Which Side Are You On?

December 13, 2014 § Leave a comment

The Scandal

As I write this, the United States Senate is debating a measure that would weaken Dodd-Frank’s regulation of  Wall Street banks, increase the amount of money a single donor can contribute to political parties and enable employers to reduce pension payments of retirees after they retire and have earned their pensions.

These outrages are attached to a budget bill whose passage is required to keep the government operating.  None of these dishonest and unwise amendments have anything to do with the budget.  They were attached to the budget bill by anonymous members of the House of Representatives at the behest of Citigroup.  There was no committee hearing.  There was no opportunity to vote on them separately.

In other words, they were so obviously the result of corruption that their sponsors would not own them.  They could only be adopted as part of a legislative blackmail scheme.

This is not, however, the real scandal.  The real scandal is that this dishonest scheme could only proceed with votes by Democratic Party members.  The bill passed the House by a narrow margin, including aye votes by 57 Democrats.
[I note with some satisfaction that no Texas Democrat voted “aye”.]

No, that is really not the real scandal.  The real scandal is that the only two elected officials who are personally identified with pressuring members of Congress to agree to these outrages are named Barack Obama and Joe Biden .  Yep.  Some things are too dishonest to make it, even given the present sorry state of our politics.  So you have to bring out the Big Guns, the Prez and Vice (pun intended).

How did this happen?  Well, we get the usual explanation.  It was a compromise; the best deal we could get.  If we don’t go along, the President won’t be able to work with Republicans on other matters.

Whoa!  Say what?  When has the President been able to work with Republicans on anything significant?  What makes anyone think this will improve in a few weeks when the GOP majority will become filibuster proof?  Just how stupid and naive are we suppose to be?  Will this be an adequate explanation for the retirees whose pensions will be decimated?   When the power of the Koch Brothers and others like them is used to gain even more control of our political parties, will we view the results and say, “Well, it’s bad, but it was worth it to avoid an ugly argument about the 2014 Budget Bill.”

The Perpetuation of “Too Big To Fail/Jail”

Dodd Frank addressed a problem that confronted us when the Wall Street Banks faced insolvency because of their fraudulent marketing of mortgage based derivatives.  They used depositor money to finance those derivatives.  If they became insolvent, the taxpayers would have to make the depositors whole because of the FDIC insurance program.  That is, the taxpayers would belatedly finance the reckless greed of the Wall Street pirates.

Dodd Frank cured this by requiring that future trading strategies that depend on derivatives and Byzantine schemes involving  sketchy tools like credit-default-swaps, that look like insurance but have no reserves, would have to be conducted by entities separate from FDIC insured deposits, with money other than depositor money.

In other words, the ones who profit from high-risk gambles would have to risk their own money, not FDIC-insured depositor money.

Predictably, this was regarded as a terrible idea by the high-risk gamblers.  They have become addicted to the system of “If I win, I pocket the money.  If I lose, you pay for the loss.”  So, Citigroup, acting for the other pirates,  just wrote a solution to their problem, forwarded it to some elected officials  they owned, who transcribed it into an amendment to the budget bill.  Their solution is part of the bill Obama and Biden have been frantically calling House and Senate members about, begging them to vote “aye”.

Thank God For the Women

Nancy Pelosi was left out of the negotiations that led to this piece of garbage.  She did not join the cheer leaders who whooped it through the House.  But the one who has filled a gaping chasm where the political soul and conscience of the Democratic Party once rested, is Elizabeth Warren.  What a thrill to see a Senator who has not forgotten how to express moral outrage.  And knows how to do it while exhibiting a razor sharp wit and a mind to match.

When she spoke on the floor of the Senate, looked squarely into the camera and addressed Citigroup, the sponsor and author of the Dodd-Frank gut job, and said, “I agree with you.  Dodd-Frank is not perfect.  It failed to break you up into small pieces.”, I just about fell in love again, despite 65 years of marriage.  She is a wonder!

Which Side Are You On?

This episode reminded me of an old union song I taught my daughters to sing when they, and I, were young.  It was written in 1931 by Florence Reese, the wife of a coal miner in Harlan County, Kentucky, during a bitter strike.  The Harlan County Sheriff was J.H. Blair, an enforcer and strike breaker for the mine owners.

One night some of Blair’s thugs stormed into the Reese home, looking for Sam Reese.  He had been tipped off and was not there.   They terrorized his wife Florence and his children but didn’t get Sam.

