat.

That attitude was in sharp contrast to the cautious and timid attitude toward other politically difficult projects:  Changing labor laws to enable and encourage the resurrection of the labor movement was not even considered – much too difficult- now is not a good time-etc. etc. etc. .   Insisting on solving our health care problem by extending Medicare, one of the most popular government programs in the history of the United States, to all.  No, that might be branded as socialism –  not practical – would never pass in Congress.   Well then, if the insurance industry must be left to make useless profits from providing health care, how about a “public option” to place limits on how egregiously they can sabotage the distribution of health care?  “Well, we tried that, but couldn’t get enough votes.”

The one political strategy that was never considered:  Propose fair and just policies.  If they are not adopted, continue to insist on them.   Attack those who oppose them.  Praise and reward those who support them.   Never stop organizing and attacking.  Relentlessly target the leaders of the opposition.  Name them.  Take pains to distinguish them from those who are merely stupid, ambitious or both;  they may choose to abandon their opposition, especially if it appears likely to lose.

President Obama is a reasonable person.  I think his fatal flaw is his belief that proposing reasonable solutions to problems will win arguments.  As a trial lawyer, I shared that belief and, more often than not, I  found that juries were more likely to favor the litigant who presented a reasonable argument rather than one who relied on bombast and assaults on  the credibility and good faith of the opponent.  It didn’t always work, but my average was respectable.  I really had no choice.  Like Obama, I was never able to sell myself as a shouter, a bully or a fist-shaker.

Political contests, at least those in which I have been actively involved and the ones that have been waged in Washington for the past five years, are wars, not trials.  There are few rules and the rules that apply are routinely ignored. The folk description of them is that they are fought by people “down for money, marbles and chalk.”   Obama’s obsession about avoiding the stereotype of the “angry black man”, I think, led him to begin negotiations with ruthless and unprincipled demagogues with compromises that, if they were ever appropriate, should have followed, not preceded, a hard fight.  I think he brought a knife to a gun fight.

His soaring rhetorical claim that we live, not in blue states and red states, but in the UNITED STATES,  was a noble effort to moderate political conflicts.  He should have recognized, however, that it did not describe the kind of political viciousness that characterized the political arena of Washington D.C. in 2008 – 2013,

At my age, I am not naive about politicians.   No elected official has proved satisfactory to me.  Ralph Yarborough came close and my admiration for him more than compensated for every instance when he did such things as sponsoring James Latane “Soapy” Noel, his college room mate,  for appointment to a federal judgeship in Houston, who turned out to be an abysmal failure when Houston’s public school integration depended on his judgment.  Lyndon Johnson fought every effort to create a viable and dominant liberal Democratic Party in Texas.  Bill  Clinton’s “triangulation” cleverness spawned the Democratic leadership Council and NAFTA without any protection for the rights of workers, not to mention his enthusiastic embrace of of Wall Street deregulation. My experience with these men taught me, once again, that Democratic Party politicians can do just as much damage as Republican politicians.  Even Hubert Humphrey, after a lifetime of dedication to liberal ideals, ran for president wearing LBJ’s Vietnam warbonnet after claiming the nomination in Chicago during a police riot.

So, I have callouses on my backside from running full-tilt toward Lucy’s football during political football games.  That’s why Obama was so depressing.  I thought we had, at last, elected a steadfast Lucy.  Like they say, “There’s no fool like an old fool” Or, as I’ve often said, “like an Old Fart Lawyer.”

The Affordable Care Act

I am hopeful that the ACA will not be a “train wreck”, as predicted by its critics.  I am sure the GOP will do everything it can to sabotage it and call attention to every negative aspect of its implementation.  The fact that thousands of Americans die each year due to lack of health care makes the stakes too high for betting against it, a mere detail that will have no influence on those who want it to fail.  The only human life that concerns them is life in the womb.

Having said that, I believe the ACA is a solution that would have made sense in 1942, but is inappropriate in 2013.  When millions of men were withdrawn from the workforce to fight WWII, America was  in desperate need of manpower to produce the goods and services vital to the war effort as well as the sustenance of the civilian population.  Competition for workers was fierce.  Wage levels were frozen.  So, employers, primarily industrial employers, began offering health insurance as an inducement to attract and retain workers.

