Democratic Individuality

Guantanamo at 10: a Schmittian notion of executive power, part 2

2012-02-06T22:32:00.001-08:00

“Shouldn't lawyers and judges be especially sensitive to the juristic monstrosity of Nazi legislation? After all, instead of the ‘rule of law, not of men,’ an ideal that dates back to Plato and Aristotle, the fundamental principle of Nazi rule was the so-called ‘Leadership Principle,’ summarized in the slogan ‘The Führer's words have the force of law.’[Führerworte haben Gesetzes Kraft]. Don't jurists above all others have a professional duty to maintain the rule of law? The capitulation of the German profession, and especially the German judges, led to a great deal of soul-searching by jurists at a loss for an explanation. Were the German judges cowards, or opportunists, or so fanatical that they were willing to sacrifice their professional ideals for the Nazi cause? That was the question.” - from Westlaw: Brooklyn Law Review, Winter 1995 Symposium *1121 NAZIS IN THE COURTROOM: LESSONS FROM THE CONDUCT OF LAWYERS AND JUDGES UNDER THE LAWS OF THE THIRD REICH AND VICHY, FRANCE (h/t Todd Pierce)

Correction to part 1 here: Schmitt recommended Strauss for a Fulbright fellowship in 1932 which allowed Strauss to emigrate to Paris. He was not, as I said mistakenly, on Strauss’s doctoral committee (h/t Peter Minowitz).

In the 1933 letter to Loewith, Strauss’s phrase meskine Unwesen about the greedy nonentity (referring to putative modern reality, a deterioration of the slave morality of the Jews through Christianity, democracy, socialism and communism into the last men) that must be fought is an indication that Strauss was, though Jewish, pro-Nazi both in the 1930s and quite possibly throughout. In 1934, as William Altman has emphasized in his admirable book, The German Stranger, decoding Strauss’s own hidden or exoteric writing and probite (he never lies explicitly about what he thinks, just says things that will be taken by sleepy readers in the opposite sense from the one he means – for self-explanation, see Leo Strauss, Persecution and the Art of Writing). Jacob Klein, also a Jew who was a reactionary Nietzschean and briefly pro-Nazi, wrote to Strauss on June 19-20, 1934 - more than a year after Hitler came to power - about how he had been mistaken in thinking that the National Revolution was the antidote to the last men:

“It’s necessary for me to correct an error I’ve made repeatedly; it concerns National-Socialism…”

“I previously believed that it constituted part of that general and necessary movement that, having emerged from ‘liberalism,’ had at the same time had a dialectical [aufhebende] tendency to abolish it. In the framework of this movement, anti-Semitism also had its own place and an increasingly well-defined basis. All things considered, however, it constituted only one—though hardly adventitious—sideshow [Nebenerscheinung]. I expressed this thought, in a letter to you earlier this year. But this is simply not true.”

“National Socialism has basically only one principle: its anti-Semitism. Everything else is basically not national-socialist: it is entirely external imitation of Russian and Italian matters, beginning with the head-gear of the Hitler Youth and ending with certain senseless propositions relevant to Germany that have nothing whatsoever to do with what is actually happening.” (Strauss, Gesammelte Schriften, 3: 512-13)

On June 23, 1934, Strauss replied: ““Now to your general remarks, which surprised—not to say repelled—me through their defeatist tone. That one learns from events is good—but it does not follow that one can say what’s correct through them. And that is what you’re doing, it seems to me.” (Strauss, GS 3: 516-17. See also my “Shadings: “they consider me a Nazi here” here)

Strauss had written Remarks (Anmerkungen) on Schmitt’s Concept of the Political (1932) which strengthened its character as a reactionary document. Schmitt emphasized that politics was about having a great enemy. Contra Aristotle and like Heidegger, for both Strauss and Schmitt, having “friends” did not evoke, internally, a common good. And in Schmitt’s 1923 Political Theology as I noted in the first part of this post here, Schmitt began from the sentence: “he is sovereign who makes the decision in the state of the exception” (in today's idiom, "commander-in-chief" or "executive power" during a state of emergency).

As a Pentagon-appointed defense lawyer for Guantanamo prisoners (a Judge Advocate General attorney), Todd Pierce has had a striking view of the erosion of the rule of law in America; his words below about it are especially worth taking in. As he rightly emphasizes against Posner and Vermeule, during the Weimar Republic, Schmitt was not yet a Nazi though he may well have been pro-Nazi. Professors who avowed affection for the Nazis were fired, a form of persecution that Strauss emphasizes, on behalf of hidden writing, his own in Remarks and Schmitt’s, in Persecution and the Art of Writing. In the last paragraph of Remarks, Strauss says: "The critique introduced by Schmitt against liberalism can therefore be completed only if one succeeds in gaining a horizon beyond liberalism." (See Heinrich Meier: Carl Schmitt and Leo Strauss, p. 119). The exoteric or surface meaning, attributed by his followers anachronistically in terms of Strauss's shift during World War II toward the ancients, is: classical political philosophy. The other meaning, much more obvious in terms of 1932 as well as Strauss's critique of Schmitt from the Right, is: Nazism.

Toward the end of Weimar, Schmitt allied with the authoritarian general Kurt von Schleicher, a proto-Hosni Mubarak, as Pierce suggests, rather than a Hitler. But Schmitt became the leading Nazi lawyer, the Prussian Reichskanzler, and at a legal conference in 1936 fought for each Jew in the legal professor to be listed in the literature as the Jew so and so, handed out yellow stars in the legal profession, as an ingredient of what became the genocide (cf. Heinrich Meier, The Lesson of Carl Schmitt, ch. 4 , who delphically says that Schmitt’s behavior was “ugly,” but not wrong).

But Schmitt was for reactionary and tyrannical rule all the way through (for military dictatorship through the application of Article 48 of the Weimar constitution). He was a famous lawyer who opposed the law (an odd Catholic who recommended the miracle of Christ as opposed to the “rigid” law of the Jews) – see my "Politics and the God on Schmitt and Strauss" here and here - and a fascist before he became a Nazi.

In his Remarks, Strauss pointed out that Schmitt admired Hobbes for his emphasis on the state of nature as a state of war, but in fact, Hobbes, Strauss says cleverly, in a pre-bourgeois world, had founded the “liberalism” that both Schmitt and Strauss detested. Hobbes wanted to pacify humans (each of us, he begins, seeks to avoid violent death) by supporting a Leviathan. Hobbes did not realize that preserving the physical security of each is a common good (he helped generate this mistake in Schmitt and Strauss). Such “liberalism,” on Strauss’s view, did not see sacrifice of humans in war – and war itself, governed by no common good or ethics, the mere struggle – as the only serious antidote to the corruption and timidity of modern life. A reactionary Catholic, Schmitt did not like Nietzsche, but his description of modern life, made decadent by original sin from which men are saved only in war, coincides with Nietzsche and Strauss on the last men.

Hobbes sought peace; Schmitt and Strauss sought belligerence. In his Wall Street Journal article advocating tyrannical executive power here, Harvey Mansfield echoes the latter pair consciously. In The Executive Unbound: After the Madisonian Republic, Posner and Vermeule cheer on the atmosphere of commander in chief power and celebrate its origins in Carl Schmitt (as I noted in the first essay, Harvey chides them for letting the "esoteric" cat out of the bag….). This atmosphere was made central to the Bush administration and to American political life by political Straussians as well as other neocons like Posner and Vermeuele.

A further contributor to this intellectually and morally corrupt political environment is John Yoo’s "War Powers Belong to the President" written for the American Bar Association below, which Todd Pierce sent on to me. Yoo is a war criminal. He gave corrupt advice about the law to Bush and Cheney – deriding the Geneva conventions to which the US is obligated both as a signer and, domestically, by Article 6, section 2, the Supremacy clause of the Constitution which makes treaties signed by the United States the highest law of the land – in order to sanction the torture that was already ongoing. Yoo needs Obama’s slippage on this matter – and his failure to allow any investigation of the torture (a violation of Article 7, section 1 of the Convention against torture, signed by President Reagan and ratified by Congress – see here) – as a get out of jail free pass, to be. He seeks to make an ostensible “recognition of necessity” the law of the land. It is not (see the comments by Louis Fisher below). Yoo also seeks to make the worst aspects of Machiavelli American law (this distantly reflects the fascination of Straussians for the worst aspects in Machiavelli – see Thoughts of Machiavelli, Mansfield, Machiavelli's New Modes and Orders and Machiavelli's Virtue, not to mention a translation of The Prince and Carnes Lord, an advisor to former Secretary of State Alexander Haig, who wrote The Modern Prince: What Leaders Need to Know Now). Yoo positively chortles:

“In ordering the U.S. Air Force to attack Libyan targets on the ground and impose a no-fly zone in the air, President Barack Obama sent the U.S. military into combat without Congress’ blessing. This was not always President Obama’s view. Anti-war Democrats vigorously challenged President George W. Bush’s conduct of the wars in Afghanistan and Iraq by claiming that he had violated Congress’ right to declare war. As a presidential candidate in 2007, Obama once agreed: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

"Fast-forward four years. In announcing the intervention in Libya, Mr. Obama told Congress that he was acting 'pursuant to my constitutional authority to conduct U.S. foreign relations and as commander in chief and chief executive.' As the Libyan war reached its 60th day at the end of May 2011, President Obama sent a letter to Congress that reported on progress but did not seek any authorization."

"This time, President Obama has the Constitution about right.”

What Yoo does is to use Obama’s executive highhandedness in Libya – his disregard of the War Powers Act and of Congress – to claim obtusely that there is constitutional authority for this. But his real aim is just to wriggle out legally of being a torturer.*

By licensing Yoo, the American Bar Association makes the practice of torture – a matter of war crimes – merely something to debate. OJ Simpson should have tried that defense at his trial – really it’s just a matter of disagreement whether murder is bad. After all, some “lawyers” say no.

The American Political Science Association also perfumed Yoo – see the protest here – and Berkeley Law School (would they have a known murderer or rapist on the faculty, not at minimum suspended and investigated even one not yet apprehended by the law?). It is the the sanctification of these crimes by powerful institutions which gives Yoo’s - and others - criminality its continuing life…

Peter Minowitz has written to me that Yoo’s claim that the Geneva Convention was quaint was misrepresented by Todd Pierce and Scott Horton. On Peter’s view, Yoo was just saying some provisions were “quaint.” But this is not seeing the forest for the trees. What Yoo says in the memo as a matter for Bush and Cheney to act on, which Peter also sent:

"As you [Bush] have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW [the Geneva Conventions on Prisoners of War]. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists [my emphasis] and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians [an idle thought given the torture Yoo was sanctioning which made the rule of law, barring torture, inapplicable – one might even say “quaint”]. In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners [!!] and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments."

The operative notion is this paragraph is “the ability to quickly obtain information from captured terrorists.” Beyond this, what Yoo says is that “the new paradigm renders obsolete Geneva’s strict limitation on questioning of prisoners…” Quaint is just a repetition or embroidery, in this context, of obsolete…

Under Vice President Cheney, the US government was already torturing prisoners (and sometimes murdering them in American custody as well – 100 in the course of interrogation by Pentagon statistics – see Taxi to the Dark Side). Yoo was asked by Cheney to provide a legal cover for this and did. The spirit as well as the letter of Geneva is to prevent torture. What Yoo did was to attack the Geneva Conventions as “obsolete” to sanction already on-going torture. His use of the word “quaint” is but a rhetorical attempt to exempt himself and the Bush administration from future investigations about torture. The disparaging tone is, in intent, in service of war crimes…

To attack “Straussophobia” and perhaps "Yoo-ophobia," Peter – who does oppose torture - reads this passage in a tone-deaf way. But one has to work at it.

I turn now to the links between Strauss’s instructions on the need for authoritarianism to his politically active students who conveyed these ideas into the Republican Party as well as to some Democrats (Scoop Jackson, Daniel Moynihan) and to the neo-cons so that Vermeule, Posner, Yoo, Mansfield et al may burble them.

Herbert Storing was a fine student of Strauss (his 7 volume edition of the Anti-Federalist Papers is a gem). He admired Frederick Douglass and even Malcolm X, though he was a skeptic of King and the civil rights movement (allegedly not “manly” enough). Storing defended executive power and taught this to Gary Schmitt, a Straussian political activist in the intelligence establishment in Washington and one of three principals of the Project for a New American Century (the other two are Bill Kristol and Bob Kagan).

Michael Malbin, a student mainly of Walter Berns – also an advocate to this day of commander in chief power in Washington - see Berns’s 2009 "Interrogations and Presidential Power" in the Wall Street Journal here - and secondarily of Strauss, wrote the Iran-Contra Minority Report for then Congressional leader Dick Cheney, quoting Straussian arguments about executive power from Gary Schmitt (Schmitt was a protégé of Storing’s).** Interestingly, Cheney elides a Straussian (mis)interpretation of the law, featured in The Iran-Contra Minority Report, with the law.

Strauss’s closest student and political advisee/agent, Robert Goldwin, become a confidante of Rumsfeld and Cheney (Goldwin's words), in the Gerald Ford papers in Ann Arbor. Bob brought an overemphasis on the notion of royal prerogative from John Locke directly to Cheney who has sometimes referred to prerogative or executive power alternately to describe the doctrine that he projected into Washington (h/t Charles Butterworth who alerted me to Goldwin; Goldwin was unknown to Schmitt and a a later generation of less powerful neocons). Goldwin died in 2009 and at his memorial on January 15, 2010, Rumsfeld praised his enormous role – a “one man think-tank” - in these circles, his centrality in strengthening “conservative” – read reactionary or authoritarian ideology - down to advising on the imperial occupation of Iraq in 2003...

“Few individuals had as much influence on the thinking of conservative American policy makers and yet were as little known to the public as Bob Goldwin. Bob was a man of sweeping, ambitious ideas, but personal modesty and quiet competence. He had the rare talent of asking the right questions at the right time, and gently nudging discussions toward the `eureka' moment. Every conversation with Bob left you with a perspective you hadn’t considered before.”

“Bob Goldwin was the Ford administration's one-man think tank, its intellectual compass, and bridge to a new conservatism--a conservatism that was unashamed to be conservative.”

“Bob and I had known each other since his days at the University of Chicago. In 1972, I lured away my friend from his position as dean of St. John's College in Annapolis, Maryland to join me at NATO, where I served as U.S. ambassador. Two years later, I was called back to Washington to help the newly sworn-in President Gerald Ford, and one of the first people I recruited to the White House staff was Bob. Bob led seminars for President Ford in the White House solarium, bringing in some of the finest minds in America, not least his own, to discuss the toughest issues of the time."

"Bob Goldwin was the Ford administration's one-man think tank, its intellectual compass, and bridge to a new conservatism--a conservatism that was unashamed to be conservative. He helped provide the intellectual underpinning that convinced many Republicans that they didn't have to apologize when they stood for lower taxes or suggested that our strategy against the Soviet Union ought not be placation.”

“The ideas he corralled and the causes he championed--from opposing the creation of a new international bureaucracy with the Law of the Seas Treaty in 1982 to offering wise counsel on a new Iraqi constitution as recently as 2003--were without match. Bob was a valuable counselor and a dear friend."

"I considered myself one of his many students, and I know I will miss him. So too will America, but perhaps without fully realizing what is being missed.” See here.

As I discovered in doing research in the Strauss papers in Regenstein Library (the first non-Straussian admitted there by Strauss's second literary executor, Nathan Tarcov in 2008), I found a number of imperious althouth courteous letters from Strauss to Schmitt. For example, in the process of encouraging Goldwin to enlist James Kilpatrick, a leading segregationist from Virginia, to be one of four speakers at a Public Affairs conference, Strauss pointedly instructed Goldwin, February 13, 1961:

“I am especially interested in a plan of having a debate on SS [social science] and its political consequences in the last generation.…I shall illustrate what I have in mind by two examples...2) Desegregation and the findings of SS which allegedly demand desegregation. Here I would think we should have a guy from the deep south, say Dean H[W]iggins, a sociologist at Emory. Such a conference could be educative for the non-academicians by making clear to them what they cannot expect from the academicians.”

Goldwin organized public affairs conferences at Chicago and Kenyon, which allowed some debate between clashing points of view (though not, during the original conference, about segregation). The attendees were high public officials, Republican and Democrat.

In Washington, after he came with Rumsfeld in the early 1970s, the debates were often a breath of fresh air. Goldwin thus carried out one of Strauss’s exoteric ideas more seriously than Strauss himself (Strauss himself and most of his followers do not think out alternate views at all, most obviously those of Hegel***, Marx and modern radicalism or John Rawls’ democratic theory; Herbert Storing, and in this respect, Goldwin, are, at least about some important issues, admirable exceptions.

But Goldwin’s persistent advocacy of executive power and as a philosophical counselor, bringing these words to the lips of Dick Cheney, is also remarkable. Here are Lynne Cheney’s memorial remarks, reprinted by the American Enterprise Institute (again a powerful, explicitly reactionary Washington institution spreading these ideas), at which she and Bob and Walter Berns are or were all fellows:

“Bob didn’t advertise what he was doing and didn’t talk about it much in the years after, which was part of his essential modesty, part of what made him so admirable.”

“Dick [Cheney] remembers Bob from the Ford years, when he became a resident scholar at the White House. Bob had worked for Don Rumsfeld at NATO, and after Don became White House Chief of Staff, Bob organized a series of seminars for President Ford and the senior staff. He'd get together a small number of people, always including the president, and bring in a speaker to enlighten the group. Dick particularly remembers one Saturday when Bob put together a gathering up in the solarium on the top floor of the White House. The speaker that day was Daniel Patrick Moynihan, and he talked about his book Beyond the Melting Pot, in which he and Nathan Glazer wrote about the persistence of ethnicity in America and the consequences of it. Beyond the Melting Pot was a controversial book at the time. All these years later, we know it was very prescient.”

“Dick says that he does not recall in all his years in Washington events like the ones Bob organized. Bob didn’t advertise what he was doing and didn’t talk about it much in the years after, which was part of his essential modesty, part of what made him so admirable. We will miss him very much.” See here.

There is a chorus of neocons, loud during the Iraq War and now to advance an attack on Iran, on how Lincoln jailing Confederate sympathatizers and permitting them no trial – violating habeas corpus – and FDR putting Japanese –Americans in concentration camps "justify" Guantanamo and the theme of "executive power." Posner and Vermeule just give 6 examples, including these, and elaborate the core argument some. Now, Storing invokes the two original examples from Strauss’s colleague at Chicago , the constitutional lawyer C. Herman Pritchett (Strauss’s students had to write master’s theses with two professors and Pritchett was one of those who would work with them – h/t Gary Schmitt). These are American evils (harms to ordinary people, threats to democracy and the Constitution generated in wars abroad and/or class and political conflicts internally). They create a danger of authoritarian executive power, leading to endless war (listen to the neocons, particularly Romney, supported last week by John Bolton – the UN envoy of Bush who wanted to blow 10 floors, as he put it, off the UN building in New York) and relying on other neocon advisors, and Gingrich. They both would launch a US aggression against Iran (and would of course support a Netanyahu attempt to do this and subvert the American elections this fall).

Ron Paul is, in this major respect, as well as on civil liberties an increasingly important alternative both in the Republican Party and even to Obama. (His ideas on domestic economics are a disaster – would lead to a far deeper and longer depression - and reminiscent of unreconstructed Scrooge). But that Paul is treated in the corporate press as not quite a Republican and these positions often not covered is an example of how what is misleadingly called “conservative’ in corporate American politics is authoritarian – all the other “Republicans,” in fact, are Schmittian imperial authoritarians. They are joined by a considerable number of powerful Democrats are as well – critics of tyrannical measures when Bush enacted them but accomplices or silent when Obama extends or consolidates them. The National Defense Authrorization Act which gives Congressional license to the President to detain American citizens indefinitely is the purest example of Schmittianism - Fuehrer power - so far enacted...

This fundamental misnomer in the corporate press – that authoritarianism and the permanent war state (the war complex or militarism) – is somehow “conservative” is a leading feature of putting Americans to sleep about a steadily augmenting tyranny.****

America is, in fact, the lone empire in the world, with some 1,280 military bases abroad according to Nick Turse (its leading “competitor,” the French have 5 bases abroad in their own name in former French colonial Africa). This empire of bases (see also Chalmers Johnson, Sorrows of Empire, ch .6) is never mentioned in the press except at the SuperBowl, where the announcers last year happily welcomed the soldiers on bases in “177 countries” to watch the game…(Perhaps even that uncritical, "welcoming" gesture was too much; this year, the broadcast only flashed twice to soldiers at Camp Leatherneck in Afghanistan.)