After they left, Florence, angry and scared, wrote a song on the back of a calendar, expressing her devotion to the union and her contempt for those who failed to support the strike.   Here is a link to Pete Seeger and his banjo, singing Florence’s song:

Whose Side Are you On

While watching CNN and MSNBC about this budget episode, I kept getting madder and madder and I remembered that old song.  So I wrote my own version:

In our US Congress
There are no neutrals there
You either vote your consciences
Or whore for billionaires

[chorus]
Which side are you on?
Which side are you on?
Which side are you on?
Which side are you on?

Obama we’re in danger
The wolves are at our door
We don’t need reasoned argument
We need a two-by-four

[chorus]

Barack Hussein Obama
How dumb can you get?
A shepherd cannot safely try
To make a wolf a pet!

[Chorus]

It’s time to rein in Wall Street
Our country’s not for sale
At ballot box and in the streets
We must fight and prevail.

[Chorus]

Thank God for Betsy Warren
She speaks for us out loud
She does not hedge or compromise
To blend in with the crowd

[Chorus]
No go along to get along,
She hews to moral rules
She tells it straight and tells the truth
She has no time for fools

[Chorus]

I don’t yet know how this drama will end, but I’m not optimistic.

Bob

Universal Service

September 3, 2014 § 6 Comments

I have a proposal for consideration.  I know that, at least for today, it has no chance of any consideration.  It may be a permanent “non-starter”, the common euphemism for a fatuous fantasy.  Still, because I have been thinking about it, I have decided to own it by posting it on the internet.

The Program

I propose that the United States Congress enact a law requiring every citizen of the United States, on the day he or she becomes eighteen years of age, be drafted into public service for a period of two years.   No exemptions should be granted for physical impairment (unless the impairment is so severe that the person is unable to perform any useful work).  No exemption should be granted to permit the person to attend an educational institution.

The draftee should be permitted to apply for available types of public service and the applications should be approved or denied by boards of citizens residing in the communities where the draftees live (similar to draft boards during WWII).

Those decisions should be based on a quota system established to insure that enough applicants are approved to perform all the tasks and goals set for  public service during the period for which the draftee is being considered.  One of the categories of public service should be military service.  That category should be large enough to insure that the national security requirements of the nation are satisfied.

The non-military categories would consist of such tasks as public park construction and repair; public school construction and repair; teacher aide and student mentoring; expanding the availability of health care to under served communities with supervised health care trainees; and other public service jobs.  The model would be the CCC program of the 1930’s.

One feature of this program should be the extension of the GI Bill to insure that each draftee is able to enroll in a college,  university, technical school or apprentice program for a period of at least four years.  It should provide for payment of tuition and a stipend sufficient to support the draftees who choose to take advantage of the education benefit.

The Draftees’ Reaction

I assume the young people would complain about this idea, but spending two years between high school and college, some job  or career  wouldn’t damage them as much as they might think.  After all, we all live longer now, so they’d have had plenty of time to make mistakes after they reached  twenty.  Getting a late start wouldn’t be so bad.

When I was eighteen, I had the results of polio and didn’t qualify for the draft.  But I would have been happy to join this kind of program.  I probably would have married my sweetheart,  just like I did.    We would have found some way  to work together and we would have been fine, probably better than the way it actually happened.  Who knows?  One thing sure.  It wouldn’t have been the end of the world.

The Why

This would address five problems.

First, it would moderate the eagerness of our population to goad our government toward military solutions for world problems.  If our military forces consisted of a general cross section of our population, mothers would not be so sanguine about going to war.

Second, it would transfer a sizable amount of money to American young people as well as furnishing them with employment alternatives to gang membership, drug culture and irresponsible idleness.

Third, it would enable generations of Americans to get college educations.

Fourth, the transfer of money the program  would help to solve the inequality problem  presented by Thomas Picketty.

Finally, it would encourage a sense of community and involvement in public service, a counter measure against the current and growing culture that foments division and suspicion, especially based on hatred of democratically elected government.

Conclusion

Well, if you’ve read this far, you’re probably shaking your head and have concluded that Bob has finally lost his last marble.  I know this is a fairy tale today.  I don’t like professional armies.  I don’t like wealth inequality.  I don’t like price tags on higher education that limit it to a dwindling elite class.  I don’t like military cops and center city crime and a criminal justice system that jails generations of mostly black young men.  I think this would address those issues.