During the New Deal years, as a result of the Wagner Act,  many industrial workers were represented by unions.  So, a pattern of negotiated arrangements for job benefits was developed.  Neither employers nor unions wanted to create machinery for handling and adjusting claims, so a large health insurance industry was created to handle this new demand for health insurance.

If the ACA had been adopted then, it would have been a sensible legislative regulation of these new arrangements.  Dramatic changes have occurred since then.   Many of those industrial giants no longer exist.  The vitality of unions has disappeared in the face of changes in federal law and a failure of the Democratic Party to insist on protection of the rights of workers to organize for collective bargaining.  What we now have is a giant insurance industry, regulated lightly by state governments, and employers free to make choices regrading health insurance for their employees, usually free from any significant bargaining through unions.  The Employment Retirement Income Security Act, usually designated ERISA, does not require employers to make health insurance available to its employees,  It does include some requirements if the employer chooses to do so.  It does not, however, prescribe minimum levels of benefits which must be offered.

Another dramatic change occurred when Medicare was created to guarantee health care for those over the age of 65.  That law has become a model of government service and is wildly popular.  It proved that government can establish and implement a successful program providing health care to a large population, even a population of elderly people whose health care needs are well above those of the general population.  Choosing to leave health care in the hands of insurance companies instead of extending an already established model government program was dumb.

Having stated my now-irrelevant bitch, I acknowledge at least two positive developments resulting from the flawed process that produced the ACA.  First, the Republican Party has obsessively  and enthusiastically branded itself as opposed to the law.  That means that, when the law becomes effective, and millions of Americans discover that they have access to health insurance at prices they can afford, they will, perhaps, begin to question their loyalty to Republican politicians who tried to prevent it.  I am not sure about this.  American voters are notoriously willing to vote for politicians whose policies are harmful to them.  This masochistic stupidity is an endemic mental disability linked to American politics.

The second positive result is that Barack Obama has, finally, responded with some degree of anger and moral outrage to  the attacks on the ACA .  This morning, September 26, 2013, less than a week before the ACA becomes an active program affecting every American, after years of hysterical assaults by the GOP, thousands of hours of lies about the law, and a twenty-hour harangue by a Jackass Senator from (of course) Texas, our President, in a speech to a community college crowd in Maryland, displayed a little bit of outrage and struck back.  He didn’t name anybody.  He wouldn’t want to spoil the collegiality he enjoys as he works with his “friends across the aisle”.  But he did mention that the Republicans have been lying about the ACA.  That is a step forward.

Here is my hope:  Americans have now been promised health care.  The promise has been made by their government.  When the insurance industry allows its greed to interfere with providing that health care, the people will demand action from the government.  At some point it will become so obvious that even American voters will realize that health care for which government is responsible should be managed and administered by government.  The ACA will transition to Medicare.  As usual the question is:  How much pain will be necessary to energize the electorate to demand it?

A Mind Meld and a Grok

As stated, after reading about the NSA trashing of the 4th Amendment; the secret FISA court and its secret jurisprudence, I was angry and depressed.  The consensus seems to have been accepted that, given our modern technology, we are doomed to submit to government’s limitless access to our private lives, all in the name of protecting us from a constantly expanding array of terrorists in a state of boundless and endless martial law.

I followed that investigation by reading Jeremy Scahill’s book describing the government’s “global war on terror” in which the bombing of innocent civilians is accepted as collateral damage.  Bypassing the Bill of Rights and assassinating American citizens without warrant, indictment or trial is explained as an acceptable tactic in the  GWOT.  “Signature strikes”, firing missiles and dropping bombs on people based on the “life pattern” of some in their midst is said to be justified on the basis of the probability that terrorists will be killed.

These revelations about the policies of my President and my country depressed me.   After a few days, I tired of thinking about them.  One of my favorite bumper stickers states, “Reality is for People Who Can’t Handle Drugs and Alcohol”.  I am one of those people, so a bottle of Jack Daniels was not an option.

I remembered that, for most of my life, beginning in Elementary School, I was almost always in the middle of reading a novel.   That changed a few years ago and I began reading non-fiction.  I decided I needed a break from all this serious stuff.  I needed to escape.