The Democratic neo-neo-cons – the “experts” advising Obama - use drones in Pakistan because the government possesses them, because they can. See Greenwald today here. That these weapons kill civilians, nurture justified hatred for the American government, and endanger, in blowback, American citizens is obvious (imagine drones from Saudi-China, as I suggested here, careening down on Colorado and Montana). But without sufficient protest from below – though Occupy is very promising in reviving and strengthening it – the tendency in American oligarchic politics is a rightwing two step: the Democrats often adopt authoritarian and imperial policies in response to even further reactionary fanaticism from the right.

In contrast, in Spain, the Courts dealt with the bombers of the Atocha Station through the rule of law. Despite Obama and Holder’s initial attempts to do so, quavering Republicans and Democrats (and independents like Bloomberg in this respect), though mostly lawyers themselves, opposed the rule of law and demanded keeping “dangerous” prisoners in Guantanamo and trying them through Pentagon-dominated military commissions. See here. Unlike Madrid, the US government has become too weak to defend the rule of law, as if there are no prisons in the United States, no danger of terror in New York even if the government indefinitely detains and tortures prisoners in a black hole at Guatanamo...

It would be through proudly enacting and defending our differences with the terrorists, as a law-abiding and law-enforcing people, that America would minimize the threat of terrorism…

There are features in America which have made for reaction historically, and the notion that the 1/10 of 1% might protect themselves from the 99% by adopting fascism is not far. The Occupy movement, echoing Arab spring, might, as Pierce tells us, be met by arbitrary detention, something symbolized by but fiercer than the treatment of the camps in Oakland and Denver (Democratic Mayors) and New York (Bloomberg) or the tear-gassing of students sitting down in protest by the UC Davis police. Rahm Emanauel seems to be trying to develop this authoritarianism further in Chicago.

The stench of "the principles of the right" and of this network bringing Schmitt to the United States is in the tear gas in Oakland and at Davis just as it is in Cairo (every canister in all these places manufactured by the American company: Consolidated Systems Inc.)

Todd Pierce names himself a conservative for wanting to conserve American law. He movingly invokes his father as a prisoner of war during the Bataan Death-march in World War II to underline the importance of non-fascist treatment of prisoners. But of course one does not want to conserve unjust laws (i.e. slavery). It is thus the core of a conservative position to value the rule of law – particularly habeas corpus, that each person must have a day in court and not be subject to torture – against tyranny. In this respect, Andrew Sullivan and Scott Horton have helped lead the fight against the rise of tyranny in the United States, and I consider myself, as a radical (one who wants to expand the recognition of each human being and to give each of us an equal voice in the democracy (i.e. one not amplified by money or for the 99%, diminished by its absence),to have entirely and happily defended a conservative position on these matters. Peter Minowitz recently reduced my opposition to the war criminality of Condi Rice to “strident leftism” in his, nonetheless, serious article on Altman’s and my work on Strauss in Perspectives in Political Science.***** He concurs here with authoritarians and not conservatives. Calling for investigation of Ms. Rice and other Bush administration officials for the crime of mandating torture is a defense of the rule of law that unites all decent positions against tyranny and is a nonpartisan or moral position.

The alternate position is “fascist, authoritarian, imperial.” It has resulted increasingly in the open adoption of torture (what Obama, who had obviated certain major forms of torture, nonetheless did with Bradley Manning, and the Congress – part of a war complex – has done in keeping open Guantanamo). Once a police state has replaced the Constitution in the name of an emergency, it is very hard to climb back to the rule of law (Obama, a constitutional lawyer, took some major steps in this direction at the beginning of his administration, but has increasingly consolidated and developed further a criminal regime which as the Yale constitutional lawyer Jack Balkin says is now a new bipartisan “legal” regime. War criminals like John Yoo celebrate this deterioration, recognizing that it protects their torture and aggression.

Posner and Vermeule vary a theme by Peter Minowitz (Straussophobia) to speak airily of “Tyrannophobia” in a 2009 article here, which they abbreviate in this way:

“Tyrannophobia - the fear of dictatorship - is a dominant theme in American political discourse. Yet dictatorship has never existed in the United States or even been likely. The hypothesis that tyrannophobia itself has prevented dictatorship from occurring is implausible; better evidence exists for alternative hypotheses. We conclude that tyrannophobia is an irrational political attitude that has interfered with, and continues to interfere with, needed institutional reform.”

But serious lawyers like Todd Pierce fight against this regime because it has, increasingly, elements of a police state or tyranny. It is not the rule of law.

And without a strong movement from below against these powerful institutions, there is no guarantee at all that the rule of law will return.

The Guantánamo facility at 10: an assault on our constitutional government
Todd E. Pierce
The National Law Journal
January 10, 2012

The 10th anniversary of the opening of Guantánamo Bay, Cuba, as a detention facility and the diversion of terrorism prosecutions into a new military commission system is now upon us. Consequently, I thought I would take this opportunity to briefly explain why I, an Army Reserve Judge Advocate General officer with more than 30 years of active and reserve military service, would volunteer as defense counsel for prisoners being held there.

I might add that I consider myself to be a conservative. In the United States of America, that means to conserve the legal order that this nation was founded upon, the Constitution. In fact, as a member of the military, I took an oath to defend the Constitution against all enemies, foreign and domestic. I did not take an oath of allegiance to the "leader," or to the "state," as required in some other nations. Thus, it came as something of a shock to me when Alberto Gonzalez, John Yoo and Robert Delahunty began issuing legal opinions that the Geneva Conventions, a treaty incorporated into our law, were quaint and did not apply, or that the president could, at his or her sole discretion, suspend them.

I will admit a particular sensitivity to the enforcement of the Geneva Conventions as my father, along with thousands of other American and Philippine prisoners of war, survived the Bataan Death March. This was despite the best efforts of soldiers who set aside the Geneva Convention of 1929 because of their oath of allegiance to the Japanese emperor. Following that war, my father's former captors and their legal advisers were put on trial and convicted of war crimes, including waterboarding and punishing prisoners without fair trials, as required under the 1929 Geneva Convention. This treaty was replaced by the Four Geneva Conventions of 1949 due to the mistreatment of prisoners like my father.

Back in 2001 and 2002, when these legal opinions were being issued, astute critics immediately recognized that these opinions were regurgitated leftovers of President Richard Nixon's belief that if the president did something, it could not be illegal — the dictator's prerogative. But this crude anti-American notion had been refined into the "unitary executive theory." Vice President Richard Cheney seemed to take credit for it. But more astute commentators noted that these ideas were actually legal theories expounded by Carl Schmitt, the Nazi "Crown Jurist" of the 1930s. But that seemed a little extreme, or at least bad manners, to point out.

Once the unitary-executive theory began to gain credibility, other advocates of this form of government came out of the shadows, perhaps from "the dark side." One was Harvard Professor Harvey Mansfield in The Wall Street Journal in 2007, who opined about the benefits of "one man rule." But it remained to two law professors, dedicated to the study of arcane legal texts, Adrian Vermeule of Harvard Law School and Eric Posner of the University of Chicago Law School, to openly resurrect Schmitt's authoritarian legal ideology. Or, as they put it, "political theorists interested in emergency powers, and some academic lawyers as well, are much taken with Schmitt; nearly every discussion of emergencies pores over the canonical texts yet again."

In fairness to Vermeule and Posner, leaving them to pore over the Nazi's canonical texts, it should be remembered that Schmitt was not a founder of the Nazi movement. Schmitt only joined the Nazi party when it triumphed over its rival elements in the German military establishment. Schmitt had been legal adviser to those rivals, particularly General Kurt von Schleicher. But what should equally be remembered is that this military faction was seeking to impose its own brand of militaristic dictatorship on Germany, along with an expansionistic foreign policy. These German generals aspired to the form of governance most recently practiced by the dictator Hosni Mubarak and the Egyptian Supreme Council of the Armed Forces.

Schmitt's writings consistently were an apologia for dictatorship and centralized power, whether under military dictatorship of the German High Command or under the Nazis, having further developed his ideas from his book, Die Diktatur. These ideas culminated in 1934, when he justified the murders following the "Night of the Long Knives" as the "highest form of administrative law." Most odiously, he legitimated the authority of Hitler afterward with a paean translated in English as "The Leader Defends the Law."

In Terror in the Balance, Posner and Vermeule argued that the threat of terrorism constitutes a state of emergency necessitating the suspension of our Constitution. Consequently, "Constitutional rights should be relaxed so that the executive can move forcefully against the threat. If dissent weakens resolve, then dissent should be curtailed. If domestic security is at risk, then intrusive searches should be tolerated." Posner and Vermeule followed this in 2010 with The Executive Unbound: After the Madisonian Republic. Cribbed from Schmitt's Legality and Legitimacy, it seeks to legitimize the administrative state of the sort Schmitt worked to create. Any concern with this centralization of power in our system is dismissed as "tyrannophobia." Evidently, a mental disorder that our founders were afflicted with. As in Schmitt's "dual state," they seek to move us toward a constitutional breakdown through the creation of an administrative state under the exclusive control of the executive, "the Extraordinary Lawgiver" in Schmitt's terminology. Or as Posner and Vermeule ask and answer: "What comes after the Madisonian regime of liberal legalism and the separation of powers? Our answer is a new political order in which government is centered on the executive."

Why does all of this matter? In part, because constitutions and constitutional ideas matter. As evident in Yoo and Delahunty's legal memos asserting unitary executive authority, the legal theory underpinning Guantánamo and the military commissions were an assault upon the structure of our form of constitutional government; lawfare. It was not the inevitable conclusion required by the Sept. 11 attacks, but the exploitation of a tragedy to import a foreign legal ideology, a legal bacillus, into our legal system.

But it matters also because on this 10th anniversary, Guantánamo and the military commissions are metastasizing into our whole legal system. As the French war against the anti-colonialist insurgents of Algeria highlighted, the growing disrespect for "legal niceties" would come to be applied in France itself against political adversaries. Could that happen here? Posner and Vermeule suggest that dissent to policy may need to be controlled, that is, free speech curtailed. Putting aside the potential for misuse against political enemies, is that even desirable for national security? Our allowance of dissent led to our withdrawal from the Vietnam War before the collapse of our economy which, with hindsight, few question any more. Contrast that with the Soviet Union's defeat and total collapse resulting from its war in Afghanistan, purely at the insistence of the Communist leadership.

We have used the vague and overbroad charge of "material support for terrorism" as cause to investigate anti-war groups in Chicago and Minneapolis, predictably chilling speech and dissent. Critics have suggested that recent legislation passed would now require the military to detain such dissidents. Or what about gun store owners, gun manufacturers and the National Rifle Association, all of whom could be accused of having a hand directly or through propaganda in providing firearms downstream to drug cartels in Mexico, alleged to have ties with Mideast terrorist groups? Military detention for them?

We must ask ourselves, because we are passing this nation on to our children and their children: Were the authors of the American Constitution wrong or suffering from a mental disorder (tyrannophobia as described) in believing that blind faith was not sufficient as a bulwark against incompetence, if not tyranny? My father and my uncles, along with the rest of the Greatest Generation, did not think so when they fought against the political ideas of Carl Schmitt in World War II. I think Schmitt's ideas are still worth fighting against today.

Todd E. Pierce is a major in the U.S. Army and has been assigned to the Office of the Chief Defense Counsel since 2008. The views expressed are solely those of the author and do not reflect the official policy or position of the Department of Defense or the U.S. government.

ABA [American Bar Association]
February 2012 Issue

War Powers Belong to the President
Posted Feb 1, 2012 5:30 AM CST 
By John Yoo

In ordering the U.S. Air Force to attack Libyan targets on the ground and impose a no-fly zone in the air, President Barack Obama sent the U.S. military into combat without Congress’ blessing. This was not always President Obama’s view. Anti-war Democrats vigorously challenged President George W. Bush’s conduct of the wars in Afghanistan and Iraq by claiming that he had violated Congress’ right to declare war. As a presidential candidate in 2007, Obama once agreed: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

Fast-forward four years. In announcing the intervention in Libya, Mr. Obama told Congress that he was acting “pursuant to my constitutional authority to conduct U.S. foreign relations and as commander in chief and chief executive.” As the Libyan war reached its 60th day at the end of May 2011, President Obama sent a letter to Congress that reported on progress but did not seek any authorization.

This time, President Obama has the Constitution about right. His exercise of war powers rests firmly in the tradition of American foreign policy. Throughout our history, neither presidents nor Congresses have acted under the belief that the Constitution requires a declaration of war before the U.S. can conduct military hostilities abroad. We have used force abroad more than 100 times but declared war in only five cases: the War of 1812, the Mexican-American and Spanish-American wars, and World War I and II.

Without any congressional approval, presidents have sent forces to battle Indians, Barbary pirates and Russian revolutionaries; to fight North Korean and Chinese communists in Korea; to engineer regime changes in South and Central America; and to prevent human rights disasters in the Balkans. Other conflicts, such as the 1991 Persian Gulf war, the 2001 invasion of Afghanistan and the 2003 Iraq war, received legislative “authorization” but not declarations of war. The practice of presidential initiative, followed by congressional acquiescence, has spanned both Democratic and Republican administrations and reaches back from President Obama to Presidents Abraham Lincoln, Thomas Jefferson and George Washington.

Common sense does not support replacing the way our Constitution has worked in wartime with a radically different system that mimics the peacetime balance of powers between president and Congress. If the issue were the environment or Social Security, Congress would enact policy first and the president would faithfully implement it second. But the Constitution does not duplicate this system in war. Instead, our framers decided that the president would play the leading role in matters of national security.
Those in the pro-Congress camp call upon the anti-monarchical origins of the American Revolution for support. If the framers rebelled against King George III’s dictatorial powers, surely they would not give the president much authority. It is true that the revolutionaries rejected the royal prerogative, and they created weak executives at the state level. Americans have long turned a skeptical eye toward the growth of federal powers. But this may mislead some to resist the fundamental difference in the Constitution’s treatment of domestic and foreign affairs. For when the framers wrote the Constitution in 1787 they rejected these failed experiments and restored an independent, unified chief executive with its own powers in national security and foreign affairs.

The most important of the president’s powers are commander in chief and chief executive. As Alexander Hamilton wrote in Federalist 74, “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.” Presidents should conduct war, he wrote, because they could act with “decision, activity, secrecy and dispatch.” In perhaps his most famous words, Hamilton wrote: “Energy in the executive is a leading character in the definition of good government. ... It is essential to the protection of the community against foreign attacks.”

The framers realized the obvious. Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to regulation by pre-existing legislation. Instead, they can demand swift, decisive action—sometimes under pressured or even emergency circumstances—that is best carried out by a branch of government that does not suffer from multiple vetoes or is delayed by disagreements. Congress is too large and unwieldy to take the swift and decisive action required in wartime. Our framers replaced the Articles of Confederation, which had failed in the management of foreign relations because they had no single executive, with the Constitution’s single president for precisely this reason. Even when it has access to the same intelligence as the executive branch, Congress’ loose, decentralized structure would paralyze American policy while foreign threats grow.

Congress has no political incentive to mount and see through its own wartime policy. Members of Congress, who are interested in keeping their seats at the next election, do not want to take stands on controversial issues where the future is uncertain. They will avoid like the plague any vote that will anger large segments of the electorate. They prefer that the president take the political risks and be held accountable for failure.

Congress’ track record when it has opposed presidential leadership has not been a happy one. Perhaps the most telling example was the Senate’s rejection of the Treaty of Versailles at the end of World War I. Congress’ isolationist urge kept the United States out of Europe at a time when democracies fell and fascism grew in their place. Even as Europe and Asia plunged into war,

Congress passed the Neutrality Acts designed to keep the United States out of the conflict. President Franklin Roosevelt violated those laws to help the Allies and draw the nation into war against the Axis. While pro-Congress critics worry about a president’s foreign adventurism, the real threat to our national security may come from inaction and isolationism.

Many point to the Vietnam War as an example of the faults of the “imperial presidency.” Vietnam, however, could not have continued without the consistent support of Congress in raising a large military and paying for hostilities. And Vietnam ushered in a period of congressional dominance that witnessed American setbacks in the Cold War and the passage of the ineffectual War Powers Resolution. Congress passed the resolution in 1973 over President Richard Nixon’s veto, and no president, Republican or Democrat, George W. Bush or Obama, has ever accepted the constitutionality of its 60-day limit on the use of troops abroad. No federal court has ever upheld the resolution. Even Congress has never enforced it.

Despite the record of practice and the Constitution’s institutional design, critics nevertheless argue for a radical remaking of the American way of war. They typically base their claim on Article I, Section 8, of the Constitution, which gives Congress the power to “declare war.” But these observers read the 18th century constitutional text through a modern lens by interpreting “declare war” to mean “start war.” When the Constitution was written, however, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain—where the framers got the idea of the declare-war power—fought numerous major conflicts but declared war only once beforehand.

Our Constitution sets out specific procedures for passing laws, appointing officers and making treaties. There are none for waging war because the framers expected the president and Congress to struggle over war through the national political process. In fact, other parts of the Constitution, properly read, support this reading. Article I, Section 10, for example, declares that the states shall not “engage” in war “without the consent of Congress” unless “actually invaded, or in such imminent danger as will not admit of delay.” This provision creates exactly the limits desired by anti-war critics, complete with an exception for self-defense. If the framers had wanted to require congressional permission before the president could wage war, they simply could have repeated this provision and applied it to the executive.

Presidents, of course, do not have complete freedom to take the nation to war. Congress has ample powers to control presidential policy, if it wants to. Only Congress can raise the military, which gives it the power to block, delay or modify war plans. Before 1945, for example, the United States had such a small peacetime military that presidents who started a war would have to go hat in hand to Congress to build an army to fight it. Since World War II, it has been Congress that has authorized and funded our large standing military, one primarily designed to conduct offensive, not defensive, operations (as we learned all too tragically on 9/11) and to swiftly project power worldwide. If Congress wanted to discourage presidential initiative in war, it could build a smaller, less offensive-minded military.

Congress’ check on the presidency lies not just in the long-term raising of the military. It can also block any immediate armed conflict through the power of the purse. If Congress feels it has been misled in authorizing war, or it disagrees with the president’s decisions, all it need do is cut off funds, either all at once or gradually. It can reduce the size of the military, shrink or eliminate units, or freeze supplies. Using the power of the purse does not even require affirmative congressional action. Congress can just sit on its hands and refuse to pass a law funding the latest presidential adventure, and the war will end quickly. Even the Kosovo war, which lasted little more than two months and involved no ground troops, required special funding legislation.

The framers expected Congress’ power of the purse to serve as the primary check on presidential war. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for failing to limit executive militarism. James Madison responded: “The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.” Congress ended America’s involvement in Vietnam by cutting off all funds for the war.

Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress’ funding power. If a president continues to wage war without congressional authorization, as in Libya, Kosovo or Korea, it is only because Congress has chosen not to exercise its easy check. We should not confuse a desire to escape political responsibility for a defect in the Constitution.

A radical change in the system for making war might appease critics of presidential power. But it could also seriously threaten American national security. In order to forestall another 9/11 attack, or to take advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch needs flexibility. It is not hard to think of situations where congressional consent cannot be obtained in time to act. Time for congressional deliberation, which leads only to passivity and isolation and not smarter decisions, will come at the price of speed and secrecy.

The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security. Presidents can take the initiative and Congress can use its funding power to check them. Instead of demanding a legalistic process to begin war, the framers left war to politics. As we confront the new challenges of terrorism, rogue nations and WMD proliferation, now is not the time to introduce sweeping, untested changes in the way we make war.

Only Congress Can Declare War
Posted Feb 1, 2012 5:20 AM CST
By Louis Fisher

John Yoo and I agree that the framers rejected the British system of royal prerogative. In his Commentaries, William Blackstone placed all of foreign policy and the war power with the executive. Clearly the framers repudiated that model, which is obvious simply by looking at the text of the U.S. Constitution. Not a single one of Blackstone’s prerogatives—declaring war, making treaties, issuing letters of marque and reprisal, appointing ambassadors, raising and regulating fleets and armies, etc.—is vested in the president. They are either given expressly to Congress in Article I or are shared between the president and the Senate (treaties and appointments).

Where John and I differ is the scope accorded to the president over the war power. John says that “our framers decided that the president would play the leading role in matters of national security” and that the war in Libya, initiated by President Barack Obama, “rests firmly in the tradition of American foreign policy.” The record shows, however, that all major wars from 1789 to 1950 were either authorized or declared by Congress. No president during that period believed that he could unilaterally take the country from a state of peace to a state of war. It was necessary to come to Congress to seek prior approval.

Just as Truman had no authority for substituting the Security Council for Congress, so did President Obama violate the Constitution by arguing that he could obtain “authorization” from a Security Council resolution to use military force against Libya. Obama often says it is his duty to defend the country. His first duty—as reflected in the oath of office placed in Article II—is to “preserve, protect and defend the Constitution of the United States.”