What do you think?

Bob

 

 

The New American Terrorists

October 2, 2013 § Leave a comment

First, a Correction Notice

I have made some corrections to my last post (www.bobsremonstrance.com “A Mind Meld, a Grok and A Couple of Reactions”).  The substance has not changed, but I have removed two or three “that”‘s that escaped my notice when I originally edited it.  “That” is a word almost always as useless in a written piece as “you know” in a conversation.  I ordinarily  excise the “that”‘s that creep in but, this time, I missed some.

Also, in memory of my high school English teacher,  I cleaned up a sentence in the part about “Crime and Punishment”.   I originally wrote: “The novel is an engaging description of a part of Russian society, set in St. Petersburg.”  My only excuse is an aging brain.  The sentence now reads, “The novel, set in  St. Petersburg, is an engaging description of a part of Russian society”

Finally, I removed the redundant word “mental” from my effort to describe Styron’s long window into the mind of Peyton.  I wrote that he described her “mental musings”, as if “musings” could be other than “mental”.  So “mental” is now gone.

Is There A Conspiracy?

I have long considered those who interpret current events as the product of conspiracies to be CooCooBirds.  So, with great hesitation, I present my version of the present struggle over funding our government and paying our bills.  I hope I am wrong, but the evidence seems persuasive that we have among us a cadre of powerful and wealthy individuals who want to convert the democratic republican government of the United States of America  into a plutocratic corporate oligarchy.

American Business Community:  Has It Been  The Dog That Didn’t Bark?

I have a friend who never tires of rebuking his liberal comrades for claiming and assuming that the GOP is the party of business.  He insists that the Tea Party insurgency within the Republican Party has separated it from  the interests and policies of American capitalism.  As he analyzes the issue it reminds me of the epic struggles within the labor movement in the 1930’s when factions allied with the Communist Party sought leadership roles.  There were some unions in which they had some success but the newly organized CIO, notably the Steelworkers and the United Auto Workers, fought back in a series of epic convention battles.  The Communists were effectively drummed out of the labor movement and never gained any significant power in unions.  My friend contends that the relationship between the Tea Party and the GOP is similar to the Commies versus the CIO.

In the last week the press has reported that agents of the Chamber of Commerce and some representatives of Wall Street’s financial community met privately with House Speaker Boehner and other GOP leaders.  They  expressed alarm at the prospect of a government default if the “debt ceiling” is not raised.   In apparent response, Boehner stated he will not allow that to happen.  The Tea Party members, led by Ted Cruz continues to threaten a default.  It remains to be seen how this will play out.  Boehner’s statement is interesting.  He is not promising that his party will not threaten a default; just that they won’t allow a default.  How kidnapping extortion works when there is no threat to shoot the hostage is a mystery.

Those who insist GOP policies no longer align with those of the  capitalists point to these reports as confirmation of their argument.  I see the matter somewhat differently.  I perceive the Tea Party as the latest iteration of a movement, attitude and set of policies that have roots planted long before they acquired the clever “Tea Party label .  They can be summarized with three words:  Hate the Government.

This history can be traced through rhetorical artifacts.   In 1978, Alan Greenspan told a Finance Committee, “”Let us remember that the basic purpose of any tax cut program in today’s environment is to reduce the momentum of expenditure growth by restraining the amount of revenue available and trust that there is a political limit to deficit spending.”  A Wall Street Journal article quoted a Reagan staffer who summarized the idea with a bumper sticker quip, “Starve the Beast”.  St  Ronnie, in his 1981 inaugural address, said, “Government is not the solution to our problem; government is the problem.”  Grover Norquist stated the goal plainly:  “I simply want to reduce it [the govenment] to the size where I can drag it into the bathroom and drown it in the bath tub.” The Great Communicator told his adoring followers,  “The nine most terrifying words in the English language are: ‘I’m from the government and I’m here to help’.”

These ideas, repeated and elaborated over and over by hate radio hosts like Limbaugh, Hannity and dozens of others scattered throughout the country, embedded  themselves in mainstream consciousness and had powerful effects.  I believe they relate to the present political climate and the outsize influence of the “Tea Party” in the same way that the Taliban’s ideas  related to the advent of Al Qaeda in Afghanistan.  This “hate the government” policy is to our democracy as the dogmas of Sharia are to Muslim ideas of government.  It is true that the Taliban does not represent the policies of the majority of Muslims.  Most Muslims do not favor government run according to Sharia law.

