Essentially Contested America

The attacks on our country on September 11, 2001 dramatically alerted our nation to the threat of international terrorism.  Our lawmakers responded by authorizing attacks on the country that had harbored the 9/11 terrorists, and anti-immigration measures to keep the terrorists out.  The threat of international terrorism is real, but recent events remind us that Muslim extremists from across the globe are not the only terrorist threat facing us.  Before there was 9/11, there was Oklahoma City and Timothy McVeigh, and we still are plagued by right wing extremists in this country.  Yesterday, a vocal anti-Semite and Holocaust denier, James Von Brunn, killed a security guard at the Holocaust Memorial.  As bad as the incident was, it could have been much worse.  Crowds of people were inside the museum, some waiting to attend the premier of a new play about anti-Semitism and racism, Anna and Emmett.  NPR reports that among those expected to attend was Attorney General Eric Holder.  Two weeks ago, anti-abortion activist Scott Roeder murdered George Tiller, a Wichita doctor who provided late abortions.  Now Roeder is warning of more violence, claiming that there are “many other similar events planned around the country.”  Other anti-abortion activists say this is wrong, but do they really know?

Both Von Brunn and Roeder are well known for their outspoken extermist views.  Moreover, these events are particularly disturbing given that gun sales have surged since Barack Obama was elected president.  What are our lawmakers doing about it?  Nothing.  Instead of acting to protect us, Congress recently authorized the possession of concealed weapons in national parks.  It’s about time that we started taking the treat of domestic terrorism seriously, before more innocent people are hurt.

Just before the United States invaded Iraq in 2003, I had an argument with a friend of mine who supported the invasion.  I told him that I did not think there was any reason for the United States to invade Iraq.  He asked me whether I thought that the President was lying about weapons of mass destruction, and was astounded by my answer.  My friend was astonished that I believed that  the President of the United States, leader of the free world, would lie to the American People about such an important issue.   Oh, what an innocent time that seems now!  Now, we know that not only was President Bush lying then, but that members of his administration continued to lie about the reasons we were in Iraq after it became clear that there were no weapons of mass destruction.  Most notably, Vice President Cheney spoke often about the supposed link between Sadam Hussein and the 9/11 attacks, even though no such link was ever established.

The release of the torture memos last week gives us an upsetting glimpse into the inner workings of the Bush administration during that time, and may provide evidence that the administration was involved in an even bigger lie.  Why would the US intelligence officials use torture on terrorist suspects when not only were those methods prohibited by US and international law, but those methods had never been proven to work better than other interrogation techniques?  We have now learned that the torture methods used by US intelligence officials were modelled on methods used by the North Koreans to illicit false confessions from captured members of the US military.  Why would our government want to illict false information?  Could it be that our government used torture to try to manufacture a link between Iraq and 9/11, betwee Al Qaeda and Sadam Hussein?  If so, then our government was using inhumane interrogation methods such as waterboarding, that we have prosecuted as war crimes in the past, not to protect us, but to keep us in the dark.  It’s a shocking proposition, to be sure, but given what we have learned, we need proof that it’s not true.  That’s why we need an investigation into the Bush administration’s torture policies – to make sure our leaders didn’t use torture to support their lies, and to keep from telling the Big Lie to us again in the future.

The discussion regarding what to do with the writers of the infamous torture memoranda continues to heat up.  With President Obama arguably switching his position with respect to whether those responsible for the torture policy and the legal memoranda behind it will be allowed to be prosecuted, the controversy will not end quickly.  This is just fine with a criminal law professor like me because it allows the public the opportunity to think about an issue that criminal law professors think about often, but that the public and the press rarely do:  prosecutorial discretion.

The decision to prosecute or not prosecute with respect to those who wrote the torture memoranda begins with two related questions.  The first revolves around whether criminal liability flows from the writing of the memoranda.  Criminal liability of some type must flow from the behavior before the issue of prosecutorial discretion arises.  The second question revolves around what the nature of the memo writers’ actions were.  At base, regardless of the technical statutory violations that could flow from the memo writing, the key question is whether the prosecutor will be seeking criminal charges essentially for the memo writers giving stunningly bad or ethically challenged or even morally bankrupt legal advice or for the memo writers being more generally complicit in encouraging torture to occur.   A decision to decline to prosecute what is merely horrible legal advice that can be interpreted to be a statutory violation is quite different than a decision to decline to prosecute clear complicity in torture that takes the form of providing legal advice that counsels and provides cover for torture.