Federal courts understood that principle as well. In Talbot v. Seeman (1801), Chief Justice John Marshall wrote: “The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry.” It might be argued that when the delegates at the Philadelphia Convention changed the constitutional text from “make war” to “declare war,” they limited Congress to declaring war and allowed the president to make war. That was never the understanding. The framers simply acknowledged that the president needed to “repel sudden attacks” without waiting for prior congressional authority, especially when Congress was not in session. That was a defensive, not an offensive, power. The latter judgment remained with Congress.

The fact that Congress retained authority to both declare and make war (i.e., initiate war) is clearly expressed in court rulings. A circuit court in United States v. Smith (1806) rejected the idea that a president or his assistants could unilaterally authorize military adventures against foreign governments. The court put the matter bluntly: “Does [the president] possess the power of making war? That power is exclusively vested in Congress.” If a nation invaded the United States, the president would have an obligation to resist with force. But there was a “manifest distinction” between going to war with a nation at peace and responding to an actual invasion: “In the former case, it is the exclusive province of Congress to change a state of peace into a state of war.”

It is frequently argued that the Supreme Court in the Prize Cases (1863) recognized a broad war power for the president. It did not. As with the Smith case, Justice Grier carefully limited the president’s power to defensive actions, in this case a civil war. The president “has no power to initiate or declare a war against either a foreign nation or a domestic state.” During oral argument, the attorney for the administration, Richard Henry Dana Jr., agreed that the actions of President Abraham Lincoln had nothing to do with “the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.”

This understanding prevailed for 160 years, from 1789 to 1950. As John notes, presidents during that period used “force abroad more than 100 times” without a declaration or authorization from Congress. But those actions, however noteworthy, did not constitute major wars. What happened in 1950 to change this constitutional pattern? Of course it was President Harry Truman unilaterally taking the country to war against North Korea. At no time did he come to Congress, as with all presidents in the past, to seek a declaration or authorization. If Congress did not authorize this war, who did? Truman claimed that two resolutions passed by the U.N. Security Council provided sufficient authority.

Here I think John and I would agree on a vital point. It is constitutionally impermissible for the president and the Senate through the treaty process to take power from future Senates and from the House of Representatives and give it to an outside body. In other words, the president and the Senate, in agreeing to the U.N. Charter, could not amend the Constitution by placing with the Security Council war powers that had rested with Congress. That is essentially the argument presented by Truman and his secretary of state, Dean Acheson. It is a shallow and empty argument. Here I would not hesitate to fault Congress for accepting that rationale and failing to protect its institutional powers. The framers expected each branch to fight off encroachments. Congress decided it was more important to fight Communism than defend the Constitution.

There were no reasons to do so. The fundamental duty of lawmakers, as reflected in their oath of office, is to support and defend the Constitution at all times. They take that obligation “freely, without any mental reservation or purpose of evasion.” There was no justification for violating the Constitution because fighting North Korea had a higher value. For more than a century and a half, lawmakers had balanced the Constitution and war powers without sacrificing one for the other.

Just as Truman had no authority for substituting the Security Council for Congress, so did President Obama violate the Constitution by arguing that he could obtain “authorization” from a Security Council resolution to use military force against Libya. Obama often says it is his duty to defend the country. His first duty—as reflected in the oath of office placed in Article II—is to “preserve, protect and defend the Constitution of the United States.” The duty of defending the country is the duty to repel attacks on the country and its forces. Libya did not attack or threaten the United States. Obama acted not in a defensive manner but offensively against another country. Any president who takes the country from a state of peace to a state of war without obtaining prior authority from Congress is creating an impeachable act. Were the president impeached by the House and removed by the Senate, the signal would be healthy and welcome for constitutional government.

John points to some qualities that the president possesses and Congress does not. He recalls what Alexander Hamilton said about unity, decisiveness, secrecy and energy residing in the president, not in the legislative branch. Generally true. John says that Congress “is too large and unwieldy to take the swift and decisive action required in wartime.” The institutional advantage here clearly rests with the president. But the framers did not give their blessing to presidential decisiveness and speed of action. They knew all too well the record of executive wars in the past, which devastated nations and left them poorer. John Jay in Federalist 4 warned that “nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it,” but for purposes merely personal, such as an executive’s thirst for military glory, revenge for personal affronts and ambition. Those and other motivations lead executives “to engage in wars not sanctified by justice or the voice and interests of his people.” Because of those costs, the framers insisted that going to war be done by legislative deliberation and support.

Did the framers have a narrow, 18th century vision that has no application to America and contemporary conditions? It would be hard to make that argument after the presidential wars that followed World War II, including Korea, Vietnam and the Iraq war that began in March 2003. Korea morphed from a limited effort to protect the division between the North and the South, but changed once U.S. forces decided to go into North Korea and provoke the Chinese to enter. The result was a war that did substantial damage to the United States and certainly to the presidency of Truman. Vietnam was a great calamity, fueled in large part by the claim that a “second attack” occurred in the Gulf of Tonkin to justify U.S. retaliation. There were doubts at the time that the second attack happened. We now know that there was no second attack, but merely late signals coming from the first. The decision to go to war against Iraq in 2003 rested on a number of claims that proved false: aluminum tubes used for making nuclear weapons, “yellowcake” obtained from a nation in North Africa, mobile labs capable of carrying biological agents, drones able to deliver chemical and biological agents, etc. In every case those assertions by the Bush administration were vacuous. The record of presidents using deception and stealth to go to war would not surprise the framers. They should not surprise us.

John states that “Congress’ track record when it has opposed presidential leadership has not been a happy one.” There is some truth to that. I would not, however, fault the Senate for rejecting the Treaty of Versailles. The problem was the rigidity of President Woodrow Wilson in opposing the Lodge reservations. Wilson’s advisers urged acceptance of the reservations, but Wilson preferred to let personal animosities prevail over the treaty.

John is on stronger ground in criticizing the neutrality policy of Congress during the 1930s when fascism was sweeping Europe. Congress does not have a happy track record, but neither do many of our presidents. I would also say that Congress has done great damage to the nation and constitutional government by acquiescing to presidential wars on the mistaken belief that presidents invariably act in the “national interest” and are surrounded by officials with reliable expertise and judgment. That is a fanciful view not supported by the record. Finally, John points out that Congress possesses the power of the purse to stop wars begun by presidents. I think we all know that the spending tool is difficult to invoke when U.S. soldiers are in combat. It took nearly a decade to cut off funds for the Vietnam War.

Louis Fisher is Scholar in Residence at the Constitution Project. Previously he worked for four decades at the Library of Congress as Senior Specialist in Separation of Powers (Congressional Research Service, from 1970 to 2006) and Specialist in Constitutional Law (the Law Library, from 2006 to 2010. During his service with CRS he was research director of the House Iran-Contra Committee in 1987, writing major sections of the final report.

ChicagoTalks
Guantanamo Comes to Main Street?
January 31, 2012 By Jay Becker

Do you remember where you were as the clock approached midnight on the last night of 2011? President Obama was signing the National Defense Authorization Act (NDAA), which has been described by a leading legal commentator as an “historic assault on American liberty.”

The new law gives the president and the military the right to detain anyone – including US citizens – anywhere – including within the US – and hold them indefinitely without charges, based on allegations of vaguely defined terrorist activity or “substantial support” for it that will not be tested in a court of law.

At least one local group characterizes it as “Guantanamo Comes to Main Street.” The Chicago chapter of World Can’t Wait (WCW) is one of dozens of groups who sponsored a rally in Chicago on the tenth anniversary of Guantanamo detention centers this January. WCW worked with Amnesty International, Witness against Torture, White Rose and many others to mobilize a “human chain” of people in orange jumpsuits stretching from Congress to the White House.

Len Goodman, Chicago criminal defense attorney who represents Shawali Khan, a Guantanamo detainee, spoke at the Chicago rally.

“Of all the promises made by candidate Barack Obama, it was his promise to end the lawlessness of the Bush years by closing Guantanamo, ending torture and restoring the United States’ reputation for justice that got me out in the streets and knocking on doors. And it is President Obama’s failure to keep these promises that makes it impossible for me to support him again,” said Goodman.

Chicago has its own legacy of torture, and on the day following the rally, the Chicago City Council held hearings on declaring Chicago a torture-free city. A few cases of Chicago police torture have been resolved, but activists like Mark Clements, a death penalty abolition activist and himself a survivor of Chicago police torture, are working to get the city to promise that torture never again occurs within the boundaries of Chicago.

Joe Scarry, an activist who writes a blog on anti-war and civil liberties issues, criticized the city’s participation in what he sees as a systemic threat to civil liberties: “A perfect storm is brewing: leading activists have been threatened in recent years with grand jury subpoenas; now, organizers of all stripes here in Chicago are up in arms about Mayor Emanuel’s draconian restrictions on freedom of expression; at the same time, with the signing into law of NDAA, people around the country are waking up to the civil liberties threat they live under in Obama’s U.S.A. People are mad as hell — a lot of people! It’s not just the usual suspects anymore.”

In the eyes of these groups, closing Guantanamo has become the cutting edge in a widening battle to defend not only human rights and the right to dissent, but the rule of law itself.

Related articles

Indefinite detention and torture: US already enforcing NDAA (rt.com)
Ex-Commander of Guantanamo Prison: ‘Close It’ | Common Dreams (2012indyinfo.com)
Center for Constitutional Rights Demands that President Obama Close Guantánamo (alethonews.wordpress.com)

*Jack Goldsmith, a reactionary lawyer who became head of the Office of Legal Counsel under Bush, withdrew Yoo’s memos because they have no legal standing…See Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration and Jane Mayer, The Dark Side.

**I interviewed Gary Schmitt for two hours when he came to my school. He was a serious scholar who published 6 or 7 articles, was hired at Connecticut with Storing, but was let go after Storing died suddenly of a heart attack. He then joined the intelligence "community."

***Will Altman cites ways in which Strauss thinks of himself as filling out an Hegelian dialectic. And he rightly emphasizes Hegel's statism - his insistence that war and sea-faring peoples who are good at war cures the stagnancy of civil society, a theme which Nietzsche, Strauss and Schmitt embroider. Hegel, it should be noted, however, did not confront modern wars. In addition, Altman also takes the form of Hegel for the substance, and particularly ignores the remarkable emphasis on the three moments of the free will, the last of which, the self-conscious moment, refuses to accept any arrangement which does not involve the mutual recognition of the freedom of each individual. Hegel goes on in the Philosophy of Right, read carefully, to say that any measures, i.e popular uprisings, taken against slavery or German serfdom, are right. The latter point foreshadowed the Revolution of 1848.

****As James Madison indicted John Adams's Alien and Sedition Acts:

"Exhortations to disregard domestic usurpation until foreign danger shall have passed, is an artifice which may be forever used, because the possessors of power, who are the advocates of its extension, can ever create national embarassments to be successively employed to soothe the people to sleep, whilst that power is swelling silently, secretly, and fatally. Of the same
are insinuations of a foreign influence, which seize upon a laudable enthusiasm against dangers from abroad and distort it by an unnatural application so as to blind your eyes to danger at home"

See the epigraph of my Must Global Politics Constrain Democracy?

*****Peter points to some irrational or at the least unscholarly opposition to Strauss as “Straussophobia.” But this is also a floating and not very precise criterion often used to dismiss or ignore argument (the first chapter of his book, uniting opposite criticisms or charges, is called “All hate Leo Strauss”). Interestingly Posner and Vermeule, as Pierce shatteringly points out, refer to objections to throwing out the rule of law - as in the case of the Japanese treatment of his father as a prisoner of war on Bataan - as “tyrannophobia.” But the US government was not wrong in prosecuting the Tokyo War Criminals. As then Nuremberg prosecutor and later Supreme Court Justice, Robert L. Jackson said, the US government would also apply these standards to itself; in later cases, he expected, it would honor the rule of law, for instance, by having hearings over torture and Guantanamo and prosecuting those responsible here. The government is, of course, legally obligated to do so under the Convention against Torture and Article 6 section 2, the Supremacy Clause, of the Constitution.

Poem: Aqua ri u m 2

2012-02-05T07:34:00.000-08:00

Palma

thesmilingcurl y headedma n

whofeedsthefishes

childrenstare

inmultiwindows

un natural

inthetank

raisedhishead

natural

intotheteeth

calm

ofahammerhead

AND S CREA M

couldnotletgo

drag gedoutofwater

hel me t

ful loft ee t h

The Unknown Chinese Revolution: the Sie Center, the defeat of Japanese imperialism and Xu Beihong

2012-02-03T17:32:00.000-08:00

The Denver Art museum just finished an exhibit of Chinese textiles from its permanent collection and Xu Beihong, a fabulous modern painter of horses (so the advertising notes), from China. As his wife relates in a film on him, Xu had planned to come to the United States in December, 1941, but Pearl Harbor intervened. Denver was the first and only American city to which Beihong's works came.

The connection is museum trustee John Sie; he also contributed money for the Sie Cheou-kang building at the Josef Korbel School of International Studies, named for his father, a friend of Xu’s. But here an important story unfolds in the exhibit itself, one accompanying the bursting out of a republic in China in 1911 led by Sun Yat-sen, his replacement by the dictator Chiang Kai-shek, Chiang's extermination of workers in Shanghai by having them burned – as Communists – in the railway engines in 1927, the beginning of peasant revolution led by Mao and the Communist party in the long march of the early 1930s, the ferocious Japanese fascist invasion of China, starting in 1937, and the overpowering effect of likely conquest on artists as well as others. Sie Cheou-kang is pictured in one of Xu Beihong’s paintings, Tian-heng and his 500 warriors - standing near the artist himself among the soldiers resisting oppression (there is also a separate portrait of Sie).

The horses – there are 6 powerful, restless, alive, endangered ones – measure, the artist says, speaking also of himself, the resistance of the Chinese people to Japanese aggression.

At Harvard as a graduate student, I intended briefly to go into Chinese studies. I started intensive Chinese late and took a vacuous seminar on Chinese government. The professor charted the offices of the Chinese government – the form on the blackboard still stares blankly at me in memory, but hardly a word from the many items – perhaps The People’s Consultative Conference – glimmers now. Nobody read Mao (it was sad; Benjamin Schwartz gave some lectures, trying a bit, but the lack of empathy for ordinary Chinese – a sort of opposite of Xu Beihong – compromised even his work).

I had read Chalmers Johnson’s Peasant Nationalism in Communist China, a book written while Johnson was a U.S. government agent, who still scorned the resistance in Vietnam and the American student movement. He later regretted his suffocating arrogance – see the introduction to Blowback. But he always looked down on the Chinese peasants, and at the time, sided with Chiang Kai-shek (perhaps he later regretted that, too).

And yet he alone revealed a startling fact about the revolution to me. Mao’s strategy was to organize a guerilla movement which would “swim in the sea of the people.” The Japanese aggressors decided to “drain the water.” In three provinces in North China in the winter of 1940-41, Johnson reported, they murdered 20 million people. It is worth stopping at the figure, taking it in…

The invasion was genocidal – but I have not seen it reported, let alone thought about, in the US corporate/governmental mainstream (I include much scholarship on China which has been influenced by the war complex) aside from Johnson’s book. This was, after all, the same era in which the US firebombed Japanese wooden cities, killing perhaps 10 million innocent civilians (see Errol Morris’s The Fog of War interviewing Robert McNamara who says, in grim self-recognition, that had he and Curtis Lemay lost, they would have been tried as war criminals. Unlike Lemay, McNamara was plainly deeply troubled about this. That film is the one place where I learned of this mass killing).

And the U.S. dropped the atom bombs on Hiroshima (killing some 20,000 enslaved Koreans in addition to 60,000 Japanese civilians in the blast and more in the long, radioactive aftermath) and Nagasaki.

And locked Japanese-Americans in concentration camps…

There are dark reasons why American China education was then and is to this day amazingly censored and silly….

Xu had met Sie Cheou-kang when the latter was a student in France. As John Sie related amusingly at the fancy dedication of the center (where Bob Coombe, the Chancellor ably spoke, and Mayor Hickenlooper looked, dazedly but enthusiastically, on), as a student in France, Sie Cheou-kang supported Chinese agricultural workers on strike. Probably Xu did, too. Sie Cheou-kang was active in the early communist movement in China, a friend of Chou En-lai. He went to a conference of the communist international, but did not advance much in the party. He eventually became Chiang K'ai-shek's ambassador to the Pope between 1942-45.

John Sie would come to America, and make a fortune. But he is plainly bonded to his father’s experience in China and happy enough to have the story told afresh. He was instrumental in bringing Xu’s work – a stunning advance in Chinese art and something much more – to this international stage (Xu is widely admired elsewhere, including in Europe, but not of course in the United States where the curtain of anti-communist or anti-radical ideology and racism veils most of what happened).

Perhaps the best piece in the exhibit is an austere drawing of Gandhi – his face deep in thought - from a visit Xu paid to India in 1940, He went to Santiniketan and also painted Rabindranath Tagore – a much more “finished” (see the commentary below), but less interesting portrait. Gandhi’s spirit shines through (I have never seen another representation of Gandhi with near this power).

Xu combines the externality of French painting – of the impressionists and to some extent, Manet’s portraits which have some inwardness – with a Chinese or Taoist sense of the person within. Xu renews and strengthens this power. The cliché often said about his work combining Chinese style with Western techniques, hardly touches this.

The show, including two interesting films, interprets Shu’s significance as venturing into modern art as a Chinese artist (as even some Chinese commentators also say). Xu was sent to the West after the Revolution of 1911 by Sun Yat Sen and subsisted, often without money, in Paris, for several years. The review below of an exhibit in Singapore suggests that an exhausted, weak horse of 1941 is Xu the student in Paris; this is a remarkable disregard of the actually setting of the revolutionary war against Japan where, indeed, there were moments of faintness and suffering...

The portraits and the representations of animals - horses and eagles (representing Chinese planes, the few, flying against Japan) - combine Shu’s sense of the inner meaning of the historical situation, his and his countrymen’s and women’s worry about conquest as well as exultation in victories, and the spirit of the animals. It is stunning work.

Ho Chi Minh, my student Rich Rockwell tells me (Rich was a Vietnamese orphan flown out of Saigon in 1975 on a plane among some 300 babies that survived; the other, also carrying 300 babies, crashed and burned) admired Gandhi, too. Among those who resisted imperialism/colonialism in Asia, being for nonviolence and being a Communist were often not separable (my friend Haider Khan’s father was a close friend of Badshah Khan, leader of the nonviolent Gandhian resistance in the Northwest territories among Pathans, and also a communist).

Xu also depicted “The Foolish Old Man who Moved the Mountain” in front of his house. He got laborers, painted in their straining and power, physically, to move it because otherwise his children and grandchildren would have to. The painting interprets a thought of Mao about the need for the Chinese people "foolishly" to defeat the depraved onslaught of Japanese fascism.

When the Communists came to power, Xu painted a wonderful portrait of Lu Hsun, the great novelist who also became a Communist (I had known of Lu Hsun before), and a stunning portrait of Mao, unfortunately a preliminary to a larger painting of Mao as a leader of the people (not as good a painting, it seemed to me, from a photo). A sign invoked Mao's thought that there is a difference between art, including art that is political, and political slogans that purport to be art.

If one wants to understand the point, one might look at Xu’s work…

Xu was the head of the post-Revolution Art Academy in Beijing (today fabulously lively, for about 5,000 students). He died in 1953. There is a photograph of Chou En-lai with others at the memorial exhibition. In the cultural revolution, there were many attacks on the old culture (the other part of the exhibit, the tapestries, shows the immense beauty of Manchu weaving, and the utter odiousness of how beautiful tigers, butterflies and kingfishers can be integrated into the hierarchy of imperial offices . One point of the cultural revolution, however bizarre and destructive many of its manifestations, was to challenge the idea that ordinary Chinese people couldn’t remake the world, had no possibility of voice or political power...

There is, of course, the long history of peasant rebellions from below at the end of dynasties of which Mao was a student - it is the subject of Chinese novels including the Water Margin or All Men are Brothers - and on which he based his distinctive strategy (see "An Investigation into the Peasant Movement in Hunan" - 1926). The glittering hierarchy, projected more majestically and ferociously perhaps even than those in Europe, had often fallen…

In the Chinese revolution itself, arguably the greatest popular revolution of the twentieth century, against Japanese genocide and American predation, the Chinese people did find many voices (Xu’s paintings are one of them).

The people rose up even more successfully, arguably, than the Indians who achieved independence under Gandhi. For India under the Congress Party has been predatory of the poor (read Arundhati Roy’s The God of Small Things for a sense). In contrast, with enormous energy, the Chinese took up a new life.

But many of Mao’s ideas, before and subsequent to the Revolution, were not helpful, and in the famine accompanying the Great Leap Forward, horrifying. The West preys on the latter (ignoring its own crimes) not to notice the achievements.