Unlike the labor movement, however, the Muslim/Arab community, while some representatives have disclaimed allegiance to Al Qaeda, has mounted no vigorous public opposition to the growth of that extremism.  Recent developments in Egypt reflect how timidly and ineffective such opposition has been.

And, also unlike the labor movement, the American business community, far from denouncing the growing political clout of these government haters, have favored, with generous financial support, candidates who have based their campaigns on these “hate the government” policies.

Why Did  the Business Dog Not Bark?

I began by asking myself why the corporate business community would permit the Republican Party to threaten the stability of our financial system by failing to make timely interest payments on our debt.  I assume the Koch brothers, the Club for Growth, the other controlling owners of Big Oil and  the complex of Wall Street banks and hedge funds could exert a powerful influence on the policies of the GOP  should they choose to do so.  They have certainly paid handsomely for that kind of access.  So, intimately involved as they are in the domestic and international financial markets, why would they allow a US default that would do immediate and long term damage to the reputation of U.S. bonds?  To oversimplify, why would they want to damage the ability of the U.S. government to borrow money at low rates of interest?

When I stated the question in this simple way, I caught a glimpse of the answer:  If their goal is to weaken and, if possible, destroy the ability of the U.S. government to create and maintain programs that protect ordinary working class citizens from the turbulence of unregulated capitalism, they would prefer that the funding of such programs be dependent on the power to tax, not the ability to borrow.

Government, like private enterprise, cannot grow if it lacks access to borrowed money at reasonable interest rates.  Powerful corporate businesses are intuitively and invariably opposed to taxes and government regulation.  The Supreme Court  has enabled such interests to wield virtually unlimited power to favor obedient politicians and to punish disobedient ones.  Thus armed, they probably are confident  they can prevent large tax increases.  And, if taxes must be raised, they have shown impressive ability to insure they are levied against the middle class, not the corporate ruling class.

I believe the silence and indifference of the business community to the growth of these ideas has resulted, in part, from changes in the nature and makeup of that community.  The wealth and power of American capitalism has become more concentrated in the financial system.   Engine Charley Wilson’s claim that “What’s good for General Motors is good for America” seems quaint in today’s America.  General Motors owes its existence to a Democratic Party president and a financial life preserver tossed by the government.  Wall Street banks have become so powerful and so capable of capsizing the American economy that the Attorney General has pronounced them “too big to fail and too big to jail”.

I believe the present conspiracy is the result of a very long train of events that were engineered by a relatively small group of people who were active in business, but who did not comprise the mainstream of business leaders.  They created think tanks, institutes, foundation-funded university and college chairs and fellowships.  They promoted candidates whose rhetoric identified the federal government as the enemy.

The complicity of the mainstream business community consists, I believe, in its enthusiastic embrace of the results of these political tactics.  They have eagerly applauded the destruction of the labor movement.  They have railed against fair taxes.  They have bitterly opposed reasonable regulations.  They have contributed large amounts of money in support of  candidates who preached hostility toward the government in which they  sought elective office .  The business community has, like Dr. Frankenstein, created a fiend they did not fully understand or expect.

We will soon discover whether American capitalism will forswear its Faustian bargain with the Tea Party and force a return to rational politics.  Regardless of the brash claims of independence by the Tea Party office holders, I believe if they were told that pursuit of their destructive policies would net them a few hundred million dollars worth of opposition  when they run for re-election, their devotion to principle might wane.  So long as the opposition of  Wall Street is limited to “tut tut” and “shame on you”, I agree with the Tea Partiers:  “These guys are not for real.”

Safe Havens for Domestic Political Terrorists

During the past ten years, using arcane political ploys, too complicated to  attract the attention of ordinary voters, the corporate plutocrats and their client state office holders have  created a network of what the British once called “rotten boroughs”, voting districts composed of like-minded constituents who would return representatives to Congress regardless of how dramatically their views differ from those of the majority of Americans.  These were and are safe havens for the Tea Party caucus.  They are the American Afghanistan.  In Texas this was engineered by Tom Delay, a creation of corporate lobbyists.

Who Are These Terrorists?  What Do They Want?