Assuming that writing the memos constitutes a legal violation, prosecutors will, at a minimum, consider the following questions.  One, was the legal advice in the memos the extent of the memo writers’ involvement in the torture or was it merely the manifestation of their active participation in seeking to allow torture?  Two, were the memos merely the equivalent of providing transparent cover for what the Bush Administration was going to do anyway rather than the actual genesis or basis for allowing torture?  Three, would punishing the memo writers lead to better legal advice in the future for the President and other governmental actors?  Four, is punishment necessary?  The Obama Administration has a long way to go toward deciding whether it needs to or how to exercise prosecutorial discretion.  However, it should be clear that the exercise of discretion – assuming laws were broken – will be a blended legal-political decision rather than a pure legal decision.  In that vein, President Obama, rather than Attorney General Holder, arguably should make the final decision regarding prosecution.

Although not as widely discussed as it should be, there have been reports over the past week of President Obama’s possible endorsement of negotiating with the Taliban. Consider: “[L]ast Friday, in an interview with The New York Times, Mr. Obama opened the door to approaching elements of the Taliban, if his administration’s review recommends it. He cited an argument he attributed to Gen. David H. Petraeus that ‘part of the success in Iraq involved reaching out to people that we would consider to be Islamic fundamentalists, but who were willing to work with us.’ Mr. Obama added that ‘there may be some comparable opportunities in Afghanistan and in the Pakistani region, but the situation in Afghanistan is, if anything, more complex.’” On the other, hand this approach may be misguided for at least four reasons.  First, negotiation with the Taliban means giving up any prospect of lifting the veil of oppression against Afghan women.  Second, even if successful, it might only garner the United States a greater number of troops to fight the more intransigent Taliban and Al-Qaeda forces. We will still be locked into a war in a hostile terrain against fighters who promise not to retreat. Third, it might mean giving up the chance to root Al-Qaeda out of the Pakistani territories that border Afghanistan. The most important issue in Afghanistan-Pakistan is working with the governments of these two nations, if possible, to prevent safe haven for Al-Qaeda and other terrorists groups in the tribal areas on the border of Afghanistan and Pakistan.  The worst possible scenario is for hard line Al-Qaeda and the Taliban to gain control of Pakistan, a nation whose nuclear capacity is a well known. Finally, even if trying to split the Taliban by attempting to negotiating with those more “reasonable” members of the klan, what is the sense of announcing that this is our intention in advance.  President Obama needs to rethink his strategies in this regard.

George W. Bush will soon be leaving the White House. Unfortunately, his pernicious legacy will plague us for decades. His gratuitous and catastrophic invasion and occupation of Iraq, his failure in Afghanistan, his failure to prevent the ruination of the American economy, and his corruption in awarding contracts in Iraq, the failure of the reconstruction of Iraq, and most recently his imposing “midnight” regulations, some of which the new president will have difficulty in overruling. Although there’s nothing particularly funny about the Bush administrations perfidy, watch the video below to see a portrayal of a morally impoverished individual who never should have been in a political leadership position, let alone president of the United States.

Concentrating on Mr. Bush might miss an important point. It’s those Americans who voted for him, especially those who voted for him in 2004 after they knew of how immoral, incompetent, and dangerous he is, that deserve special condemnation. What more do people need to know after learning that all the reasons the Bush administration gave for invading and occupying Iraq were a charade in order for them to condemn him and support anyone else running for president or refrain from voting entirely? What more did these people need to know before condemning a president whose legacy will certainly be that he is clearly the worst president in American history. So farewell Mr. President and shame on you and those Americans who made your presidency possible.

The depraved had their way in Mumbai over the course of the past few days, while the world continues its blind response to terrorism. No doubt the terrorists and those who finance them are morally impoverished villains who trade in blood and ruin. But the real culprits are those “civilized” leaders who are simply unwilling to expend the moral and financial capital required to render the free-floating epiphenomenalism of terror extinct.  If national leaders were determined to end the root of terrorism–the Arab-Israeli conflict and the conflict over Kashmir, for example, support for terrorism would diminish or be eliminated. Instead, the quest for consensus, cooperation, and compromise seems to founder when faced with dedicated zealots, religious and otherwise. Perhaps terrorism is useful for some world leaders, but then their bluff should be called.

Over the course of the next several weeks there will be a cacophony of moral indignation and calls for retribution. Indeed, one of the initial victims of this madness probably will be President-elect’s Obama’s determination not to torture for how can a rational person abhor torture when torturing might prevent the seize of a city and the slaughter of its citizens. This approach, however, merely stokes the flames of terrorism. It’s a commitment to the same failed strategies believing irrationally that the consequences somehow will be different.  The only way to tackle malevolent terrorists who feed off the despair of others is to eliminate the despair. Fighting terrorism without addressing this despair is a fool’s game destined to exacerbate an already inflamed situation. Instead of posturing and pursuing superficial remedies, let’s commit ourselves to the eradication of the conditions that make terrorism possible.