Today, as Erica Chenoweth, my new colleague reveals, most movements for social change are strikingly nonviolent, for instance, from Arab spring to the Spanish indignados. The hope of the world, as I have often indicated, is in the persistence and radicalization of such movements (the means can be connected with social transformation). In contrast, violence by itself – aside from legitimizing vast reactionary government terror to some extent and producing trauma in the violent (see Barbara Deming’s discussion in "Revolution and Equilibrium" of Franz Fanon’s own evidence about an Algerian revolutionary who blew up a racist cafe, killing 10, went to France, met many who sympathized with the Algerians, wondered if some of the people he had killed were like these, and began to experience severe vertigo at each anniversary) - guarantees exactly nothing, as the great internal struggles in China after the Revolution show, about how to produce a genuinely cooperative and free regime.

In the cultural revolution, Chou En-lai was called upon to protect Xu’s paintings. He did.

Even now, the state of American academia and culture about China is roughly what might expect to accompany the sheer predation of American capitalism over the last 30 years. With cutbacks, the Denver Post barely employs an art columnist. I found no column on this exhibit; there was, however, a decent one from the California Literary Review. which, at least in a paragraph, notices the powerful influence of resistance to Japanese aggression.

And Obama would know of Gandhi. But in a major exhibition in Denver – the only American city lucky enough to see this exhibit, the influence of John Sie breaking through the curtain of silence and bigotry about the Chinese revolution and Chinese artists – there is no newspaper review and thus, no mention of the Revolution or of Gandhi.

I knew of Lu Hsun. But until I saw this exhibit and learned of John Sie’s father’s friend, the great painter of the Revolution, Xu Beihong, I had known nothing of him. It would be like knowing nothing, as a non-European, of Picasso...

I am grateful to John Sie for his loyalty to the experience of the Chinese people and his father, his interest in cultivating relations with China which have some trace of sophistication, his instrumentality in the Denver Art Museum in putting together, with Beijing, an exhibit which far exceeded the insight of the exhibitors (it is great to see the Chinese tapestries, which are really important creations, artistically, and in the Denver Museum’s own collection - perhaps, it seemed to the museum, a balance to the revolution's fierceness - i.e., democracy - in the 20th century...

But the curation from China, often remarking what Xu’s own characters or calligraphy on the paintings said - a natural thing to do but not often done in American or Western exhibits of Chinese art - did give a sense of the importance of Xu’s work which had escaped those who packaged and publicized the show.

I was blown away by it. Had this show not been about to close, I would have alerted my colleagues and students to come see it (the Sie center did some work around this). But I can at least say something about it after the fact.

Under Obama, the US is interested in connecting with Asia, combatting China (this is a fool’s errand, and he and American militarism may stimulate a self-destructive arms race that did not have to be - see Amitai Etzioni here. Conquering American racism and anti-radical or anti-communist ideology about the Chinese revolution, and actually seeing the greatness of this movement, as well as of the movement led by Gandhi in India – abandoning the optic of imperialism and colonialism and taking up a more humane vision - might be part of moving towards peace with the now very different China and some better and more cooperative world (a world in which humanity survives, a big problem given climate change, the tar sands – see here – and an American militarism/war complex, along with Israel, now baying for aggression against Iran). John Sie has made a real and important contribution to this in Denver.

It is thus an honor not only to teach at a school named for my friend Josef Korbel – see here – but one which has a Sie Cheou-kang center on security which works on U.S.-China relations and foreign policy. Both liked American democracy and both recognized that at least some reality is necessary in dealing with the history of American imperialism.

Before I heard John Sie speak and before I saw this exhibit, the sense that his father was a diplomat during World War II was not illuminated and deepened by the wild political and artistic history of Chinese resistance against colonialism and fascism.

Xu’s paintings are revelatory of this history. The horses of the Chinese people are great and have trepidation and power and resistance. The Chinese movement is famous for its internationalism toward the Soviet revolution – and the struggle against the Nazis in World War II. But internationalism in Asia – the idea of coming decently into the modern world for all those oppressed people who fought against colonial and fascist aggressors - took many paths. Xu’s portrait of Gandhi has a simplicity and inner power, which also embodies hope.

*My friend Steve Thomas at the University of Colorado at Denver is a great student of Chinese history. He is writing a book which captures the issue of Western imperialism toward China – the tributary system – in the late 19th century. British merchants and the government brought opium to China – through the opium wars they waged - and were death-dealing profiteers. And then came America...

American historians and political scientists have not been interested, so far, in Steve’s essays and proposals about this matter. But it tells a lot, as he has informed me, about Chinese attitudes toward Western investment today (keeping control to prevent being dominated by it) and banking (they have no speculative system in China, a main reason why they were not caught up in the American collapse of the world economy in 2008).

The story here is of a wonderful Chinese painter, one whose name should be known internationally and who wanted to come to America (Ho Chi Minh liked the Declaration of Independence, but American imperialism, first in its aid to French militarism and then in the Vietnam war, belied the Declaration). Perhaps Xu had more confidence (though of course one would have to think about American aid to Chiang Kai-shek who never fought the Japanese aggressors, turned his fire entirely on the peasant revolt…).

There is much here to be excavated…

California Literary Review
Art Review: Two Chinese Exhibitions at the Denver Art Museum
By Holly Hunt
January 3rd, 2012 at 10:01 am
See here for the original article which reproduces a number of paintings. Sadly, this program does not allow me to reproduce them.

Xu Beihong, Six Galloping Horses, 1942
Ink on paper, hanging scroll.
The Xu Beihong Memorial Museum

New Worlds, Old Worlds

This winter, the Denver Art Museum has mounted a pair of exhibitions evoking China before and after the revolutions of the twentieth century. Though radically different in contents and approach, when viewed side by side, “Xu Beihong: Pioneer of Modern Chinese Painting” and “Threads of Heaven: Silken Legacy of China’s Last Dynasty” offer a fascinating perspective on cultural upheaval and transformation. While painter Xu Beihong — whose patriotic imagery of the new China would find favor with none other than Mao Tse Tung — was studying art in Paris, collector Charlotte Hill Grant was buying up court robes and ceremonial accessories from impoverished Manchu aristocrats. The fruits of these two very different journeys are now on display.

XU BEIHONG: PIONEER OF MODERN CHINESE PAINTING.

There’s no questioning the iconic position that the works of Xu Beihong holds in the modern Chinese consciousness. A relief carving in granite of his painting of The Foolish Old Man Who Removed the Mountains, an ancient Chinese fable immortalized in a speech by Mao Tse Tung, adorns the lobby of the new Chinese National Museum in Beijing. Reproductions of his bold ink paintings of horses have been issued as postage stamps. Video in the exhibition shows Chinese schoolchildren reading aloud from a biography of the artist that appears in their textbook. This, the first major exhibition of his work outside of China, drew the eager attention of the Chinese media when it opened.

Yet the first surprise of “Xu Beihong: Pioneer of Modern Chinese Painting” is that all the works on display are, in fact, by the same artist. The careful drawings in chalk and charcoal of European nudes, of plaster casts of Hercules and the Venus de Milo, the rich colors and swirling brushwork of studies in oil from Allegory of Fertility by Jacob Jordaens, the Rokeby Venus of Velasquez, and a painting of Salomé by French painter Aimé Morot, clearly represent the young Xu Beihong’s years of study in Europe, which began in 1919, when the young artist received a government scholarship for study at the Ecole Nationale Supériore des Beaux-Arts. The inscription in Chinese on one of the nude sketches poignantly details the breakdown from cold and hunger of the artist’s health while an art student in Paris (Xu Beihong would die of a stroke in 1953, at the age of 58).

Xu Beihong, Study of a Male Nude, 1924
Drawing on paper
The Xu Beihong Memorial Museum

Chinese subject matter receives an even greater diversity of handling. Sound of the Flute, painted in 1926, a year before Xu Beihong returned in China, has an Impressionistic or even Barbizon-like delicacy in the atmospheric handling of the landscape. An undated early drawing, Qin Qiang Sells His Horse, uses Western perspective while hinting at the subject matter of his most famous later works. Chinese landscapes in oil from the thirties and forties, such as Landscape of Jiaoshanfrom a Bird’s Eye View and The Courtyard of the Temple of Jizushan have a faint air of post-Impressionists such as Cezanne. Yet there are also bold black-and-white ink paintings of traditional Chinese vistas of mountains and rivers, such as Spring Rain on Lijiang River, painted in 1937, between the two oils. And contemporary with these are scroll paintings of flowers and birds such as Willow Branches and Sparrows of 1938, combining a calligraphic lightness of touch with exquisite detail.

Xu Beihong, Sound of the Flute, 1926
Oil on canvas
The Xu Beihong Memorial Museum

Portraits in oil of the artist’s two wives seem very much in the Western style of the time, despite the occasional Chinese elements in their settings. Yet sketches of such notables as Gandhi and poet Rabindranath Tagore, who Xu Beihong encountered while travelling in India near the outbreak of World War II, do seem to blend Asian and European aesthetics in a new way. The ink and watercolor sketch of Tagore, showing the robed and bearded poet seated before a green tangle of vegetation, deeply evocative of classical Chinese painting, is especially memorable, whereas the portrait of Mao Tse Tung, in charcoal and ink wash, is perhaps too iconic to strike the eye as fresh. (Thanks to Mao’s patronage, Xu Beihong’s work was tucked away safely in the Forbidden City during the ravages of the Cultural Revolution).

Xu Beihong, Portrait of the Artist’s Wife, 1947
Oil on canvas.
The Xu Beihong Memorial Museum

Then there are the large-scale works that sealed Xu Beihong’s reputation as a nationalist artist of the first rank: the vast watercolor scroll painting of The Foolish Old Man Who Removed the Mountains (1940), an equally monumental oil of Tian Heng and His Five Hundred Warriors (1928-1930), (depicting a famous last stand by a military leader of the Warring States period). These last two had, for me, an oddly Pre-Raphaelite air, perhaps because of the way they combine unabashed storytelling with naturalistic observation, an almost photographic clarity of detail and (in the case of Tian Heng) a palette that emphasizes primary colors. Many of the figures in Tian Heng are in fact portraits from life – the artist himself appears, as does his wife, and his friend Sie Cheou-Kang, father of DAM trustee (and major supporter of this exhibition) John Sie.

Xu Beihong, Tian Heng and His Five Hundred Warriors, 1928-1930
Oil on canvas
The Xu Beihong Memorial Museum.

Finally, there are the powerful ink paintings of lions, eagles, and galloping horses, naturalistic yet also deeply symbolic, produced and embraced as images of the Chinese national spirit in the dark days of the Japanese invasion and its aftermath. The energy and power of these are undeniable, and the intensely human expressions in the animals’ eyes clearly show that they are meant to serve as far more than studies of nature. Yet, looking at these scrolls in relation to the other works on display, it is a little hard to say where this work came from. Undoubtedly, Xu Beihong’s artistic response to World War II would have been different had his artistic background been different, but the spontaneity and intensity of these works seems quite different from the careful evocation of past styles that characterizes most of the exhibit.

Yet perhaps the very multiplicity of approaches in Xu Beihong’s art is part of what endeared him to his fellow citizens. This ability to take on board initially alien styles and techniques helped make him a major figure in the establishment of modern art education in China. He made western techniques – and the western artistic heritage – available to Chinese artists, while maintaining a different vision of the artist’s role in society. Westerners have long tended to view artists as privileged madmen whose oracular productions require interpretation and whose lives are best understood as either fantasies of escapism or cautionary tales (imagine schoolchildren being presented with Picasso or Gauguin or Jackson Pollock — or Caravaggio or Michaelangelo – as models of citizenship). In contrast, Xu Beihong — and his viewing public – seem to have valued a clarity of intention and a high-minded sense of purpose almost as remote from our experience as the Rokeby Venus once was from the the experience of the Chinese.

THREADS OF HEAVEN: SILKEN LEGACY OF CHINA’S LAST DYNASTY.

Threads of Heaven plunges the viewer into the world the revolutions of the twentieth century swept utterly away – the world of elaborate ceremonial and sybaritic luxury that was the court of the Qing Dynasty. This was a world in which the color of the glass finial on one’s hat indicated with precision one’s rank at court; in which the bird or animal embroidered in silk and gold thread on a silken badge indicated a civil or military official’s place in the hierarchy. (Degrees of civil officialdom were represented by birds such as cranes or pheasants, while military rank was indicated by fiercer animals, such as tigers, leopards, lions, and the legendary quilin.)

Crane rank badge, 1st rank civil servant, silk embroidery on silk.
China, Qing Dynasty, late 19th – early 20th century.
Denver Art Museum, Neusteter Textile Collection: Gift of James P. Grant & Betty Grant Austin.

Only members of the Imperial family could wear the Imperial yellow, and only those of the highest rank could have five-clawed dragons on their robes: if the garment was to be passed on to someone of lesser rank, a claw must be unpicked from the fabric. An embroidered design of peonies, magnolias, and crabapple blossom on the border of a woman’s robe would be understood as a complex visual pun that conveyed the message “May your noble house be blessed with wealth and honor.”

Rank badge: Dragon insignia roundel, silk and gold thread embroidery on silk.
China, Qing Dynasty, second half 19th century.
Denver Art Museum, Neusteter Textile Collection: Gift of Mrs. Carroll B. Malone

The pelts of rare Amur leopards might line a winter robe; a summer undergarment of fine silk mesh kept the wearer a bit cooler, while protecting the outer robe from perspiration stains. The Eurasian kingfisher was hunted to extinction in China so its dense and shimmering turquoise feathers could be inlaid like enamel in jewelry, and in the lavish headdresses of Manchu brides. Painfully tiny satin slippers for bound feet, and jeweled guards, many inches long, for fingernails that were never cut indicate their wearer’s remoteness from the world of physical labor, or even ordinary exertion. Yet the distinctive shape of long Manchu “horseshoe sleeves”, ending in points that shielded the wearer’s hands, and the manner in which the front closings allowed for movement, harkened back to the Manchus’ origins as warriors on horseback on the remote frontier of the Chinese empire.

Looking at these beautiful objects, it is hard not to think of other self-enclosed courtly worlds, such as ancien regime Versailles. No wonder aristocrats of the Rococo made such a cult of chinoiserie and of other Asian objets (the Empress Maria Theresa gave her daughter Marie Antoinette several pieces of beautiful Japanese lacquerwork). The intricacies of rank and etiquette, the ritual and spectacle of court life, evoke Byzantium, or Mervyn Peake’s fictional world of Gormenghast.

The occasional fading of the silken threads, which gives the embroidery on some garments the otherworldly hues of seashells or of gardens seen in moonlight, adds its own strange beauty to some of these garments. But the reds and purples have remained bright (the red of one winter robe seems to glow from within). Coral-hued peaches and peonies still glow against the deep turquoise silk of a woman’s jacket; the foxes and squirrels darting through the foliage embroidered on its sleeve-bands still carry their message of good fortune, even if the garment’s final owner may have seen undreamt of reversals of fortune.

As mentioned above, many of these garments were collected by Charlotte Hill Grant, wife of a doctor charged with establishing a department of public health at Peking Union Medical College in the 1920s; by then, the poverty-stricken former courtiers of Beijing were desperate to sell any remaining relics of their former lives. Grant’s contacts included a former lady-in-waiting to the dowager empress, who provided Grant with insight into the lost world of the court, allowing the collector to preserve something of the garments’ context and meaning. Viewed at the end of a tumultuous 2011, alongside Xu Beihong’s images of a radically transformed China, they are a haunting reminder of how even a seemingly permanent world may be turned upside down.

***
Xu Beihong: Pioneer of Modern Chinese Painting, on view through January 29, 2012, Denver Art Museum
Threads of Heaven: Silken Legacy of China’s Last Dynasty, on view through January 29, 2012, Denver Art Museum

New York Times
Xu Beihong: A Chinese master of styles that straddle East and West
By Sonia Kolesnikov-Jessop
Published: Friday, April 11, 2008

SINGAPORE — Xu Beihong is widely recognized as the father of modern Chinese painting, both for his innovative ink works that did much to revitalize the traditional Chinese form and for his willingness to embrace Western techniques, particularly French Realism.

And he was a patriot. Xu helped to bolster Chinese morale during the Second Sino-Japanese War, subtly working anti-Japanese themes into paintings done during those years, especially between 1939 and '41, when he was the height of his career and traveling throughout Southeast Asia and India hosting well-received shows. (He sent money raised through those shows back to support war-relief efforts.)

"Xu had an immense influence on the development of Chinese painting in the 20th century because he championed an expansive realism that included Romanticism and Expressionism," said Kwok Kian Chow, the director of the Singapore Art Museum, where an exhibition showcasing more than 90 of Xu's works opened this month. His style, Kwok said, was "predicated on the ocular world as opposed to the literati tradition of text."

The exhibition, "Xu Beihong in Nanyang," runs through July 13.

Born in Yixing, Jiangsu Province, in 1895, Xu grew up in an artistic family and showed talent at an early age. In 1915, he went to study in Shanghai, then a melting pot of Chinese and Western cultures. There he met the scholar and political reformer Kang Youwei, who would become his mentor and would greatly influence his thinking about the need to integrate Western practices and ideas into Chinese art.

"He felt that Chinese art had degenerated into pure copying of other paintings and was divorced from real life. This resulted in artists who did not see the need to learn from nature," said Chow Yian Ping, one of the curators of the show. "Xu was not the first to formulate the idea, but he was one of the first to offer a solution and a direction."

He came up with the idea of applying Western scientific methods, using very precise anatomical proportions and introducing a fixed-point perspective in his work, Chow said. Xu "combined them very freely with either freehand ink painting or the more formal style," she said.

In 1919, Xu traveled to Paris on a scholarship from the Chinese government. He shunned the burgeoning experimental art scene of the Surrealists and Expressionists, and instead embraced Realism.

"He felt painting should be real and should be understood by people," Chow said, "which is why he remained very much grounded in Realism throughout his life."

After returning to China in 1927, Xu co-founded and taught at the then South China Art Academy in Shanghai. He would hold a number of important posts, such as chairman for the Central Academy of Fine Arts and chairman of the National Artists' Association of China, ensuring him prestige and influence within China until his death in 1953.

In late 1939, Rabindranath Tagore, the Nobel laureate poet, writer and philosopher who, at the time, was president of the Sino-Indian Cultural Society, invited the artist to hold exhibitions and give talks in India. Through Tagore, Xu met Mahatma Gandhi, whose sketched portrait is included in the exhibition.

During his stay in India, Xu completed several works considered to be masterpieces, such as "Portrait of Rabindranath Tagore" (1940), in ink and color on paper, which is innovative because of its attention to details and the lack of white space left on the paper.

Another is "The Foolish Old Man Who Removed the Mountains" (1940), a 4.2-meter-wide, or almost 18-foot-wide, ink painting based on the Chinese legend of a man who persisted in trying to move a mountain that was in his way, arguing that if he did not finish the task his children, and then his grandchildren, would eventually have to do so. "This work is quite significant," Chow said. "It was his way to encourage the Chinese people in the anti-Japanese efforts, encouraging them to persist in the face of adversity."

Another important painting, "Put Down Your Whip" (1939), which Xu painted in Singapore after having witnessed the staging of a patriotic street drama about a father and his daughter in wartime exile, also illustrates his passion and patriotism. (As with many of the paintings in the show, "Put Down Your Whip" comes from a private collection. It was sold last year at auction for a record 72 million Hong Kong dollars, or about $9.25 million.)

Chow points out that many of Xu's paintings of animals carried very personal emotions, which are often explained in Chinese calligraphy set to the side. The ink and color "Lion and Snake" (1938) is a direct reference to the war between China and Japan, and a galloping horse full of energy and freedom expresses the way the painter felt after China won a particular battle.

"Xu is very well known for his horses and his ability to express his feeling through this animal," Chow said. She gave as example the painting "Sick Horse," (1941) in which the horse's tail is drooping and its head hanging down, as if in defeat. "The work is very much about himself," Chow said, "and the way he felt as a poor, lonely student in need of help when he was in Paris."

Are American war crimes above the law?

2012-02-01T12:52:00.000-08:00

Sam Morison, a Department of Defense lawyer for prisoners in Guantanamo, sent the following letter about the violation of the rule of law there. Big Brother monitors the phone conversations (the only ones allowed) between lawyers and the prisoners in violation of the principle of lawyer-client confidentiality. Further, the Pentagon acts covertly to prevent the New York bar ethics committee from asserting this principle (one might also imagine that the lawyer in question is simply a sycophant – see here and here).