The carefully crafted political climate in those districts has enabled the election of a group of Congressmen who regard government as the enemy.  They are not anarchists.  They favor government policies that protect property rights, provide for an expanding military force and other services that facilitate business activities.  So far as concerns such functions as the “safety net” and promoting the “general welfare”, they regard such expenditures as charity, inappropriate for taxpayer support.

The above described political strategy and policies have been accompanied by an effective media campaign powered by Fox News and talk radio.  An echo chamber has been created in which a significant percentage of our citizens live and work.  There they are relentlessly bombarded with reasons for hostility toward their government, especially the federal government.  So-called “social issues” like abortion and gay marriage are featured.  The Bill of Rights is interpreted to be important as protection of  gun ownership and property rights, but as a hindrance to apprehension and punishment of suspected criminals.  Above all, taxation to pay for relief from poverty is denounced as theft and an invitation to moochers and lazy loafers.  Government regulation is blamed for interfering with the pursuit of profits and healthy competition.

Federal laws enabling workers to bargain through labor unions have been gutted.   There is no “labor movement”; only a few vestigial survivors of the struggles that occurred during the first half of the twentieth century.  The only effective organizations capable of exercising significant influence on national political policy are private corporations.  Political party organizations are generally ineffective.  Political candidates create ad hoc organizations that disappear after elections.

What If They Prevail?

The end result of these developments is easy to envision.   If the policies they represent prevail, the decisions affecting the lives and fortunes of ordinary Americans will not be made in the halls of government in Washington D.C..  They will be made in the board rooms of a few corporations with enough power and money to control lower tiers of lesser corporations whose success depends on access to capital and favorable treatment by the tycoons of finance.  The profit motive  and free market capitalism will replace any thought of empathy, compassion or fairness as determinants of government policy.  Workers with no bargaining power, facing fierce competition for jobs, will be forced to accept whatever employers choose to offer.  The “Iron Law of Wages”, rejected as morally unacceptable by Ricardo, will become the hallmark of American labor policy.

We’ve Seen An Earler Version of This Movie

Our history offers a preview of how this looks.  In the early 1900’s a few powerful business giants controlled the railroads, the coal, the iron and the Wall Street banks that, in turn, operated the United States as a corporate subsidiary.   This was the age of the “Robber Barons”.

That earlier period of institutionalized selfishness and greed did not permanently change our country because its victims fled westward into the still sparsely populated frontier of our vast land.  Also, in the 1920’s, the Wall Street casino, operating without any significant regulation, created a gigantic bubble of exuberant greed that finally popped.  FDR and his brain trust cleared away the wreckage and established a new system based on a balance between capitalism and government.  That effort was aided by the financial stimulus required by our  mobilization to fight WWII.

How Did Domestic Political Terrorism Become a Political Strategy?

Fifty years later, led by Ronald Reagan, the government began dismantling the balance established by the New Deal.  He began by attacking labor unions.  He used his office to demean and discredit every government program designed to alleviate poverty and enable the underprivileged to enjoy a reasonably comfortable middle-class life.  He used his skills as an actor to spin yarns about “Welfare Queens”.  He inspired a generation of government haters to follow his example and design ways to foster distrust and hostility toward the United States government.

This effort, in the past five or six years, has emboldened a group of angry ideologues, calling themselves the “Tea Party”, to claim the right to set minimum standards of political purity for the Republican Party.  Like Al Qaeda, they are so loosely organized that identifying their responsible spokesmen is difficult.  They have an agenda, but no formally elected or appointed leaders.  They operate like free-ranging enforcers of their ideology.   They have demonstrated their ability to intimidate members of the GOP holding public office who, if they stray from the dictates of the Tea Party, find themselves opposed by primary candidates more aligned with its dogmas.  Ted Cruz, a first-term Senator from Texas, is their Supreme Leader.  His current fatwah requires a jihad against the Affordable Care Act.

The Sequester

In 2011, the President and the leadership of this terrorist group made a deal.  It was in the form of a promise to make a deal.  They promised to reduce the federal deficit by a stated amount by January 1, 2013, and, to insure that they would bargain in good faith on ways to achieve that goal, they agreed that, if they failed to keep that promise, a group of  budget cuts would be imposed in ways thought to be so irrational as to  be unacceptable to either political party.