Crime and Punishment

In 1997, my mother-in-law, whom I loved and admired, gave me a handsomely bound copy of “Crime and Punishment”, Fyodor Dostoevsky”s psychological novel.  It had lain unread on a bookshelf for sixteen years.  I chose it to begin my recovery.  Dostoevsky was a remarkable person.  He was a dissident in the 1850’s.  He was imprisoned and sentenced to death.  He and two other prisoners were taken to the prison yard, tied to stakes, a firing squad was assembled and the first two of three orders were given to carry out the sentence, when a messenger from the Tsar arrived breathlessly to announce that their death sentences had been commuted to terms of imprisonment in Siberia.

[Spoiler Alert.  I assume that most of you have read this classic, so this is probably unnecessary.  But, the following paragraphs will disclose the ending of the novel.]

Dostoevsky became a popular writer after surviving that term of imprisonment.  “Crime and Punishment” was published in 1861, when our civil war was beginning.  The main character, Rodion Roskolnikov, a young penniless lapsed student, uses an axe to kill an old lady who operates an amateur pawn business, as well as her mentally disabled sister who unexpectedly witnesses the murder.  The novel describes Roskolnikov’s struggle with his conscience and the fear that ultimately drives him to confess to his crime and accept imprisonment in Siberia.  The novel is actually two narratives.  One is in Roskolnikov’s head and the other one involves his family, his friends and a number of protagonists in the government’s criminal justice establishment.

The psychology is presented in terms of a philosophical conflict.   Roskolnikov initially tries to convince himself that he is a member of an intellectually superior group of people, whose talents entitle them to ignore  ordinary rules of conduct applicable to their inferiors.  He tries to analyze his crime as the just sacrifice of a couple of worthless women in order to enable him, a person of significant potential, to survive.  This hubris is a barrier that prevents him from having an intimate relationship with either his male friends or a young woman, Sonya, who falls in love with him.

The novel, set in St. Petersburg,  is an engaging description of a part of Russian society.  There are lengthy passages describing Roskolnikov’s thinking, similar to “stream of consciousness” narration, except that it is written in the third person rather than as a transcript of the thoughts going on in Roskolnikov’s head.

Reading the book had its desired effect.  For several hours I was in Russia, feeling the cold, tense as the main character edged closer and closer to a resolution of his inner conflict, while a parallel effort was going on as a smart law enforcement official came closer and closer to trapping him.

After his confession and banishment to Siberia, Sonya moves there to be with Roskolnikov.  Finally, after several years, he accepts her love, casts aside the  heartless intellectualism that kept him aloof and alone, accepts responsibility for the crime he committed and becomes an adult human being.

Lie Down in Darkness

Over fifty years ago, Larry Goodwyn gave me a priceless gift.  He told me about William Styron.  I read his first novel, Lie Down in Darkness when I was thirty-one or two.  As part of my recovery from too much reality, I re-read it.  It still blew me away.  The astonishing thing about it is that Styron wrote the book in two years at age twenty-two to twenty-three.  How he managed to acquire, at that young age,  the knowledge and insight to describe, in words  carefully crafted and filled with imagery, the musings, dreams and fears of a fifty-year-old woman and her twenty-year-old daughter, is beyond my understanding.  I don’t pretend to have that ability, but Styron’s descriptions have the feel of absolute authenticity.  As I re-read them, at age 82, having had lots more experience with lots more people of different ages, than Styron had time to have had when he wrote this novel, his descriptions were believable to me.

His writing was compared to Faulkner’s.  I don’t know about that.  To me, the tenderness and understanding of human fears and weaknesses he describes made me think of Scott Fitzgerald’s Tender is the Night .  After grabbing me and telling me a long story about death and loss and love and betrayal, Styron ends his novel with a penultimate section, forty-nine pages without a paragraph break, in which he transcribes the thoughts in young Peyton’s head.  Unlike Dostoevsky, Styron does not stand aside and write about what Peyton is thinking.   Peyton herself lets you into her head and allows you to think with her, feel with her, remember with her.

Grok and Mind Meld

A.E. Heinlen invented the term grok in his novel, Stranger in a Strange Land, a science fiction fantasy based on a Martian who visits Earth.  The visitor has the ability to relate to another person by communicating between his own and his or her minds.  The process is called groking.  It obviously enables a degree of intimacy otherwise impossible to achieve.  As I read Crime and Punishment, I realized that Dostoevsky was enabling me to relate to Roskolnikov’s mind,, rather than merely with his actions and statements.  It reminded me of Heinlen’s groking.