Marjorie Cohn of the ACLU also states what is at issue in the Haditha massacre mainly of women and children below. Here, too, we see American “justice” – there is only denial of aggression, occupation and even these hideous crimes – at work. No punishment…

The American government, without trials, however, often provides arbitrary punishments - in Guantanamo, Bagram and Abu Ghraib, 100 died in American custody by Pentagon statistics, many were tortured, all were indefinitely detained, none accorded rights. Since the Bush-Cheney era, “law” in the United States appears to be a misnomer. And Obama has added to this: murder far from the battlefield of American citizens without any judicial proceeding, and when rarely acknowledged, only with the assertion that “evidence” exists by a public relations flack…

Jennifer Robinson, a lawyer for Julian Assange, ran into Eric Holder and Dr. Sharon Malone, his wife, at a showing of a documentary Slavery by Another Name about the horrors of continued enslavement, poor blacks forced to work as convict labor for large companies in the post-Civil War South, at the Sundance film festival (my 16 year old was at the festival, too, with his school, though not at this documentary). Breathing while being black in the South was of course until (and often since) the civil rights movement a crime.

In the film, Malone spoke of an uncle born 30 years after slavery and yet himself enslaved through the prison system. Holder, who I suspect is a decent man doing often very bad things (a bit like Obama), responded to her first genuinely - of course, they agreed about the movie; his wife had named the moral issues. Then, realizing who she was, he moved abruptly into official capacity. The bureaucratic iron mask was needed. For one might add to Assange and the issue of American torture the system of mass incarceration today – 2.3 million prisoners - 25% of the world's prisoners - 5.1 million on probation, many black teenagers as well as Chicanos and poor whites denied any possibility of a achieving a decent life, unable to vote or live in public housing or gain employment, because of “possession” of marijuana- over which Holder currently presides (see Michelle Alexander, The New Jim Crow, and , here, here and here).

Here the split in many official personalities – visible in how many civil servants in the Bush era could no longer stand it, quit and spoke the truth – and perhaps in Holder himself, imposed by working for a government that carries out crimes against innocents, comes to the fore.

The shift in tone, Robinson reports, is chilling…

As Sam suggests, the chasm between decency and American war criminalty inspires both surface amusement – did even MASH get to this? - sadness - is this, at last, America? - and outrage.

“Alan,

I thought you would find this post at Simple Justice blog (http://blog.simplejustice.us/) interesting and amusing. The public should bear this in mind the next time Gen. Mark Martins, the new chief prosecutor at DoD, issues yet another press release or speech extolling the virtues of the "reformed" military commissions over which he presides. On paper, they look reasonable; in practice, it's still a joke.

Best, Sam”

NYSBA to Gitmo Defense: We Don't Care
The Department of Defense lawyers who are charged with defending the enemies of our nation sit in an office in Virginia, where the talk on telephones provided by the DoD and type their papers and emails on computers provided by the DoD. Just to be sure, the DoD thought it best to have each of them sign off on a consent form that since the government owns all that stuff, the DoD has the authority to monitor it. Every last bit.

It sounded a little screwy to the defense lawyers, since it flies against every ethical precept of client confidentiality they had ever learned. Not that anyone was necessarily surprised about it, the government preferring to know more rather than less, but these are lawyers, even if they get a DoD paycheck and work on DoD computers.

The directive from the Convening Authority for the Office of Military Commissions to the Office of Chief Defense Counsel came in August, 2010. Figuring this might be a bit of a problem, and completely unwilling to sell their clients out, one of the lawyers who was admitted to practice in New York sought an ethics opinion from the New York State Bar Association on the demand.

There was no doubt that they had a firm grasp of their ethical obligation to keep their clients' privileged communications confidential from the DoD, but it would prove enormously useful to have an official ethics opinion that said so, something to roll up and smack the guy from the Convening Authority in the face.

So on September 1, 2010, the request was sent to the New York State Bar Association for an ethics opinion. Bearing in mind that the DoD lawyers defending the Gitmo detainees have no independent ethical overseer, and look to their bar of admission for their ethical determinations. They are admitted in one state, situated in another and, as here, representing detainees at tribunals on a military base in Cuba. Cuba, unfortunately, offers little on the ethical proscription front, but then, its law doesn't apply at Guantánamo anyway.

Notably, unlike some other states, New York ethical discipline is handled by a disciplinary committee under the auspices of each of the four Appellate Divisions of the state. The NYSBA is a voluntary association, rather than the controlling association for all lawyers, and one of the services it provides is ethics opinions upon request. The opinions aren't binding, but provide guidance and some persuasive authority. More importantly, by seeking and adhering to an NYSBA ethics opinion, one can demonstrate good faith reliance that will serve to vitiate any subsequent claim on deliberate unethical conduct.

So while it's not the final word, it matters and helps. And the DoD lawyers really needed some help staring down the government on behalf of their enemy combatant clients, who may be the only group in America without a Facebook fan page.

A few weeks later, a draft opinion arrives as a "head's up" on the final, setting forth in painful detail everything the DoD lawyers believed to be true, that they could not allow the government unfettered access to their clients' confidences. Duh. Just hold on a bit longer, brother, and the cavalry would arrive. The official opinion was on its way, with few if any changes, concluding that they may enjoy the government's largesse, but were still lawyers obliged to protect their clients. Not quite a stretch as ethics opinions go.

A few weeks went by. Then a few months. Silence. Tumbleweeds blew down Broadway in Manhattan, and the DoD lawyers began scratching their heads, wondering whether the government intercepted the opinion in the mail. No such luck. About March 14, 2011, the very official NYSBA opinion arrived.

We conclude that we lack jurisdiction to resolve your question because the New York Rules of Professional Conduct (the ''New York Rules") do not apply to the situation you describe. The jurisdiction of this committee is limited to questions arising under the New York Rules. The committee is charged with interpreting the New York Rules by answering questions of professional conduct that are governed by these rules. In your case, the threshold choice of law question is whether your conduct is governed by the confidentiality provision of the New York Rules (i.e., Rule 1.6), or by the confidentiality provision of some other jurisdiction — e.g., those of the state in which your office is physically located or the rules, if any, adopted by the military commissions before which you practice. Unless the confidentiality provision of the New York Rules applies to your work, this committee lacks jurisdiction to provide you an answer.

They lack "jurisdiction"? They have no jurisdiction. Over anyone. Anywhere. Ever. This is an NGO, a voluntary association where a bunch of guys who raise their hand when somebody asks, "anybody want to be on the ethics committee?"

The informal response, "not a formal opinion," was signed by Roy Simon, Hofstra Law School's Howard Lichtenstein Distinguished Professor of Legal Ethic and chair of the committee. He went emeritus in September 2011. According to his CV:
Member (1995-present) and Immediate Past Chair (2008-2011) of the New York State Bar Association Committee on Professional Responsibility. This Committee responds to ethics inquiries from attorneys regarding the New York Rules of Professional Conduct, and the Committee comments on proposals affecting regulation of lawyers.

Or fails to respond to ethics inquiries when they're too busy cowering in the corner. Maybe he forget that part.

The unanswered question is whether between the time of the draft opinion and the ultimate display of worthlessness embodied by the "informal response," someone, oh say from the DoD or some other jumble of initials using government computers, "reached" the committee to convince them to keep their nose out of government business?

Or whether the committee, perhaps its chair, decided that it wasn't good for them to become embroiled in the thorny question of how a New York lawyer should ethically address a government demand for wholesale access to his client's confidences. After all, it's one thing for the lawyers whose butts are on the line in the defense of enemy combatants to bear the risk of ethics, but why would anyone who joined a bar association committee in New York want to take a risk pissing off the government?

Despite the manifest failure of the NYSBA ethics committee to show the slightest interest in ethics or fortitude, defense lawyers have persisted in their refusal to consent to the government's monitoring of their work, and the Chief Defense Counsel concluded that the DoD demands violated fundamental ethical proscriptions and directed all defense lawyers to refuse.
While the lawyers in the service of the military have demonstrated the guts to stand firm on their ethical responsibilities to their clients, the contrast between their position and the utter failure of the NYSBA ethics committee couldn't be more clear, and more of a disgrace. How nice that a bunch of self-important bar association guys get to pad their resumes with their committee assignments, while punting at the first sight of risk.

The NYSBA's "informal opinion" on ethics is to run away from their responsibility if there is any chance it might be controversial. Not the underlying ethical issue, about which there was nothing controversial at all, and it was about as clear and easy as any ethical question could be. Rather, upsetting the powerful government is a risk that bar association players aren't willing to take. Sorry, Gitmo defense lawyers, but your ethics just aren't worth the risk.

Tuesday, January 31, 2012 by Common Dreams
The Haditha Massacre: No Justice for Iraqis
by Marjorie Cohn

They ranged from little babies to adult males and females.  I'll never be able to get that out of my head. I can still smell the blood. This left something in my head and heart. -Lance Cpl. Roel Ryan Briones

Last week, Staff Sgt. Frank Wuterich was sentenced to a reduction in rank but no jail time for leading his squad in a rampage known as “The Haditha Massacre.” Wuterich, who was charged with nine counts of manslaughter, pled guilty to dereliction of duty. Six other Marines have had their charges dismissed and another was acquitted for his part in the massacre.

What was the Haditha Massacre? On November 19, 2005, US Marines from Kilo Company, Third Battalion, First Marine Division killed 24 unarmed civilians in Haditha, Iraq, execution-style, in a three to five hour rampage. One victim was a 76-year-old amputee in a wheelchair holding a Koran. A mother and child bent over as if in prayer were also among the fallen. "I pretended that I was dead when my brother's body fell on me and he was bleeding like a faucet," said Safa Younis Salim, a 13-year-old girl who survived by faking her death. Other victims included six children ranging in age from 1 to 14. Citing doctors at Haditha’s hospital, The Washington Post reported, "Most of the shots ... were fired at such close range that they went through the bodies of the family members and plowed into walls or the floor."

The executions of 24 unarmed civilians were apparent retaliation for the death of Lance Cpl. Miguel Terrazas when a small Marine convoy hit a roadside bomb earlier that day. A statement issued by a US Marine Corps spokesman the next day claimed: "A US Marine and 15 civilians were killed yesterday from the blast of a roadside bomb in Haditha. Immediately following the bombing, gunmen attacked the convoy with small-arms fire. Iraqi army soldiers and Marines returned fire, killing eight insurgents and wounding another." A subsequent Marine version of the events said the victims were killed inadvertently in a running gun battle with insurgents.

Both of these stories were false, and the Marines knew it. They were blatant attempts to cover up the atrocity, disguised as "collateral damage." Congressman John Murtha, a former Marine, was briefed on the Haditha investigation by Marine Corps Commandant Michael Hagee. Murtha said, "The reports I have from the highest level: No firing at all. No interaction. No military action at all in this particular incident. It was an explosive device, which killed a Marine. From then on, it was purely shooting people." Marine Corps officials told Murtha that troops shot a woman "in cold blood" as she was bending over her child begging for mercy. Women and children were in their nightclothes when they were killed.

The Haditha Massacre did not become public until Time magazine ran a story in March 2006. Time had turned over the results of its investigation, including a videotape, to the US military in January. Only then did the military launch an investigation. These Marines "suffered a total breakdown in morality and leadership, with tragic results," a US official told the Los Angeles Times. Murtha said, "Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood." Many of our troops suffer from post-traumatic stress disorder, or PTSD. Lance Cpl. Roel Ryan Briones, a Marine in Kilo Company, did not participate in The Haditha Massacre. T.J. Terrazas was his best friend. Briones, who was 20 years old at the time, saw Terrazas after he was killed. "He had a giant hole in his chin. His eyes were rolled back up in his skull," Briones said of his buddy. "A lot of people were mad," Briones said. "Everyone had just a [terrible] feeling about what had happened to T.J."

After the massacre, Briones was ordered to take photographs of the victims and help carry their bodies out of their homes. He is still haunted by what he had to do that day. Briones picked up a young girl who was shot in the head. "I held her out like this," he said, extending his arms, "but her head was bobbing up and down and the insides fell on my legs." "I used to be one of those Marines who said that post-traumatic stress is a bunch of bull," said Briones, who has gotten into serious trouble since he returned home. "But all this stuff that keeps going through my head is eating me up. I need immediate help."

Murtha told ABC there was "no question" the US military tried to "cover up" the Haditha incident, which Murtha called "worse than Abu Ghraib." His high-level briefings indicated to him that the cover-up went “right up the chain of command." The Bush administration set rules of engagement that resulted in the willful killing and indiscriminate slaughter of civilians. In particular, U.S. troops in Iraq operated in "free-fire zones," with orders to shoot everything that moves. Attacks in civilian areas resulted in massive civilian casualties, which the Bush administration casually called "collateral damage."

Like other grave breaches of the Geneva Conventions, these acts of summary execution and willful killing are punishable under the US War Crimes Act. Commanders have a responsibility to make sure civilians are not indiscriminately harmed and that prisoners are not summarily executed. Because rules of engagement are set at the top of the command chain, criminal liability extends beyond the perpetrator under the doctrine of command responsibility. George W. Bush, Dick Cheney, and Donald Rumsfeld should be charged with war crimes.

A few days after the story of The Haditha Massacre became public, US forces killed eleven civilians after rounding them up in a room in a house in Ishaqi near Balad, Iraq, handcuffing and shooting them. The victims ranged from a 75-year-old woman to a six-month-old child, and included three-year-olds and five-year-olds and three other women as well. A report by the US military found no wrongdoing by the US soldiers.

Allegations that US troops have engaged in summary executions and willful killing in Iraq have also emerged from other Iraqi cities, including Qaim, Abu Ghraib, Taal Al Jal, Mukaradeeb, Mahmudiya, Hamdaniyah, Samarra, and Salahuddin. There are similar accusations stemming from incidents in Afghanistan as well.

Many people in Iraq are outraged as the legal books close on The Haditha Massacre. They are also perturbed at the US drones flying over Iraqi skies in Baghdad to protect the largest US embassy in the world that, even after the United States “pulled out” of Iraq, still houses 11,000 Americans protected by 5,000 mercenaries. “Our sky is our sky, not the U.S.A.’s sky,” Adnan al-Asadi, acting Iraqi interior minister, said. The US military left Iraq because the Iraqis refused to grant US soldiers immunity for crimes like those at The Haditha Massacre.

The 24 Haditha victims are buried in a cemetery called Martyrs' Graveyard. Graffiti on the deserted house of one of the families reads, "Democracy assassinated the family that was here."

Marjorie Cohn, a professor at Thomas Jefferson School of Law and past President of the National Lawyers Guild, is the deputy secretary general for external communications of the International Association of Democratic Lawyers, and the U.S. representative to the executive committee of the American Association of Jurists. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd). Her anthology, The United States and Torture: Interrogation, Incarceration and Abuse, is now available. Her articles are archived at www.marjoriecohn.com

When a WikiLeaks lawyer runs into Eric Holder
During a chance encounter at Sundance, I pressed the attorney general about his plans for Assange -- and his legacy
BY JENNIFER ROBINSON

“Slavery by Another Name,” a documentary based on the 2009 Pulitzer Prize-winning book by Douglas Blackmon, premiered this year at the Sundance Film Festival. The story was new to me: Between the Emancipation Proclamation and the beginning of World War II, tens of thousands of African-Americans were arrested on phony charges, slapped with massive fines they could not pay, and then sold into labor to some of the biggest industries in the country to work off their debt. I didn’t expect to learn that slavery essentially continued for decades after the Civil War. And I also didn’t expect – on vacation from my legal work advising WikiLeaks and Julian Assange — to bump into Attorney General Eric Holder. Having spent the week before Christmas at Fort Meade, Md., attending the Pvt. Bradley Manning hearing – Manning is charged with passing classified material to WikiLeaks — I knew what I had to ask him.

As the last of the audience settled into their seats, the woman in front of me turned and took photos of people behind me. It was subtle, but others looked their way and smiled, nodding in acknowledgment. Not subtle enough. I turned too. I noticed a smiling, handsome African-American couple two rows back. On many occasions, I’ve been asked in interviews to respond to Holder’s public statements about the U.S. government’s criminal investigation into Assange and WikiLeaks. But there he was, in person, just steps away. I could not pass up this opportunity.

In November 2010, Holder announced a full criminal investigation into WikiLeaks, aimed at prosecuting Assange over the release of thousands of cables that embarrassed the U.S. government by revealing candid discussions among diplomats and corruption and human rights abuse around the world. Since that time, we learned of a secret grand jury investigation in Virginia. WikiLeaks supporters’ Twitter accounts have been subpoenaed. Media reports have long speculated about Assange’s imminent indictment in the U.S., possibly under the Espionage Act. (Assange is currently under house arrest in the U.K. pending his appeal of a decision that he be extradited to Sweden to face sexual assault charges.) A key concern is the threat of onward extradition from Sweden to the U.S. where Assange – based on Holder’s earlier announcements – risks being prosecuted for his work as editor and publisher of WikiLeaks, activity that we believe is protected by the First Amendment.

Holder has refrained from making public comments about WikiLeaks of late, leading many to believe the U.S. might not prosecute Assange. But it was apparent during the Manning hearing that concerns about the U.S. seeking Assange’s extradition are justified. Repeated references were made to the relationship between the Manning proceedings and the Justice Department’s ongoing criminal investigation into Assange and WikiLeaks. Manning’s defense counsel stated explicitly that the Justice Department had an interest in plea-bargaining with Manning in order to get him to implicate Assange, and argued that the number of charges against Manning (particularly those carrying life imprisonment) was designed to pressure him into making a deal. Government officials seated behind the prosecution were suspected of involvement in the grand jury process, but refused to identify themselves to us or to journalists. One was later identified as the Justice Department lawyer responsible for the WikiLeaks-related Twitter subpoenas.

The grand jury is secret. Government lawyers at the Manning proceedings – a public hearing – refused to identify themselves or state their interest. Our appeals to military courts for full access to the Manning proceedings, the court documents and the evidence have been denied. The Australian government claims to have no information from the U.S. as to whether they will prosecute Assange and seek his extradition, but it does not appear to have asked for that information or sought any diplomatic assurances from the U.K., Sweden or the U.S. that Assange be able to travel home to Australia after the Sweden case is resolved.

WikiLeaks, the world’s most famous/infamous source of information, and its lawyers are, ironically, short on necessary information. Who better to ask for that information than the attorney general himself?

As the lights dimmed and the film began, I wondered: How could I speak to Eric Holder?

Soon, however, I was overwhelmed by Pollard’s compelling film. Casting a light on the murky period between the end of the Civil War and the beginning of the modern civil rights movement, the film documents how the practices of convict labor rendered the 13th Amendment’s protections meaningless for millions of African-Americans living in the South.

These facts come alive through Pollard’s interviews with the ancestors of African-Americans who suffered during this period, emphasizing how these practices are part of living memory. Among them is Dr. Sharon Malone, the attorney general’s wife. She speaks eloquently about her uncle, who was born nearly 30 years after slavery ostensibly ended, but was one of the thousands pulled back into the forced labor system. Her testimony is powerful, and makes clear that every Southerner’s life is touched by this history, whether black or white.

What struck me most watching the film was the shameful inaction of the federal government and, specifically, the Justice Department, in failing to prosecute those responsible or taking action to end these practices, which continued for more than 80 years after the supposed abolition of slavery. While considering the historical legacy of that shameful inaction, I began to think about Eric Holder’s legacy — and the irony of his support for a film about the need to look back in order to look forward. After all, the film laments government inaction on slavery at the turn of the century. Today we lament Holder’s inaction on torture.

Holder insists on looking “forward, not back” when it comes to accountability for torture, dropping all cases of alleged illegal treatment of post-9/11 detainees by the CIA and its contractors. (Interesting that Holder, the same man advocating a forward-looking approach, said in 2010 that if the Justice Department could not identify a law under which to prosecute Assange, they would create one.)

While CIA torturers receive immunity from prosecution, Holder just announced that the Justice Department has charged a former CIA agent, John Kiriakou, for allegedly disclosing information to journalists about a CIA agent who engaged in waterboarding during interrogations.

Holder does not prosecute U.S. torturers; he prosecutes those who speak out about U.S. torture. Will Julian Assange be next?

“Slavery by Another Name” received a standing ovation from the Sundance audience, and deservedly so. As the crowd filed out, I made my way over to Eric Holder. A young woman requested a photo with him, and I was asked by one of his Secret Service detail to take it. I did as requested.

Then I took the opportunity to ask the attorney general a few questions.

“Mr. Holder, I just wanted to say how powerful I thought your wife’s contribution was to the film and how great it is to see you here, as attorney general, supporting it.” My praise was genuine.

“Thank you, I am a very lucky man,” he responded, warmly and sincerely. I agreed.

I then explained that what struck me about the movie was the government’s unwillingness to take action. “What came through most for me was this sense of historical legacy.” I said. “As attorney general, do you ever think about how your time in office will be remembered?”

“Of course,” he replied, adding he is very conscious of the historical legacy he’s creating.

“That’s interesting,” I responded, “because I am a lawyer for WikiLeaks and Julian Assange.” Slightly taken aback, a flicker of recognition crossed his face. “How do you think history will reflect upon your treatment of WikiLeaks and Assange?”

The young woman who requested the photo gasped audibly, whispering, “Whoa, this is major,” to the person next to her. Others gathered closer to listen.