The negotiations that followed revealed that, contrary to expectations, the domestic terrorist group declared they were agreeable to the irrational budget cuts and, hence, would not agree to any reasonable alternative.  On January 1, 2013, an impasse occurred and the damaging budget cuts took effect in March, 2013.  The domestic terrorists were emboldened by what they regard as their successful strategy aimed at weakening and crippling the federal government, thus fulfilling their promise to the electorate in their Afghanistan districts.  They learned that, by focusing on sabotage rather than governance, they could not only survive, but exercise power.

The similarity of this recent history to the strategy of the Bolsheviks following the 1917 Russian revolution is remarkable.

What Happens Next?

I think, during the next few weeks, this domestic terrorist group will mount an assault on the financial system of the United States by forcing a default on our bonds.   If they are successful, the economy may gradually slide into a new form of recession.   This time, weakened by the debt default, the government may not have the ability to counter the faltering economy with financial stimulus money.  Any chance of moving forward with gun safety laws or immigration reform will disappear.  The wish list of America’s most powerful and ruthless corporate enemies of the federal government will become the agenda of the Tea Party’s next fatwahs.

If this happens, it is difficult for me to believe that it will occur by accident.  It will convince me that there has, indeed, been a well thought out and deftly executed conspiracy to take over our government by a corporate plutocracy.  I know this sounds like Joe McCarthy and the John Birch Society in  the 1950’s railing about the “communist threat”.  I only hope it proves to be as goofy as that.

Bob

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

August 25, 2013 § Leave a comment

Summary

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

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

Bush, Cheney and Rumsfeld – The Dumb War

      The Dumb Designation of a Crime as a War

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

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

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

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

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

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

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

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

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

     A Dumb Way to Wage a Dumb War

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

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

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

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

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

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

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

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

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

    Dumb Snipe Hunts

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

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

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

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

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

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

That reaction awaited the Snipe Hunters.]

      The Dumb War Dictionary

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

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

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

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

     Dumb War in Somalia:  A Debacle

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

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

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

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

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

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

The Track and Whack War

     The Pirates’ Mistake

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

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

     Obama’s GWOT  Army

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

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

     Rendition and Interrogation

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

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

     The Bombing of Majalah

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

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

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

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

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

      It Gets Worse

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

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

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

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

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

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

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

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

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

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

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

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

     Horror at Gardez

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     The Anwar Awlaki Story

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

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

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

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

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

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

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

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

     Signature Strikes 

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Bob

Secret Decisions of Secret Courts: Anathema to American Justice

July 7, 2013 § 4 Comments

A front page story in today’s New York Times describes how the FISA Court is creating a secret body of law that affects the life of every person who has lived in the United States during the past six years and millions of others who live in other countries.  Here is a link to that important story::

Secret

I believe this story describes an issue  far more important to the future of our country than the government mendacity exposed by the Pentagon Papers.  To appreciate how fundamentally this threatens a vital principle of our legal system, it is necessary to consider its implications.

First, we claim that our government’s legitimacy is based on our consent, the “consent of the governed”.

Second, our Constitution provides that law making is reserved to the Congress.

Third, our legal system is based on two kinds of law:  statutory law, including constitutional law, and common law.  Common law is a system of law we brought with us from Britain.  It is based on the accretion of precedents consisting of decisions of previous courts.  The doctrine according to which it develops is stare decisis, which is Latin for “to stand by things decided”.  The principle involved is that the law should be applied alike to similar issues; that its interpretation should not depend upon the identity of the litigants.  This enables people to predict, with a reasonable degree of confidence, what the decision of a court will be, given a particular set of facts.  It insures that justice for one will be justice for all.

Fourth, we, the people, choose those to whom we entrust the power to make laws that affect us.  We make those choices through democratic elections.  To make those choices intelligently, we need and are entitled to pertinent information, so that, if the lawmakers we chose do not exercise their authority to make laws that please us, we can fire them and hire replacements.

I apologize for repeating these elementary principles.  I know they are taught, or should be taught in  public schools.  I do not intend to condescend to my readers but, given the nature of the recent discussion of the FISA court and the N.S.A. surveillance it  has been authorizing, I have some doubt that the commentators are paying appropriate attention to these fundamentals of our government and our political system.