Styron, on the other hand, took me a step closer than Heinlen.  Throughout his novel, and especially in the 49-page internal monologue, he enabled Peyton and I to communicate through a mind meld, a Vulcan ability introduced to Earthlings by Spock, an officer in the Starship Enterprise, commanded by Captain Kirk.

I don’t intend to escape from reality permanently but I have decided to temper my dabbling in reality by vicariously experiencing  other people’s lives through the pages of well-written, or just moderately well-written (I’m not very discriminating when it comes to fiction) novels.


Obama’s Track and Whack War: An Afterthought

August 27, 2013 § Leave a comment

Before I read Jeremy Scahill’s book I stated my objections to President Obama’s Globle War on Terror.  See “Lynch Law” and “Lynch Law Two”.  Now, having read the book and written some of my reaction to it [see “Bush’s Dumb War and Obama’s Track and Whack War”], last night I re-read the President’s speech on terror, delivered May 27, 2013, at the National Defense University in Wahington D.C. .  Here is link to it, as delivered, not the official transcript distributed in advance.

Near the end of the  speech, a member of the audience challenged the President on some of the issues that trouble me.  The President acknowledged that the issues she raised were important and stated that he would try to deal with at least one of them:  The prisoners held at Guantanamo without charges or trial.

As I have reconsidered the President’s speech in light of the reality of his global war, I have another question I believe is more serious than those I have appreciated before:  The President’s speech recognized that a perpetual war is unacceptable and promised that he would seek an end to it.  My question is, “How do you end a war on terror?  What if we are ready to end it, but those who have endured years of bombings, raids  and missile attacks without any way either to defend themselves or effectively fight back are not ready?  What then?

The President’s speech seemed to assume that when we had administered a sufficient thrashing and thoroughly established that we are capable of inflicting unlimited death and destruction on any who oppose us or challenge us, the objects of that lesson in real politic will be eager to stop the carnage and grateful for our agreement to stand down and withdraw.

I find that doubtful.  I think of the experience of Israel.   After more than 50 years of defending themselves in wars and against endless terrorist bombing, I assume the Israelis would be delighted if the bombers would declare they had inflicted enough damage, killed enough innocent people and were ready to end their effort to harm Israel.

Despite many determined efforts to effect that result, none have succeeded.  Why?  Because the Israelis, based on their bitter history with their tormenters, have little reason to agree to any peace that does not guarantee the violence will stop.  And the Arabs, having sustained a long series of defeats at the hands of the Israelis, nursing centuries of grievances, convinced they have a right to reclaim the land formerly occupied by them and now the nation of Israel, have no interest in ending the only form of war of which they are capable, terrorism.  All of these issues are embedded in the context of opposing religious doctrines, thus branding compromise as apostasy.

I think ending the present war on terror will have similar, but not identical problems.   We have one advantage:  We have not been foolish enough to present our war effort as one based on religious obligation.  We have left ourselves an honorable way to simply stop the war.

Those who have suffered injury from our efforts, however, do perceive the conflict as a religious one.   When our side sustains a lost life, we grieve and feel anger at the senselessness.   Those whom we kill, however, are perceived by our enemies as martyrs.  Those who choose to sacrifice themselves with lethal vests of explosives are perceived as heroes.  Every time we destroy a village or immolate innocent bystanders, we create new enemies in their tribe and their surviving family.   It seems logical to me that the number of people who hate us, who will be willing to harm us, will grow with every drone attack, every JSOC raid and every Hellfire missile launch.  If I am right, then  our ability to end the Global War on Terror becomes less likely with every victory we achieve on the global battlefield where we wage this war.

When I re-read the President’s speech, I felt he omitted something important:  How is our global war on terror being perceived by the 1.6 billion Muslims in the world?  Are our methods and strategies increasing or decreasing the percentage of that number who regard us as an enemy?   How likely is it that those who hate us will be willing to make peace with us without avenging the deaths and wounds we have caused?  President Obama’s speech was apparently designed to convince us that the war is just and that it is succeeding.  I think the question I just posed deserves more attention.

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

August 25, 2013 § Leave a comment


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.


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.


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.

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