“Eric” instantly becomes Holder, and responds in the professional manner of a politician. “The release of confidential information is a very serious matter, and we have to draw the line somewhere.” As he spoke, I recalled a conversation at the Manning hearing in December with a senior national security reporter who admitted he felt the news media would be at risk if Assange were prosecuted. One wonders where Holder’s line will be drawn — and what it will mean for journalism globally.

Holder continued to emphasize the grave harm he believes the leaked cables caused to U.S. national interests and “even to countries that [Assange] would likely support,” but that he “cannot get into the detail of the harm caused.” These blanket but unspecified allegations about harm allegedly caused by WikiLeaks’ publications (and those by the New York Times, the Guardian, Der Spiegel, Le Monde, El Pais and numerous other newspapers worldwide) have been common in U.S. government statements.

“Then will the Department of Justice state publicly whether or not you intend to prosecute Julian?” I asked.

Holder’s answer was short as he walked away: “We will see.”

Jennifer Robinson is a London-based media and human rights lawyer who advises Julian Assange and WikiLeaks. Follow her on twitter @suigenerisjen

Saving the land: indigenous resistance to the Enbridge Gateway Pipeline

2012-01-30T06:43:00.000-08:00

Warner Naziel and Freda Hudson two members of the Wet'suwet'en tribe in British Columbia, came to Auraria last Thursday to speak about the Keystone XL Pipeline, temporarily stopped by Obama but still a threat to cut across the United States, and an equally great threat, the Enbridge Northern Gateway pipeline in Canada. Before, though I support the campaign, I had not heard of the latter...

Above a table of food, there were twinned photographs of the pristine wilderness, the mountains soaring above the Athabasca River, and the wreck, worsened by the sludge of tar sands, at the same place. The indigenous territory that the pipelines and the Canadian government seek to destroy is, as Glenn Morris of UCD mentions below, larger than the size of England.

Their people, Warner reported, had pursued a court case, and the Canadian supreme court had ruled in their favor. There is a declaration against the pipeline signed by 61 indigenous tribes in this territory (below).

Hearing of the covert attempts of mining companies to survey and begin to wreck the land, Warner and Freda each had to drive, on three separate occasions, with a small number of others, to block them. Confronting the Company representatives, they told them firmly to get all their equipment off two days later, and the Companies had had to do so (in one case, the workers applauded…Not everyone dreams to be an instrument of ecological destruction…).

Warner and Freda were very glad to be in Denver, and to speak before an audience of over a hundred (provided food by the one native American restaurant in Denver), mainly of native american, black and chicano students.

I talked with Freda and Warner afterwards for a while, and they told me of going to a meeting with Pacific Trails Pipeline and some bought off First Nation leaders who did not have title two the land where they were the only two to stand up. And how good the courage to do so felt...

But there are 61 tribes in the movement, defending the earth.

Each was both a quiet and fiery speaker, every word worth taking in. They began and ended with two songs (this, too, is part of indigenous cultures…). See here.

The organizers showed the film Petropolis, without sound, which contrasted the scenes of the wilderness and river with the environment desecrated by the tar sands. I just listened to the two speakers…

Warner's clan has a creation story in which a woman is the last survivor of a tribe destroyed in war. She lives in the forest for two years, but is terribly lonely. One cloudy day, she decides to take her life. She is lying on the ground, contemplating death. But the sky opens up, light comes through, and a voice from the heavens, asks her to join him, saying she will never be alone. She goes to the heavens, and has several children. But lonely for home, she brings them back, people of the sky, of the sun, to the forests...

Against all the crimes of the Canadian administration against indigenous people (the crimes of stealing and starving children among the greatest), they are strongly here. For these are the first nations, each with a sense of ancestors going back thousands of years (think of what most Americans and Canadians recall about heritage...).

Warner also described poor people today, cut off from urban jobs, who live by fishing in the one lake not polluted, hunting for moose on Wet'suwet'en lands. Both Freda and Warner told of how some waters were poisoned, some fish with two mouths. Those who catch them toss these fish aside, but often eat ones with the poisons inside…Warner is an anthropologist and ethnographer in first people studies. He spoke of a young student who has a rare form of cancer (not so rare, however, wherever tar sands production emerges). We heard of another case, fortunately cured at least for a time, from someone in the audience…

They had learned, each said, the importance of standing up for the land. The declaration below speaks of an Enbridge spill in Michigan in 2009 into the Kalamazoo River (see also Greg Palast's commentary on pipeline "safety" below). They spoke of how the companies/government were determinedly pushing the pipeline (the government is a puppet of the companies with a deal promised to the Chinese for tar sands production, what they had wanted to put the pipeline through the United States for; the proposed Keystone XL pipeline would have poisoned the Ogallala Acquifer in Nebraska, which provides water to 9 states, including Colorado; it would also have pushed climate change far beyond what is even now likely - James Hansen, the government climatologist, has said that putting the tar sands into production is “game over” for preventing New York being under water, and was among the 1500 arrested for doing civil disobedience in front of the White House).

Warner also spoke respectfully of Barack Obama for rejecting the crazed efforts of the Republicans and Hilary Clinton’s State Department for the pipeline. See the earth cries out here on the AIM protest at Metro led by Tom Poor Bear from Pine Ridge who interrupted Obama’s speech and forced him to confront the issue. But this is no permanent victory – and University of Colorado at Denver AIM, led by Scott and Tessa, also reported on a future demonstration in Commerce City, and education to prevent a renewed application for the Keystone pipeline.

Someone in the audience asked if perhaps in 400 years, Keystone-Enbridge-the Canadian government-the US government could be made to repair the damage...The person had not perhaps listened, quite. What Warner and Freda spoke to is that there will not be clean earth for two more generations without a fight (this is true of the tar sands and nuclear energy – see here). The poisoning of the earth means a rapid decline of human life. Perhaps companies can sell fancy bottled water (full of chemicals) to those who can still buy it. In Cochabamba, Bolivia several years ago, there was a fight of poor people against the privatization and rationing of water (Palast has a chapter on this in The Best Democracy Money can Buy) This will also be the century of water wars…See here. We must – the two speakers were on fire to do so – stand up for the earth.

Despite the corruption – the dimwittedness of the 1% (global warming will leave them, for a time places to go, but not really so long) in North America (even Obama knows about the climate and has done little) – a movement from below can stop this.

Warner and Freda spoke of the NGOs who had sold them out to the companies, not even told them of meetings, and about young anarchists who had come out beside them to fight against Enbridge and Keystone (it was a remarkable tribute to these anarchists and one that participants in Occupy might want to listen to…). Occupy can certainly move in this direction (along with 360 and others organizations, some of whose participants were at the meeting). But as with American wars, the time to stop the destruction is now.

Here is a note from Glenn Morris announcing the meeting:

"The American Indian Student Educational Progams & Outreach office at UC Denver is hosting two First Nations guest speakers, Warner Naziel and Freda Hudson for a Tar Sands Pipeline Awareness Project night, this Thursday, January 26th from 7-9pm. Join us for a discussion on the Canadian Tar Sands, the Northern Gateway Pipeline and the Keystone XL Pipeline."

"As most of you know, the Tar/Oil Sands Project is the largest industrial development on earth, with plans to devastate an area of indigenous peoples' territories in northern Alberta, Canada the size of England. Although the Obama administration has denied the permit for the Keystone XL Pipeline for the time being, the Canadian government has vowed to pump that same oil across First Nations' territories in Alberta and British Columbia -- destined for China and Japan via the Northern Gateway Pipeline. First Nations in Canada have pledged to stop the Northern Gateway Pipeline from crossing their territories, which implicate all of British Columbia. See their declaration: here. "

"Warner and Freda hail from Wetsuwetan, an Indigenous territory located in British Columbia. These two First Nation warriors have been fighting courageously against the Tar Sands Project and the Northern Gateway Pipeline, that is planned to cross their homeland territory. American Indian students from UC Denver protested the Keystone XL Pipeline during a campaign visit from President Obama this past fall; we decided that an information night on campus about the tar sands/pipelines was necessary."

For Immediate Release: Dec. 2, 2010

Enbridge plans dead in the water: 61 Indigenous Nations say “NO” to
pipeline in Fraser River watershed

“...this project isn't going anywhere.”

VANCOUVER (Coast Salish Territory) – Sixty-one Indigenous Nations have come together in a historic alliance to protect the Fraser River watershed and to declare their opposition to the proposed Enbridge Northern Gateway Pipeline. Signed in Williams Lake last week, and published in a full page ad in the Globe and Mail today, the “Save the Fraser Gathering of Nations” declaration is based on Indigenous law and authority, and it states:

We will not allow the proposed Enbridge Northern Gateway Pipelines, or similar Tar Sands projects, to cross our lands, territories and watersheds, or the ocean migration routes of Fraser River salmon.

The declaration is the second major First Nations declaration banning tar sands pipelines from BC this year, and it makes clear the nations see the federal review process for the project as a violation of their laws and rights under international law, including the UN Declaration on the Rights of Indigenous Peoples, which Canada signed last month.

“The Enbridge pipeline would risk an oil spill into our rivers and lands that would destroy our food supply, our livelihoods and our cultures,” said Chief Larry Nooski of Nadleh Whut’en First Nation, part of the Yinka Dene Alliance opposed to the Enbridge project. “Our laws do not permit crude oil pipelines into our territories. This project isn’t going anywhere.”

From the headwaters of the Fraser, to its mouth at the Pacific ocean, nations along the watershed say critical salmon runs would be threatened by a proposed 700,000 barrels per day of crude oil and toxic hydrocarbons crossing the top of the Fraser watershed as proposed.

“St'át'imc territories are downstream of the proposed pipeline, putting our communities at risk,” said Chief Art Adolph of Xaxli’p, a community of the St'át'imc nation whose territories cover the middle and southern parts of the Fraser watershed. “An oil spill into the Fraser River could be devastating for our people. Since time immemorial the river provides for us, and we have an obligation to protect it.”

“Oil spills from the Enbridge pipelines would be inevitable,” said Chief Jackie Thomas of Saik’uz First Nation. “That risk to our livelihoods is unacceptable. Enbridge has spills all over North America, including the big Michigan spill earlier this year. We refuse to be next.”

For more information:
Chief Larry Nooski, Nadleh Whut’en First Nation, 250-613-7102,
Chief Art Adolph, Xaxli’p First Nation – St'át'imc Nation, 250-256-4800
Chief Jackie Thomas, Saik’uz First Nation, 250-570-7392

And here is some reporting, a little speciesist though the acronym for petroleum inspection gauge invites it, from Greg Palast underlining the cover-ups - and premeditated murderousness - of oil company "safety":

The Pig in the XL Pipeline
Insider reveals concealed "error" in pipeline safety equipment that could blow away the GOP's XL pipe dream

For Firedoglake

by Greg Palast

"They threatened me. Last night I got a call and they threatened me. If I talked."

"Pig Man #2," a pipeline industry insider, had a good reason to be afraid. He was about to blow the whistle on a fraud, information that could blow away the XL Keystone Pipeline project.

His information: The software for the crucial piece of pipeline safety equipment, the "Smart PIG," has a flaw known to the industry but concealed from regulators.

The flaw allows cracks, leaks and corrosion to go undetected - and that saves the industry billions of dollars in pipe replacements. But there's a catch. Pipes with cracks and leaks can explode - and kill.

Federal law requires the oil and gas industry to run a PIG, a Pipeline Inspection Gauge, through big oil and gas pipelines. The robot porker, tethered to a GPS, beeps and boops as it rolls through, electronically squealing when it finds dangers.

But whistleblowers told us at Channel 4 Dispatches (the "60 Minutes" of Britain) that the software is deliberately calibrated to ignore or minimize deadly problems. They know because they themselves worked on the software design team.

This week, President Obama refused to issue a permit for the Keystone XL Pipeline, but invited its owner, Trans-Canada, to re-apply. The GOP has gone wild over Obama's hesitation, screeching that slowing the Canada-to-Houston pipe for a full safety review is a jobs killer.

But it's the Pipeline that's the killer. Here's what Pig Man #2 told me, on camera, his face in shadow:

When his team found the life-threatening flaw in the program, they immediately created a software patch to fix it. But then their supervisor ordered them to bury the fix and conceal the problem.

With the PIG calibrated to the danger sensitivity required by law, oil and gas companies would have to dig up, inspect and replace pipe at a cost of millions per mile. That's not what the oil companies wanted from their contractor that designed the PIG program.

The programmers' bosses took no chances. "We had to sign nondisclosure agreements." They were required to conceal "any problems of this sort or the nature of the software we worked." It could not "be made public at all. Under threat of lawsuit." Nice.

With the error left in place, he said, "People die."

Pig Man #2 was shaking a bit when he said it. On September 9, 2010, a gas pipeline exploded, incinerating 13-year-old Janessa Greig, her mom and six others.

A PIG - an honest PIG - would have caught the bad welds in the old pipe.

Trans-Canada says that Keystone XL won't contaminate the Ogallala Aquifer, the Plains states' crucial water source. Keystone's permit application boasts that we can rely on XL's "full pigging capability."

Sure. Last summer, an ExxonMobil pipeline burst and poisoned parts of the Yellowstone River - only months after it had been "pigged."

The danger of a muzzled PIG goes beyond Keystone XL. New gas fields opened by hydraulic fracking will require over 100,000 miles of new transmission pipe.

This week, Newt Gingrich called Obama's temporary block on the XL Pipeline, "stunningly stupid"; and Mitt Romney said Obama's decision threatened America's "energy independence." (Mitt, the oil is from, uh, Canada.)

But the real question is, can we trust these pigs? And not just the ones in the pipeline.

How torturers “think”

2012-01-28T06:48:00.000-08:00

Explicitly adopting Carl Schmitt’s arguments as American "law," Adrian Vermeule and Eric Posner, Harvard and Chicago law professors, assert thunderously in The Executive Unbound: After the Madisonian Republic, would not lead to a Hitler:

“More generally, Weimar has received too much attention in this setting. Civil libertarians invoke the shadow of Weimar to imply and occasionally say that expanding government’s powers during emergencies would produce another Hitler. It would not and if it did there is nothing civil libertarian judges could do about it.” (2011, Oxford University Press, p. 39). See here.

The less anybody knows about Weimar, the more they might swallow such sentences…

The last clause is remarkable for its a) belligerent acquiescence in a police state, for example Guantanamo, accompanied by disregard for international and American law, b) downplaying of what standing up for the law by judges and lawyers may do, either as an example or to inspire fellow citizens. Standing up for the law is doing their job as justices; acquiescing in executive tyranny is the opposite…

Scott Horton has long invoked the hero Helmuth von Moltke who gave his life to fight for law in Nazi Germany and his wife Freya below.

Vermeule and Posner broaden the trite neoconservative/political Straussian meme at the opening of the Introduction to include the Alien and Sedition Acts which they do not think wrong but “useful executive action”, not to be judged ex ante, but at most ex post facto. No one should trammel the executive, they assert, by abstract rules – read: the law; they even refuse to judge morally ex post facto (after the fact). Even Hitler wasn't bad...

These author cannot see through “the eyes” of the executive, they say acquiescently, and so the executive must be allowed to act “illegally” in crisis...But empathy, for Vermeule and Posner, is cramped. They look up, never down (they are not citizens, on an equality, with others...). They do not see through the eyes of victims, for instance those in concentration camps for Japanese-Americans which they commend or of the tortured. Instead, they strut as would-be Guantanamo or Bagram guards. They offer the circumlocution “harsh interrogations” p. 1, which is of course a Bush/New York Times propaganda or a non-American English expression - they are all clear enough on torture when America "enemies" do it - to deny the rule of law

Vermeule and Posner are but vassals to a duke (in an Ezra Pound translation of an ancient Chinese poem, there are the revealing lines: “fat as snakes the duke’s vassals/glide out to consume/what they get from the duke.”)

They disparage principled judges who care for the core of law and its root in the Magna Charta (1218) – laws with regard to the rights of each citizen, notably habeas corpus and the right not to be tortured – with the certainty that they know….

They praise a pattern in American history of tyrannical acts: for instance, the Alien and Sedition Acts, Lincoln’s abridgment of habeas corpus in the Civil War, concentration camps for Japanese Americans during World War II, and Guantanamo. They insist that after the crisis, the rule of law will be restored (this is Herbert Storing’s error in his original and subtle article on Lincoln and FDR*).

They assume that the pattern will hold (for a seventh time given their six cases…). Why?

The first part of the pattern also exists, to some extent, in the Roman republic and Weimar Germany. But the emperors and Hitler were not defeated. Some argument and historical knowledge is needed here. Vermeule and Posner tell would-be serious lawyers: “it will all be all right. In any case, mere judges can do nothing…

Though they insist on ignoring Weimar, they themselves invoke…Carl Schmitt whom they misleadingly style as an advocate of Nazism before 1933 (pp. 38-39) He was an assistant, as Todd Pierce tell us, to General Kurt von Scheicher and for authoritarianism (likened to the miracles of Jesus) as opposed to the rule of law (in turn, likened by Schmitt to the “Jews” supposedly wooden affection for law). They do not know this is the pure stuff as far as anti-semitism goes, though even they might have detected a whiff...See here and here.

One might surmise that they favor some new facsimile of Nazism themselves (not a bad bet for some of the original and most important transmitters of this doctrine like Leo Strauss - see William Altman The German Stranger - see here) or , more likely, are just sycophants of executive power and contradict themselves – abandon reasoning – to flail at the rule of law.

Even Harvey Mansfield, a leading publicist in the Wall Street Journal and the Weekly Standard, for executive power - see here and here - and a knowing student of Leo Strauss, expresses some concern that they let the cat of the bag by praising Schmitt. See his somewhat arch if sharply against democracy (the mere tyranny of the majority, Leo Strauss in Tocquevillian dress), in a New York Times review here. They do not practice, as Strauss and Mansfield do, exoteric - hidden - writing...(see Leo Strauss, Persecution and the Art of Writing).

Apparently, the first draft of this volume elevated Carl Schmitt at the expense of Madison at the outset. That much was altered in the editing...

Below are two pieces by Scott Horton on Helmeth James von Moltke, son of a leading World War I general (a reactionary one), who stood up, at the cost of his life, for the rule of law. Horton draws pointed contrasts between decent lawyers and Bush administration war criminals (of whom Vermeule and Posner are would-be accomplices). In this increasingly sordid context, we might recall what integrity, courage and decency look like.

Sunday, October 08, 2006

Balkinization

When Lawyers Are War Criminals

Scott Horton

To the memory of Helmuth James von Moltke

"In France, innumerable summary executions occur, even as I sit here writing. Each day certainly more than a thousand people are killed, and thousands of German men experience murder as a matter of routine. And yet all of that is child's play compared to what's going on in Poland and Russia. Can I learn about this and just sit at the table in my heated apartment and drink tea? Don't I establish my complicity simply by doing nothing? What will I say in the future, when someone asks me: and what did you do during this time?"

- Helmuth von Moltke, in a letter to his wife, Oct. 19, 1941

Talking about the Nuremberg Tribunals inevitably seems to involve "bad Germans," so I want to talk about a man who deserves to be remembered in the course of this meeting. He was more than merely a "good German;" indeed, he was a man whose powerful moral example serves as a model for all of us today, a man who represents the ethical pinnacle of our profession. And the strange thing is that he was a staff lawyer at the German defense ministry during the Second World War. His name was Helmuth von Moltke. His tenacious advocacy of the Geneva and Hague Conventions in the face of withering criticism and suspicion from the Nazi hierarchy saved the lives of thousands of civilians and prisoners, particularly on the Eastern Front and in the Balkans. It also led inextricably to his execution at the hands of the Nazis in 1945.

Disgusted by an atmosphere in which law was constantly subverted to political expedience, Moltke envisioned harsh prosecutions of politicians and lawyers who engaged in such antics as an essential purgative. In a draft dated June 14, 1943, Moltke envisioned a special international criminal tribunal to be convened at the conclusion of the Second World War for the purpose of bringing to justice those who violated the laws of war. Lest there be any doubt, it was principally the men he worked with every day in the Wehrmacht whose punishment he foresaw. In view of mounting evidence of a crime of genocide, and out of concern that international customary law failed yet to provide a medium for its punishment, he advocated an expansive posture for prosecution. "Any person who violates the essential principles of divine or natural law, of international law, or of international customary law in such a fashion that makes clear that he contemptuously disregards the binding nature of such law shall be punished," he wrote in a plan for a post-war tribunal in 1943.

This conference has turned on a great deal of discussion of Robert Jackson and his visionary role in the Nuremberg process, but it is truly remarkable that so much of Jackson's vision was commited to paper two years earlier, and its author was not only a German, but the scion of his nation's most prominent military family.

I come to the example of Moltke for another reason, namely that he very properly puts the emphasis not on the simple soldiers who invariably operate the weaponry of war, but on those who make the policies that drive their conduct. And in that process, his stern gaze falls first on the lawyers. In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said "the basic building blocks of civilization"? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?