We now know that the FISA court, eleven judges appointed by Chief Justice Roberts, ten of whom are appointees of Republican Presidents, has, in a series of hundreds of decisions, each one building on its predecessors according to the doctrine of stare decisis, erected a legal structure that approved the gathering by our government of a  trove of data containing every tiny detail of every move, choice, purchase, communication, financial transaction, preference and relationship of every person in the United States and, as stated, uncounted millions in other countries.  That data, in turn, has been opened for analysis according to rules and choices made by government officials and private contractors’ employees, supervised by secret decisions made by the FISA court.

Without knowing what, if any, polling has been done following these disclosures, I feel absolutely safe in assuming that most people, here and abroad, were astonished when they discovered that such intimate details of their lives were recorded in searchable databases owned by the United States government.  That astonishment means that the above-stated system of government has not been operational concerning this matter.

It is true that, theoretically, the members of Congress have been able to find out about these developments.  It is also true that “theoretically” is the operative word in that sentence.  It is obvious that a majority of the members of the House and Senate did not take the trouble to find out the details of FISA’s proceedings and decisions.  It is also true that, when a Senator, e.g. Senators Wyden and Markey, tried to find out some of the details, N.S.A. declined to answer their questions.

Because of this lack of public knowledge, the Fourth principle stated above, did not work.  We, the people, did not express our opinions about what N.S.A. was doing or how the FISA court was interpreting the laws our elected representatives enacted because N.S.A and the FISA court kept what they were doing a secret.  In other words, democratic government was sidelined behind a wall of classified insulation.

I am outraged about this and I think others should be also.   If we no longer believe that we can bear the risks of living in a free country, we should stop pretending otherwise.

I am afraid my fellow countrymen are in danger of falling into a trap that government always uses to lull guileless people to sleep:  “If you haven’t anything to hide, you need not worry about our right to pry into your personal life.”  I wish the FISA court would decide that personal diaries might offer “foreign intelligence” and order all diaries submitted for copying by a government agency.  Maybe then, people would wake up and realize that, regardless of whether they “have anything to hide”, they don’t like the government intruding into their private lives.  Of course I”m dating myself with that fantasy.  No one keeps a diary anymore.  They post everything on Facebook or Twitter or some other public forum.

The insidious and sinister nature of the N.S.A. surveillance program is that it enables the government computers to fish for “patterns” that are then interpreted to mean various things about the person whose data is analyzed.  When we go about our daily lives, we do not consider how our choices made over a period of years can be filtered and sorted to appear dangerous or scandalous or embarrassing.  When all the data is available, “connecting the dots” depends on the biases and motives of the connector, not necessarily those of the connectee.

There is a good movie that perfectly illustrates the concerns I am trying to express here.  “Lives of Others” is a 2006 movie about the Stasi, East Germany’s intelligence police and their obsessive accumulation of information about East German citizens.  I don’t know where or if it is still available.  I assume it is probably on sale at Amazon.  If it becomes available on some TV channel to which you subscribe, check it out. Like “1984” and “Brave New World”, it expresses dramatically what I’m trying to express here.

I have no reason to believe that the present government has malevolent intentions concerning the use of the data that has been accumulated.  I do not know, however, about the intentions of those who may have access that data in the future.  It is a “weapon of mass  destruction” whose ownership and control  should not depend on the outcome of future elections.

James Mason, a legal scholar and one of our founding fathers, once wrote, “Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.”

The Prism of Work

June 3, 2013 § 4 Comments

Summary

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

The Dissent

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

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

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

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

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

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

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

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

Some Comments on the Dissent

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

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

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

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

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

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

A Lawyer’s Way of Interpreting Contract Language

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

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

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

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

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

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

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

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

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

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

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

The Political Dilemma

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

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

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

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

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

A Solution to the “Hiding in Caves” Problem

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

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

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

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

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

The Prism of Work

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

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

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

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

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

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

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

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

Here is his description of this difference:

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

Veblen described the two separate “employments” as follows:

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

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

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

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

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

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

Bob

Lynch Law

May 20, 2013 § Leave a comment

,Summary 

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

Lynch Law 

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

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

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

A Brief Historical Comment

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

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

War and The Law

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

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

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

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

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

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

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

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

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

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

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

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

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

The “War on Terror”

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

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

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

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

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

The Advent of the Drone

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

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

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

The Supreme Court and the “War on Terror”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Summary

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

Anwar Al-Awlaki

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

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

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

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

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

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

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

Democracy Now One  Democracy Now Two

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

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

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

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

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

An Afterthought

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

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

Bob

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