It is virtually axiomatic that when people are terrorized by an enemy, self-defense is justified. No reasonable person doubts the force of this axiom. The problem, of course, is whether leaders of the terrorized are the best judges of fashioning proportional responses. Are they entitled, that is, to up the stakes and terrorize the terrorists? Fair play you say? Not under a constitutional democracy committed to human rights. The Bush-Cheney administration has sought, as other dictatorial regimes have done, to institute policies like water-boarding, not so much to obtain information, although that is always the stated purpose of dictators, but rather to terrorize those suspected of being terrorists. One additional feature of such reactive terrorism is to ignore the rights of detainees by, for example, denying the writ of habeas. This writ is the basis of any civilized society; it is certainly the basis of any civilized society paying even lip service to libertarianism. Yet, Bush-Cheney has no interest in civilization. Rather, they want to prevail no matter what the consequences. Yesterday, however, Bush-Cheney did not prevail. The court said no to current administration’s draconian practices of detention.

Intead, “[i]n a stinging rebuke to President Bush’s anti-terror policies, a deeply divided Supreme Court ruled Thursday that foreign detainees held for years at Guantanamo Bay in Cuba have the right to appeal to U.S. civilian courts to challenge their indefinite imprisonment without charges. . . . Bush said he strongly disagreed with the decision – the third time the court has repudiated him on the detainees – and suggested he might seek yet another law to keep terror suspects locked up at the prison camp, even as his presidency winds down. . . . Justice Anthony Kennedy, writing for the 5-4 high court majority, acknowledged the terrorism threat the U.S. faces – the administration’s justification for the detentions – but he declared, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” . . . In a blistering dissent, Justice Antonin Scalia said the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.” . . . Bush has argued the detentions are needed to protect the nation in a time of unprecedented threats from al-Qaida and other foreign terrorist groups. The president, in Rome, said Thursday, “It was a deeply divided court, and I strongly agree with those who dissented.” He said he would consider whether to seek new laws in light of the ruling “so we can safely say to the American people, ‘We’re doing everything we can to protect you.’” . . . Kennedy said federal judges could ultimately order some detainees to be released, but he also said such orders would depend on security concerns and other circumstances. The ruling itself won’t result in any immediate releases. . . . The decision also cast doubt on the future of the military war crimes trials that 19 detainees, including Khalid Sheikh Mohammed and four other alleged Sept. 11 plotters, are facing so far. The Pentagon has said it plans to try as many as 80 men held at Guantanamo. . . . Lawyers for detainees differed over whether the ruling, unlike the first two, would lead to prompt hearings for those who have not been charged. Roughly 270 men remain at the prison at the U.S. naval base in Cuba. Most are classed as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.” To read further click here.

This does not mean Gitmo detainees will be freed. It simply means that have a preliminary day in court. If you believe that even Hitler or the Devil should be treated fairly, you will rejoice at this decision, not because you believe in the possibility of Hitler or the Devil’s innocence, but rather because you are committed to the noble ideas of American constitutionalism.

Check out Bob Herbert’s piece in the today’s NY Times.

For many Americans, a little familiarity with human nature, made it quite clear that President Bush and company cooked the intelligence on Iraq. We knew that the administration and its neocon hit men wanted to invade and conquer Iraq for oil, to protect Israel, and generally to try to impose “democracy” on new governments in the area which would then owe their existence and allegiance to the great white father in Washington. It was necessary, however, to make the case for invading Iraq by implementing the greatest assault on the public of double-think, double-talk, and propaganda. And the “liberal” media supported this conservative administration without raising a skeptical eye. We realized that this campaign was quintessentially propaganda because whenever anyone characterizes a risky enterprise as a piece of cake, chances are they’re trying to sell you a bill of goods. But we lacked real evidence. No eye witness account. Now one of the significant, but not too significant, actors has come clean providing us with all the evidence we need to indict the Bush-Cheney regime for choosing to go to war despite the war being unnecessary. Here’s the story in a nutshell:

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Here’s the more complete story: “Former White House press secretary Scott McClellan writes in a new memoir that the Iraq war was sold to the American people with a sophisticated ‘political propaganda campaign’ led by President Bush and aimed at ‘manipulating sources of public opinion’ and ‘downplaying the major reason for going to war.’ . . . McClellan includes the charges in a 341-page book, ‘What Happened: Inside the Bush White House and Washington’s Culture of Deception,’ that delivers a harsh look at the White House and the man he served for close to a decade. He describes Bush as demonstrating a ‘lack of inquisitiveness,’ says the White House operated in ‘permanent campaign’ mode, and admits to having been deceived by some in the president’s inner circle about the leak of a CIA operative’s name. . . . The book, coming from a man who was a tight-lipped defender of administration aides and policy, is certain to give fuel to critics of the administration, and McClellan has harsh words for many of his past colleagues. He accuses former White House adviser Karl Rove of misleading him about his role in the CIA case. He describes Secretary of State Condoleezza Rice as being deft at deflecting blame, and he calls Vice President Cheney ‘the magic man’ who steered policy behind the scenes while leaving no fingerprints. . . .¬† reasons for invading Iraq, writing that he and his subordinates were not ‘employing out-and-out deception’ to make their case for war in 2002. . . . But in a chapter titled ‘Selling the War,’ he alleges that the administration repeatedly shaded the truth and that Bush ‘managed the crisis in a way that almost guaranteed that the use of force would become the only feasible option.’ . . . ‘Over that summer of 2002,’ he writes, ‘top Bush aides had outlined a strategy for carefully orchestrating the coming campaign to aggressively sell the war. . . . In the permanent campaign era, it was all about manipulating sources of public opinion to the president’s advantage.’” To continue reading click here.

McClellan stops short of saying that Bush purposely lied about his The strategy was twofold. First, the reason to go to war involved the neocon desire to revamp the map of the Middle East. According to McClellan, Bush & Company were committed to the oxymoronic term “coercive democracy,” the strategy of forcing traditional and tyrannical societies to become democratic or else. With grand Wilsonian irony, the plan envisioned the United States imposing democracy on several nations in the Middle East. But why coercively democratize the Middle East? The answer is simply this: oil and Israel. After all, Kim Jung-il, the North Korean dictator, has murdered more of his own people than Saddam ever dreamt of doing. But even though North Korea actually possesses nuclear weapons, confronting this dictator pays no oil dividends. The second part of the strategy was selling the war to the American people. The neocon conspirators knew their actual motives wouldn’t sell on main street. Accordingly, they devised a contrived campaign of smoking guns and mushroom clouds.

The White House was livid over the disclosures. According to the NY Times, “Mr. McClellan writes that President Bush ‘convinces himself to believe what suits his needs at the moment,’ and has engaged in ‘self-deception’ to justify his political ends. He calls the decision to invade Iraq a ‘serious strategic blunder,’ and says that the biggest mistake the Bush White House made was a ‘decision to turn away from candor and honesty when those qualities were most needed.” Mr. Bush’s press secretary, Ms. Dana Perino, who incidentally could not explain what the 1962 Cuban missile crisis was, took the last resort of a scoundrel by insisting that Mr. McClellan was ‘disgruntled’ and wanted to sell books. Ironically, this is the perfunctory charge McClellan was told level at other former official who wrote “tell all” books. Click here for the rest of the reaction.

Scott McClellan forges himself a significant place in history with his memoir. We now have the evidence for what we knew from the start. America was radically ill-served by a man with this inordinate capacity to deceive himself, and by doing so deceive us as well. There’s no greater example of this capacity than a reply Mr. Bush made to a question about Iran’s greater power in the area resulting from the invasion. To paraphrase, Mr. Bush was incredulous and said Iran has something to fear in the fledgling new democracy growing stronger at the Iranian’s doorstep.

Law students at the University of California-Berkeley protested yersterday at graduation, Professor John Yoo’s retention of the faculty. “Some 50 protesters, clad in orange jumpsuits and black hoods to emulate the infamous photos of prisoners in Iraq, picketed UC Berkeley’s law school graduation ceremony Saturday, demanding that the university fire Professor John Yoo for his authorship of the Bush administration’s policies on torture. . . . “We want to see him fired and disbarred for being a war criminal,” said Anne Weills, an Oakland attorney who said she was with the National Lawyers Guild, one of the groups that protested. “Academic freedom stops when you intend to harm or injure somebody.” . . . Yoo, a tenured constitutional law professor at Boalt Hall, took a leave of absence from 2001 to 2003 to work for the U.S. Department of Justice. During that time, he wrote what critics call the “torture memos,” which protesters say outlined the legal basis for the use of torture at the Abu Ghraib (Iraq) and Guantanamo Bay (Cuba) military prisons.

While the students have a right to protest, professor Yoo has a right to his opinion also. Casting this controversy in terms of the students’ free speech and John Yoo’s academic freedom, both of which are inviolable, treats this controversy superficially. The more salient question is whether the students’ contention that Yoo is a war criminal for his tenure in the admijninstration has any plausibility at all. Moreover, although Yoo claims he is not “fazed” by these protests, that’s too bad. Yooo’s analysis of the legitimacy of torture and his view regarding the inherent powers of the presidency depart from both traditional conservative and liberal viwews on these subjects. Consequently, one wonders whether Yoo, in his solicitude, ever tries to appreciate why his views repel so many different kinds of people.
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