These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system.

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

United States v. Altstoetter: Lawyers As War Criminals

Concerned about the level of resistance faced by German troops in the occupied territories, Hitler instructed Field Marshall Keitel to issue a special decree authorizing extraordinary measures pursuant to which political suspects would simply "disappear" to special detention facilities and might face summary court proceedings. The death penalty appears as the punishment most frequently contemplated. The decree, issued on the same day the Japanese attacked Pearl Harbor (December 7, 1941) and as the German drive on Moscow stalled and the Soviet counteroffensive had begun, is known as the "Night and Fog Decree" (Nacht- und Nebelerlass), a reference to the covert action it authorized. Contemporaneous documents make clear that it was motivated by the high level of casualties German soldiers were sustaining behind the front in occupied territory. Pacification of this territory was given a high priority.

A team of Justice Department lawyers worked with Keitel and his team at the German General Staff (OKW) on the drafting of the decree and further steps for its implementation. This included a series of highly particularized rules setting out how such detainees were to be treated by police, justice officials and others. The rules specified how such individuals would be permitted to make wills, issue final letters of farewell, what would be done with children born to detainees and how their death could be recorded in the registry. Other lawyers prepared parallel orders creating special secret courts and detention facilities for those interned under the Nacht- und Nebelerlass. These courts were crafted under domestic German law and thus constituted a projection of German law into the occupied territories.

These arrangements flouted the protections of the Hague Convention, specifically the right of "family honor, lives of persons" and the right "to be judged under their own laws." To the extent applied against uniformed service personnel, they also violated the Geneva Convention on Prisoners of War of 1929. However, the Justice Department lawyers advanced the view that the Hague and Geneva Conventions were inapplicable because their adversaries did not subscribe to these documents. This decree was applied brutally, and with particular force in France. A total of at least 7,000 persons were detained; a large number of them perished.

The Justice Department lawyers justified these acts as steps available to an occupying power in order to protect its troops against terrorist acts or insurgency. Further, the occupied territories could be divided, roughly, into three categories: (i) areas directly incorporated into the German State (for instance, Austria, Alsace-Lorraine, the Eupen-Malmédy region of Belgium, Danzig and portions of Poland); (ii) areas under German occupation and direct administration (such as Bohemia and Moravia); and (iii) areas under puppet régimes (such as Hungary and Slovakia). As for the first, they asserted the right to treat persons found within those territories under German law. As to the second, they claimed the right as occupier to promulgate new rules and orders, and to derive them from Germany. As to the third, they relied on the acquiescence of régimes like Vichy France and Hungary. Their positions on these points were at least colorable from a legal perspective.

The Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, "not farmers or factory workers," they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were "recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war." That is to say, they were customary international law. Further, the United States charged, this decree "would probably cause the death of human beings," grounding a charge of homicidal intent.

After trial, the two principal Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years' imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.

The Present Crisis

Between the fall of 2001 and early 2004, US Government lawyers engaged many of the same issues and took decisions very close to those taken by von Ammann and his colleagues in the German Justice Department. In particular, the Nacht- und Nebelerlass has a close cousin in the United States extraordinary rendition project on a policy plain, though we should quickly note two essential distinctions: the total throughput in human terms has been dozens, not thousands of persons, and it has not involved death sentences, though not a few persons (to be exact: 98) have died in incarceration under circumstances suggesting that torture was involved, if they were not indeed tortured to death. These lawyers adopted a mantra, namely, to quote Alberto Gonzales, that the Geneva Conventions were "quaint" and "obsolete," and did not apply to a "new kind of warfare." In so doing, they thoughtlessly moved in the same paths traversed by lawyers in Berlin sixty years earlier. Indeed, at the General Staff trial, the world public learned for the first time of the valiant struggle of Moltke when one of his memoranda was put into evidence. It pleaded in forceful terms for respect of the Geneva Convention rights of enemy soldiers, civilians and irregular combatants on the East Front, mustering a series of arguments that bear remarkable similarity to a memorandum sent by Colin Powell to President Bush sixty years later. And in the margins, in the unmistakeable pencil scrawl of Field Marshall Keitel, were found the thoughts that these rules were "quaint" and "obsolete," they reflected the "outmoded notions of chivalric warfare." This was cited as an aggravating factor justifying a sentence of death against Keitel.

The Bush Administration apparently assumed that the court system would toe the political line they had drawn. It was clearly taken by surprise when the Supreme Court, in Hamdan, knocked the legal props out from under the Administration's detainee policy, validating the positions taken by the senior legal officers of the nation's uniformed military services and the State Department, which had opposed the Administration on this grounds. The Hamdan decision presents a straight-forward interpretation of the Geneva Conventions, finding that Common Article 3 was applicable to detainees in the War on Terror who did not qualify for prisoner of war protections. This position is also identical to the view embraced by the organized bar in the United States in 2003, in a series of reports that warned the Administration that its legal reasoning was both radical and isolated. But the most striking aspect of the Court's opinion was its forceful and repeated references to the War Crimes Act of 1996. There is little doubt that the Court was concerned that the Administration's policies were not just inconsistent with Geneva, but in fact potentially criminal under American law.

The Administration's response was to propose the Military Commissions Act of 2006, the thrust of which was to attempt to amend the War Crimes Act into oblivion and to make the amendment retroactive. When it became clear that the Administration could not muster a majority for this legislation in the Senate, the Administration entered into a compromise with Senators McCain, Warner and Graham, who had specifically flagged and objected to this effort.

I want to ask today: What has this legislation done to the legacy of Nuremberg? Has it granted impunity to persons who committed war crimes? Is that impunity effective, and might it have unintended consequences?

At Nuremberg, Justice Jackson promised that this process would not be "victor's justice." He said "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well." Powerful words. A moral compact. Did the Bush Administration seek to repudiate Jackson's commitment? This can be answered quite clearly: yes. But did they succeed? That is less clear. But before getting to that point, I want to deconstruct some myths that the Administration has generated to obscure their entire process.

The Camouflage

In announcing the Military Commissions Act, President Bush insisted that he needed the legislation to lay to rest the concerns of 400-500 professional interrogators. These loyal citizens were, he said, concerned that the Supreme Court in Hamdan had called into question the legality of what he called "the Program," a set of "alternative interrogation procedures" which were developed and implemented by his Administrations. This was perhaps the most fact-free speech Bush has ever delivered. But it contained three fundamental misrepresentations.

First, he suggested that the interrogators faced the prospect of prosecution under the War Crimes Act. In fact, as a matter of long-established policy, US service personnel are prosecuted under the Uniform Code of Military Justice and not the War Crimes Act. The CIA personnel and private contractors involved in this process likewise faced no prosecution risk under the WCA because of a memorandum of agreement between the Department of Justice, Department of Defense and CIA done by Michael Chertoff when he headed the Criminal Division. Chertoff undertook that as long as a set of scheduled techniques were used, which are described on an appended memorandum he prepared with Alice Fisher, no prosecutions would be undertaken for death, dismemberment or assaults. Consequently, only one group feared prosecution under the War Crimes Act, and that is the policy makers: John Yoo, Jay Bybee, Alberto Gonzales, David Addington, Jim Haynes and a host of others. This measure was pushed at their initiative, and for their benefit. This is the first dark secret of this measure.

Second, Bush revealed that there was a new "Program," of "extraordinary procedures" that he, personally, had been advised of and had approved. The Program, he complained, had been stopped as a result of the decision in Hamdan. This is part of a general political strategy of spotlighting judges and accusing them of politics when they are bravely enforcing the law. But the facts here are different: the Program was always against the law, and the US Army's own interrogation manuals stated just that. As the current issue of Time reports, and I have corroborated from my own sources, the use of these techniques was suspended when even the President's own lawyers, and I am talking about political appointees in the DOJ as well as the interim general counsel of the CIA, concluded that it was unlawful. They were propelled to this conclusion not by Hamdan, but a half year earlier, by the passage of the McCain Amendment, which banned cruel, inhuman and degrading treatment as well as torture. Placing the blame on the Court was the second lie.

Third - and this is the darkest lie of all because it impunes the integrity of American service personnel – Bush stated that the reach for highly coercive new techniques came at the insistence of the interrogators themselves. But in fact, we now know from an array of leaked documents that these techniques were rammed down their throats, often over courageous opposition, both within the CIA and the uniformed services. When the career professionals refused, DOJ lawyers were enlisted, led by figures like Alberto Gonzales and John Yoo, to override their objections by issuing formal opinions backing orders from the White House to use abusive techniques. Consequently, when we allocate moral and legal culpability for the deaths, torment and scarred lives that this process has produced, it is the torture memo writers who surely deserve the biggest blame. It was their professional duty to say "no," but instead when asked whether they would give a green light to war crimes, they responded by doing their master's unthinking bidding.

Impunity

The Military Commissions Act seeks to accomplish its objective of granting impunity through three tools. First, it redefines "war crimes" into a series of specifically chargeable offenses, of which two, "torture" and "cruel treatment" are most important for these purposes. Second, it makes the restatement of these crimes retroactive to September 11, 2001. Consequently, a series of criminal offenses under the War Crimes Act will disappear retroactively when the Act goes into force. Third, it strips courts of jurisdiction over habeas corpus petitions and forbids litigants to cite the Geneva Conventions and related international and foreign law in those courts, in an effort to blind the courts to the law which the Constitution obligates them to enforce.

The initial draft makes clear that the White House sought impunity for crimes arising as a result of the use of three techniques that the Bush Administration (and, from the remarkable wording of one of Bush's press conferences, Bush himself) authorized and which constitute grave breaches under Common Article 3: waterboarding, long-time standing (or as it was called by its NKVD inventors, in Russian: stoika) and hypothermia or cold cell. The use of these techniques is a criminal act. The purported authorization of these techniques is a criminal act. The larger effort to employ them constitutes a joint criminal enterprise.

The Act does not alter the fact that these practices are outlawed by Common Article 3. However, by creating a series of specifically chargeable crimes that weave and bob through the historical offenses, the drafters apparently seek to make it more difficult to prosecute these offenses in US courts.

At the core, we have this question: are waterboarding, hypothermia and long-time standing "cruel treatment" as the crime is identified in the Act? And on this point, the legislation's sponsors – Senators Warner, McCain and Graham, say "yes," while the White House says "no." A fair reading would say that the Act creates ambiguity where none previously existed. However, a close comparison of the White House's original proposal with the compromise version that resulted clearly undermines the White House's claims, for the changes seem clearly keyed to forbidding the questioned tactics.

So where do we go from here? Unfortunately its track record up to this point suggests that the Administration will exploit any ambiguity to work its will. Consequently, the burden will shortly fall on Administration lawyers, who will be challenged to pick their path: will it be that of Moltke and Jackson, or will they adhere to the twisted course of Addington, Yoo and Gonzales? That's a stark choice, and one that entails absolute moral clarity.

If the consequence of the Act is to immunize those who authorized these techniques from prosecution, is that lawful? The US position, articulated most recently in connection with Yugoslavia's efforts to immunize its military leaders, was that any such act would only provide evidence of a broader conspiracy to commit war crimes. Consequently, the grant of immunity is ineffective in the contemplation of the international community; moreover, those involved in purporting to grant immunity may thereby be roped into a charged joint criminal enterprise.

Clearly there will be no prosecutions in the US, certainly not under Attorney General Alberto Gonzales, who would figure near the top of anyone's list of criminal conspirators and whose name has already appeared in a criminal indictment relating to Abu Ghraib. But what about universal jurisdiction processes? Spain, France, Belgium, Germany, Switzerland and Italy all have universal jurisdiction statutes. Germany has already entertained a complaint against Rumsfeld, Tenet and others over detainee abuse questions. That complaint was dismissed without prejudice by the German Federal Prosecutor. In his opinion, the Federal Prosecutor stated that the first predicate of the statute had not been met since there was no showing that a prosecution for the crimes shown in the home nation of the defendants would not occur. Considering the political and military position of the United States, the invocation of a universal jurisdiction statute against sitting officers of the government has to be viewed as more than an uphill task. But I think passage of the Act has just made it a whole lot easier.

Conclusion

The legacy of Nuremberg and the solemn undertaking that Justice Jackson gave for the United States at the opening session, are under assault by the Bush Administration, which has embraced a radical world view that rests on a cult of power and a disdain for law. And fundamentally, this Administration has a notorious allergy against accountability in any form. But this conference is evidence that the spirit of Nuremberg has not been extinguished in the United States. And indeed, the flickering candle that was lit at Nuremberg has developed into principles which form the heart of the international legal order. We bear witness to those principles with this conference.

Remarks delivered at the ASIL Centennial Conference on The Nuremberg War Crimes Trial, Bowling Green, OH, Oct. 7, 2006

Posted 4:10 PM by Scott Horton [link]

January 11, 11:40 AM, 2010 · No Comment · Previous · Next

Remembering Freya and Helmuth James von Moltke

By Scott Horton

This weekend we learned that Freya von Moltke died at the beginning of the year at her home in Norwich, Vermont. A lion of the resistance to Hitler and the wife of its best known leader, Helmuth James von Moltke, she was 98. The Times reports:

“He put the question to me explicitly — ‘The time is coming when something must be done,’ ” Freya von Moltke said. “ ‘I would like to have a hand in it, but I can only do so if you join in too,’ and I said, ‘Yes, it’s worth it.’ ” So, with a wife’s assent, began a famous challenge to Hitler. At the height of the Nazi victories, Count Helmuth James von Moltke invited about two dozen foes of Nazism, many of them aristocrats like himself, to imagine a new, better postwar Germany. For him, his wife’s participation was essential, as she remembered the conversation in “Courageous Hearts: Women and the Anti-Hitler Plot of 1944,” a 1997 book by Dorothee von Meding.

Moltke’s correspondence with his wife, published as Letters to Freya, constitutes, along with Anne Frank’s Diary, Primo Levi’s Se questo è un uomo, and a handful of other books, one of the great moral documents to emerge from World War II. In his letters, Moltke, the scion of Germany’s greatest military family, documents the mentality of war—what he called “cowardice, servility and mass-psychosis”–and how it undermined the moral essence of men and women, converting them to “machines with a particular function in a process.” Moltke was no pacifist, but he was a firm believer in international law and the laws of war as essential tools to protect the innocent and soften the harms of warfare. The processes he so skillfully observed can be found in some measure in every society enmeshed in war, not least of all in our own.

Today, January 11, marks the fifty-fifth anniversary of the death sentence that concluded his trial by the infamous Volksgericht for his courageous actions against the Hitler regime.

*Storing, “The Presidency and the Constitution,” in Toward a More Perfect Union, ed. Herbert Storing and Joseph Bessette, (American Enterprise Institute Press, 1995). A student and, in this respect, inspired by Leo Strauss, Storing learned the examples from the Chicago constitutional law professor C. Hermann Pritchett. In Storing's essay for the American Enterprise Institute, these ideas were not yet the awful mantra that neo-con talking heads have made them.

Carl Schmitt and Guantanamo at 10: Todd Pierce, a Judge Advocate General officer, speaks out

2012-01-25T07:36:00.000-08:00

Will Altman sent me this striking piece from Todd Pierce, a Guantanamo defense lawyer in the Pentagon* from the National Law Journal below. It tracks the introduction and dangerous near triumph of Carl Schmitt’s doctrine stated in the first sentence of his 1923 Political Theology: “he is sovereign who makes the decision in the state of the exception” in the United States at the expense of the separation and balance of powers in the Constitution.

Pierce highlights a 2010 book by Eric Posner (Chicago) and Adrian Vermeule (Harvard) – The Executive Unbound: After the Madisonian Republic, Oxford Press - which echoes and embroiders this doctrine. Vermeule and Posner use the aim of fighting abroad – and Guantanamo – to advance the “legal,” that is authoritarian and anti-Constitutional suppression of dissent here. As Vermeule put it on Balkinization blog,

“We envision the Constitution in 2020 as a plebiscitary, president-centered electoral democracy in which Congress and the courts have been reduced to marginal actors, who carp from the sidelines but for the most part end up deferring to executive power, if only because the executive is the least dysfunctional branch.”

As I stress in Must Global Politics Constrain Democracy?, executive power – put crudely, “Mussolini makes the trains run on time” in the 1930s pro-fascist colloquialization of the executive as "the least dysfunctional branch" - and the Posner-Vermeule apology for it is an example of the anti-democratic feedback of international politics: that aggressions abroad lead to abridgments of the Bill of Rights as well as tyranny at home.

For instance, the Iraq occupation, now lessened (the US has mainly Xe Corporation mercenaries "on the ground"), and the Afghanistan one, as well as the drone war in Pakistan among others, violating international law (aggression, torture, though the latter was limited by Obama who, however, still retains indefinite detention and its symbol, the colonial – seized in Cuba in the war of 1898 – “non”-US territory of Guantanamo), is today coming home to roost.

For the echo of these aggressions, as I stressed in "New Institutions for Peace and Democracy" (in Sir Nicholas Kiddrie, Sir Ronald. Mancham and H.E. Carazo Odio, eds., The Future of Peace in the Twenty-First Century, 2002), is the Patriot Act under Bush, and today, the assertion of a doctrine that the President can murder an American citizen – an “enemy” – far from the field of battle with no judicial proceeding (Anwar Awlaki, who at least arguably was an enemy; his 16 year old son, as plain and grim a war crime and an ordinary American crime as it gets), as well as the new National Defense Authorization Act, which includes an infamous provision, passed by even the Democratic Senate along with the more open authoritarians, that the President can arbitrarily detain Americans without trial. See Glenn Greenwald Monday on the murder of a "former" British citizen, Bilal El-berjawi, by an American drone here.

Pierce puts what I have named the idea of anti-democratic feedback fiercely:

“As evident in Yoo and Delahunty's legal memos asserting unitary executive authority, the legal theory underpinning Guantánamo and the military commissions were an assault upon the structure of our form of constitutional government; lawfare. It was not the inevitable conclusion required by the Sept. 11 attacks, but the exploitation of a tragedy to import a foreign legal ideology, a legal bacillus, into our legal system.”

As Pierce also indicates, Harvey Mansfield, the Harvard follower of Leo Strauss, has advocated these tyrannical doctrines in the Wall Street Journal (with the neo-con proviso – in Mansfield’s case, mere exoteric writing – that of course the Constitution will be restored once the trouble is over just as it has been in the past. See here and here. But why should we think so? When tyranny comes (when the Roman Republic was overthrown, when Hitler was in power), was there “inevitably” such a movement back?.

Lacking political sophistication, Posner and Vermeule wave away worries about Weimar and the Constitution (see especially pp. 38-39 which I will comment on in another post). But to say the least, one needs an honest assessment of what it means to abandon freedom for Americans and decency toward prisoners of war. Pierce, whose father was a prisoner of war during World War II, speaks movingly of these issues.

“I will admit a particular sensitivity to the enforcement of the Geneva Conventions as my father, along with thousands of other American and Philippine prisoners of war, survived the Bataan Death March. This was despite the best efforts of soldiers who set aside the Geneva Convention of 1929 because of their oath of allegiance to the Japanese emperor. Following that war, my father's former captors and their legal advisers were put on trial and convicted of war crimes, including waterboarding and punishing prisoners without fair trials, as required under the 1929 Geneva Convention. This treaty was replaced by the Four Geneva Conventions of 1949 due to the mistreatment of prisoners like my father. “

For the Wall Street Journal, Mansfield invokes Aristotle’s notion of the rule of the best man (Bush, in Mansfield’s patronizing idiom) from book 3 of the Politics.** Who would have the audacity to claim to rule over Zeus, Aristotle says…But, once again, does Zeus give it up? Here is the use of political "philosophy" to sanction tyranny.

In fact, the transmitting connection of Schmitt to Bush, Cheney, Posner, Vermeule, and Mansfield, inter alia, in America is the scholarly and political activity of Leo Strauss, on whose doctoral committee Schmitt served, and who recommended Strauss for a Fulbright in 1932 by which Strauss emigrated to England and then the United States. Strauss’s 1933 letter to Karl Loewith defends the “principles of the Right – fascist, authoritarian, imperial," against the "childish and ridiculous imprescriptible rights of man” as “the only dignified basis on which to oppose the mean nonentity (meskine Unwesen).” For a debate on the significance of the letter which I organized at the American Political Science Association in 2007, see here; for Scott Horton’s translation see here.

Since Strauss was a Jew and a “political Zionist” with a fascist orientation (he admired Mussolini and defended Blau-Weiss, a movement led by Walter Moses and modeled on Mussolini – See William Altman, The German Stranger, Lexington Books 2011, ch. 2 , here and here - it is common sense to imagine that he thought the Right could provide an alternative to Hitler (my friend Peter Minowitz makes this mistake in Straussophobia, pp. 154-63; I was involved in Scott Horton’s fine translation of the letter and made the same mistake initially as did the first translator Eugene Shepherd). But Michael Zank was responsible for the right translation: meskine refers often to Shylock and Fagin in Italian and French and Strauss invoked the Nietzschean thought - it is an aspect of anti-semitism that also comes from Nietzsche, however much he opposed gutter anti-semitism - that Jewish slaves transformed morality into something resentful and slavish and that this extends subtly and consciously – as a Jewish trick – through Christianity, democracy, socialism and communism to the deteriorated “last men.” However much one may otherwise admire and learn from Nietzsche, the direct connection of this view to fascism and Nazism – in, for example, Heidegger, see here and here – and Strauss and those among his American followers who despise “the last men,” is worth taking in.

In a June 23, 1935 letter to Loewith, Strauss emphasizes that Nietzsche had long "ruled and enchanted him (beherrscht under entzaubert) him" and that he had believed every word of Nietzsche’s “that he understood” (Strauss, Gesammelte Schriften, 3:648-50). In 1929, however, he would trade Nietzsche for Heidegger (see Altman, ch. 3), but he retained this central idea. Thus, in Strauss's 1930 “Religioese Lage der Gegenwart” [“Religious Situation of the Present”], he despises the prophets, with Nietzsche, and stands with the kings.

“The end of this struggle is the complete rejection of tradition neither merely of its answers, nor merely of its questions, but of its possibilities: the pillars on which our tradition rested; prophets and Socrates/Plato have been torn down since Nietzsche. Nietzsche’s partisanship for the kings and against the prophets, for the sophists and against Socrates – Jesus neither merely no God, nor a swindler, nor a genius, but an idiot. Rejected are the theorein and “Good-Evil” – Nietzsche, as the last enlightener.”

“Through Nietzsche, tradition has been shaken at its roots. It has completely lost its self-evident truth. We are left in this world without any authority, without any direction."

"...and even so, the Bible: we can no longer assume that the Prophets are right; we must earnestly ask whether the kings are not right.” (Gesammelte Schriften 2:389; trans. Michael Zank).”

These thoughts underlie his phrase about the “meskine Unwesen,” the usurious or Jewish reality which needs to be destroyed, in the 1933 letter.

In the first section of the Genealogy of Morals, this connection of the inversion of values, slavery, Jewishness, Christianity, democracy, socialism and communism is startling. Nietzsche repeatedly refers to the impotence and vengefulness of this view, its stench (he repeats the mantra about the smell) in the smallness of what he calls in Thus Spoke Zarathustra/Also Sprach Zarathustra, “the last men” who huddle together and blink . He idealizes the warrior as much as Schmitt (The Concept of the Political/Der Begriff des Politischen) or Strauss - see his Remarks (Anmerkungen) on Schmitt’s essay, a refinement of it to the Right.

One might even say, of the transformed master morality that Nietzsche seems to endorse and the Uebermensch, the solitary dancer who sees the stars and affirms his existence (eternal recurrence) that it has, in this regard, some element of projection in it. In any case, the genocide against Jews and others which the ideas of slave morality and the last men helped spawn exemplifies accusing others of one's own crimes...Whatever fascists dementedly stigmatized Jews and others for, they in life exceeded...

Here is Nietzsche from the first section of Genealogy of Morals/Zur Genealogie der Moral:

Paragraph vii

"The greatest haters in history - but also the most intelligent haters - have been priests. Beside the brilliance of priestly vengeance all other brilliance fades. Human history would be a dull and stupid thing without the intelligence furnished by its impotents. Let us begin with the most striking example. Whatever else has been done to damage the powerful and great of this earth seems trivial compared with what the Jews have done, that priestly people who succeeded in avenging themselves on their enemies and oppressors by radically inverting all their values, that is, by an act of the most spiritual vengeance."

"We know who has fallen heir to this Jewish inversion of values…In reference to the grand and unspeakably disastrous initiative that the Jews have launched by this most radical of all declarations of war, I wish to repeat a statement I made in a different context (Beyond Good and Evil), to wit, that it was the Jews who started the slave revolt in morals; a revolt with two millennia of history behind it, which we have lost sight of today simply because it has triumphed so completely."

Paragraph viii

“You find that difficult to understand? You have no eyes for something that took two millennia to prevail?....There is nothing strange about this: all long developments are difficult to see in the round. From the tree trunk of Jewish vengeance and hatred - the deepest and sublimest hatred in human history, since it gave birth to ideals and a new set of values - grew a branch that was equally unique: a new love [Christianity]...But let no one surmise that this love represented a denial of the thirst for vengeance, that it contravened Jewish hatred. Exactly the opposite...Has not Israel, precisely through the detour of this 'redeemer,' this seeming antagonist and destroyer of Israel, reached the final goal of its sublime vindictiveness? Was it not a necessary feature of a truly brilliant politics of vengeance, a far-sighted, subterranean, slowly and carefully planned vengeance [in these sentences, Nietzsche for European fascists, makes the Protocols of the Elders of Zion look like pikers...], that Israel had to deny its true instrument publicly and nail him to the cross like a mortal enemy so that ‘the whole world’ (meaning all the enemies of Israel) might naively swallow the bait...What could equal in debilitating, narcotic power, the symbol of the ‘holy cross,’ the ghastly paradox of a crucified god...One thing is certain that in this sign Israel has by now triumphed over all other nobler values.”

Paragraph ix

“But what is all this talk about nobler values?" Let us face facts: the people have triumphed - or the slaves, the mob, the herd, whatever you wish to call them - and if the Jews brought it about, then no nation ever had a more universal mission on the earth...I don't deny that this triumph might be looked upon as a kind of blood poisoning, since it has resulted in a mingling of races [Nietzsche is metaphorical here, but ordinary Nazis and other anti-semites read him literally] but there can be no doubt that the intoxication has succeeded. The ' redemption' of the human race (from the lords, that is), is well under way; everything is rapidly becoming Judaized [Verjudung is a key word for Strauss, what the last men are the result of - see Altman, pp. 263-64 ], Christianized or mob-ized - the word makes no difference. The progress of this poison throughout the body of mankind cannot be stayed."

paragraph x

"The slave revolt in morals begins by rancor turning creative and giving birth to values - the rancor of human beings who deprived of a direct outlet of action compensate by an imaginary vengeance. All truly noble morality grows out of triumphant self-affirmation. Slave ethics on the other hand begins by saying no to an outside, an “other,” a non-self, and that no is its creative act. This reversal of direction of the evaluating look, this invariable outward instead of inward, is a fundamental feature of rancor.”

"The 'wellborn' really felt that they were also the 'happy.' They did not have to construct their happiness factitiously by looking at their enemies as all rancorous men are wont to do...All this stands in utter contrast to what is called happiness among the impotent and oppressed who are full of bottled up aggressions. Their happiness is purely passive and takes the form of drugged tranquility, stretching and yawning, peace, 'sabbath' emotional slackness.. ...[the rancorous person's] soul squints, his mind loves hide-outs, secret paths, and back doors; everything that is hidden seems to him his own world, his security, his comfort; he is an expert in silence, in long memory, in waiting...[again, note the consonance with ordinary anti-semitism, which this revs up to a very high pitch]...A race of such men will, in the end, inevitably be cleverer than a race of aristocrats.”

Paragraph xi

“The exact opposite is true of the noble-minded who spontaneously creates the notion good and later derives from it the conception of the bad. How ill-matched these concepts look, placed side by side, the bad of noble origin and the evil that has risen out of the cauldron of unquenchable hatred!...Deep within all these noble races there lurks the beast of prey, bent on spoil and conquest. This hidden urge has to be satisfied from time to time, the beast let loose in the wilderness [how many instigators/participants in Kristallnacht, had once upon a time, read this passage?]. This goes as well for the Roman [Strauss’s favorites – see the 1933 letter to Loewith], Arabian, German, Japanese nobility as for the Homeric heroes and the Scandinavian vikings.”

"These carriers of the leveling and retributive instincts, these descendants of every European and extra-European slavedom, and especially of the pre-Aryan [Nietzsche is not here courting misunderstand; it is his understanding] populations, represent human retrogression most flagrantly. such 'instruments of culture' are a disgrace to man and might make one suspicious of culture altogether. One might be justified in fearing the wild beast lurking within all noble races and in being on one's guard against it, but who would not a thousand times prefer fear when it is accompanied with admiration to security accompanied by the loathsome sight of perversion, dwarfishness, degeneracy [recall that Strauss agreed with "every word of Nietzsche...that I understood" - these are not hard...]? And is not the latter our predicament today? What accounts for our repugnance to man - for there is no question that he makes us suffer? Certainly not our fears of him, rather the fact that there is no longer anything to be feared from him; that the vermin 'man' occupies the entire stage [again, a proto-Nazi phrase...]; that tame, hopelessly mediocre, and savorless, he considers himself the apex of historical evolution; and not entirely without justice, since he is still somewhat removed from the mass of sickly and effete creatures whom Europe is beginning to stink of today."

Paragraph xii:

“Here I want to give vent to a sigh and a last hope. Exactly what is it that I, especially, find intolerable, that I am unable to cope with; that asphyxiates me? a bad smell. The smell of failure, of a soul that has gone stale. “ He elaborates this revulsion in paragraphs xii, xiii and especially xiv.

Heidegger, Strauss and other European fascists did not misunderstand this theme of Nietzsche; quite the contrary, in this respect, Nietzsche founds European fascism and licenses (not, in extenuation, that he could foresee this) its massacres of innocents. ****

Nietzsche was also a brilliant psychologist and an often magnificent writer; nonetheless, his influential idea of master “morality” is sordid, and if enacted, monstrous. The idea that a great soul, a master, relies on millions of slaves and sheds their lives to flourish, like the parasitic vine sipo matador in the sun high above the Malaysian forest (Jenseits Gut und Bose – Beyond Good and Evil, paragraph 258) denies the value of each human life. The sacrifice of millions for the advancement of the few is mass murder, not a moral point of view (hilariously, Strauss repeatedly refers to “the young nihilists” standpoint – his own – in his 1941 lecture, never given at New School, as “moral” and “decent”…(see Altman, ch. 6).

But defense of at least the life of each human is the core of a decent response to Aristotle’s core question: what is a good life for humans? Life is not yet a good life, and moderns have many apt differences with Aristotle (see my Democratic Individuality, ch 1), but the idea that there is no integrity to ethics, that mass murder and exploitation are part of a “moral” point of view, that ethics is just subjective or “phenomenological” and thus, whatever one happens to believe (“Himmler was a decent man…”), is incoherent. Following Nietzsche, this claim confuses an interesting sociological and etymological point - that there was a different kind of ethic in aristocratic times in the ancient world and that this has been replaced a new one now assumed to be general - with a reasonable, ethical examination of which of these two “ethics,” if either, is in fact decent for human beings. Taken at face value, it is evil (mass murder of the last men whose lives are worthless – wertlos – in the phrase of Nazi doctors) or in Nietzsche’s case, an instigation to it... ******

Enacting this confusion, existentialists starting with Heidegger tend to take Nietzsche seriously on this point about ethics, even Sartre and his American followers like Robert Solomon (in a series on existentialism on the web, Solomon offers a lecture on Genealogy of Morals which entirely empathizes with Nietzsche’s scorn for the idea that the “great” exploit the “weak,” and suggests that what we mean by morality is but the idea of the weak, the impotent, those who merely react to the master’s initiative, and, thus, forgetting himself completely, that there is no serious moral objection to slavery…

But is there no moral objection to holding a man or woman in servitude for a lifetime, tossing her life away on a whim? No argument that a system that rules out slavery is superior to that of slave-owners? See my Democratic Individuality, ch. 1.

For Heidegger and other fascists, including Strauss and many of his political followers (Werner Dannhauser, for example), refer routinely to the “last men” who are our fellow citizens and us, and ostensibly need, for the sake of “seriousness” in life – war and the preparation for war – to be dispensed with.*******

As Occupy shows, they mistake the actual and potential fortitude and fierceness of the nonviolent who organize a movement to stop them.

The idea that it would be good to get rid of the last men (see the last sentences of Strauss’s "Restatement" on On Tyranny******** ) is simply false and if taken seriously, monstrous. Even Altman (who is a Platonist), mistakenly takes Nietzsche to have a serious argument about ethics whereas instead, he has an interesting sociology or phenomenology of morals coupled with a psychology which sometimes identifies moralisms (people who suffer oppression are also sometimes resentful). But his claim, as it were, that apartheid is not injustice, that blacks merely “resented” it, or that Desmond Tutu and Nelson Mandela were “steeped in resentment” disintegrates with the example.

Tutu and Mandela are rather models for political healing, once the injustice was ended, and provide a far deeper understanding of the grain of truth in Nietzsche’s thought about eternal recurrence than Nietzche himself or any of his followers…See Tutu, No future without forgiveness.

The Guantánamo facility at 10: an assault on our constitutional government

Todd E. Pierce

The National Law Journal

January 10, 2012

The 10th anniversary of the opening of Guantánamo Bay, Cuba, as a detention facility and the diversion of terrorism prosecutions into a new military commission system is now upon us. Consequently, I thought I would take this opportunity to briefly explain why I, an Army Reserve Judge Advocate General officer with more than 30 years of active and reserve military service, would volunteer as defense counsel for prisoners being held there.

I might add that I consider myself to be a conservative. In the United States of America, that means to conserve the legal order that this nation was founded upon, the Constitution. In fact, as a member of the military, I took an oath to defend the Constitution against all enemies, foreign and domestic. I did not take an oath of allegiance to the "leader," or to the "state," as required in some other nations. Thus, it came as something of a shock to me when Alberto Gonzalez, John Yoo and Robert Delahunty began issuing legal opinions that the Geneva Conventions, a treaty incorporated into our law, were quaint and did not apply, or that the president could, at his or her sole discretion, suspend them.

I will admit a particular sensitivity to the enforcement of the Geneva Conventions as my father, along with thousands of other American and Philippine prisoners of war, survived the Bataan Death March. This was despite the best efforts of soldiers who set aside the Geneva Convention of 1929 because of their oath of allegiance to the Japanese emperor. Following that war, my father's former captors and their legal advisers were put on trial and convicted of war crimes, including waterboarding and punishing prisoners without fair trials, as required under the 1929 Geneva Convention. This treaty was replaced by the Four Geneva Conventions of 1949 due to the mistreatment of prisoners like my father.

Back in 2001 and 2002, when these legal opinions were being issued, astute critics immediately recognized that these opinions were regurgitated leftovers of President Richard Nixon's belief that if the president did something, it could not be illegal — the dictator's prerogative. But this crude anti-American notion had been refined into the "unitary executive theory." Vice President Richard Cheney seemed to take credit for it. But more astute commentators noted that these ideas were actually legal theories expounded by Carl Schmitt, the Nazi "Crown Jurist" of the 1930s. But that seemed a little extreme, or at least bad manners, to point out.

Once the unitary-executive theory began to gain credibility, other advocates of this form of government came out of the shadows, perhaps from "the dark side." One was Harvard Professor Harvey Mansfield in The Wall Street Journal in 2007, who opined about the benefits of "one man rule." But it remained to two law professors, dedicated to the study of arcane legal texts, Adrian Vermeule of Harvard Law School and Eric Posner of the University of Chicago Law School, to openly resurrect Schmitt's authoritarian legal ideology. Or, as they put it, "political theorists interested in emergency powers, and some academic lawyers as well, are much taken with Schmitt; nearly every discussion of emergencies pores over the canonical texts yet again."

In fairness to Vermeule and Posner, leaving them to pore over the Nazi's canonical texts, it should be remembered that Schmitt was not a founder of the Nazi movement. Schmitt only joined the Nazi party when it triumphed over its rival elements in the German military establishment. Schmitt had been legal adviser to those rivals, particularly General Kurt von Schleicher. But what should equally be remembered is that this military faction was seeking to impose its own brand of militaristic dictatorship on Germany, along with an expansionistic foreign policy. These German generals aspired to the form of governance most recently practiced by the dictator Hosni Mubarak and the Egyptian Supreme Council of the Armed Forces.

Schmitt's writings consistently were an apologia for dictatorship and centralized power, whether under military dictatorship of the German High Command or under the Nazis, having further developed his ideas from his book, Die Diktatur. These ideas culminated in 1934, when he justified the murders following the "Night of the Long Knives" as the "highest form of administrative law." Most odiously, he legitimated the authority of Hitler afterward with a paean translated in English as "The Leader Defends the Law."

In Terror in the Balance, Posner and Vermeule argued that the threat of terrorism constitutes a state of emergency necessitating the suspension of our Constitution. Consequently, "Constitutional rights should be relaxed so that the executive can move forcefully against the threat. If dissent weakens resolve, then dissent should be curtailed. If domestic security is at risk, then intrusive searches should be tolerated." Posner and Vermeule followed this in 2010 withThe Executive Unbound: After the Madisonian Republic. Cribbed from Schmitt's Legality and Legitimacy, it seeks to legitimize the administrative state of the sort Schmitt worked to create. Any concern with this centralization of power in our system is dismissed as "tyrannophobia." Evidently, a mental disorder that our founders were afflicted with. As in Schmitt's "dual state," they seek to move us toward a constitutional breakdown through the creation of an administrative state under the exclusive control of the executive, "the Extraordinary Lawgiver" in Schmitt's terminology. Or as Posner and Vermeule ask and answer: "What comes after the Madisonian regime of liberal legalism and the separation of powers? Our answer is a new political order in which government is centered on the executive."

Why does all of this matter? In part, because constitutions and constitutional ideas matter. As evident in Yoo and Delahunty's legal memos asserting unitary executive authority, the legal theory underpinning Guantánamo and the military commissions were an assault upon the structure of our form of constitutional government; lawfare. It was not the inevitable conclusion required by the Sept. 11 attacks, but the exploitation of a tragedy to import a foreign legal ideology, a legal bacillus, into our legal system.

But it matters also because on this 10th anniversary, Guantánamo and the military commissions are metastasizing into our whole legal system. As the French war against the anti-colonialist insurgents of Algeria highlighted, the growing disrespect for "legal niceties" would come to be applied in France itself against political adversaries. Could that happen here? Posner and Vermeule suggest that dissent to policy may need to be controlled, that is, free speech curtailed. Putting aside the potential for misuse against political enemies, is that even desirable for national security? Our allowance of dissent led to our withdrawal from the Vietnam War before the collapse of our economy which, with hindsight, few question any more. Contrast that with the Soviet Union's defeat and total collapse resulting from its war in Afghanistan, purely at the insistence of the Communist leadership.

We have used the vague and overbroad charge of "material support for terrorism" as cause to investigate anti-war groups in Chicago and Minneapolis, predictably chilling speech and dissent. Critics have suggested that recent legislation passed would now require the military to detain such dissidents. Or what about gun store owners, gun manufacturers and the National Rifle Association, all of whom could be accused of having a hand directly or through propaganda in providing firearms downstream to drug cartels in Mexico, alleged to have ties with Mideast terrorist groups? Military detention for them?

We must ask ourselves, because we are passing this nation on to our children and their children: Were the authors of the American Constitution wrong or suffering from a mental disorder (tyrannophobia as described) in believing that blind faith was not sufficient as a bulwark against incompetence, if not tyranny? My father and my uncles, along with the rest of the Greatest Generation, did not think so when they fought against the political ideas of Carl Schmitt in World War II. I think Schmitt's ideas are still worth fighting against today.

Todd E. Pierce is a major in the U.S. Army and has been assigned to the Office of the Chief Defense Counsel since 2008. The views expressed are solely those of the author and do not reflect the official policy or position of the Department of Defense or the U.S. government.

· * I have previously noted the role of Sam Madison, another Pentagon defense attorneys fighting for law. Many of these lawyers really have put themselves on the front line of fighting of Anglo-American justice against the emerging police state, exemplified in the legal black hole of Guantanamo…

**Leo Strauss has a far sharper depiction in his lectures on Aristotle which I tracked, with the help of Mike Goldfield, in "Do Philosophers Counsel Tyrants?," Constellations, March, 2009 here. Finding this hidden message is the source of Heidegger’s and Strauss's reactionary misinterpretation of Plato: that the regimes that decline from philosopher king to tyrant must be made “perfect and a circle” (kuklos), in Aristotle’s words, by a tyrant of a certain kind becoming a philosopher-king.

***See Strauss, "Introduction to [Heideggeriian] Existentialism” and Altman’s instructive ch. 4.

*****The psychology is, sadly, not a feature which influences, for instance, Foucault or Strauss or Heidegger, but one which shook Freud who was superstitious about reading Nietzsche because he was afraid he would find all of his insights already named…

******That Fred was personally an admirable character himself as well as a magnificent writer is true. That these facts rule out the hideous political impact of his views in Europe is false

*******Altman pursues the theme of how Strauss and Heidegger hypocritically shirked World War I while (guiltily?) invoking “manliness” (cf. Harvey Mansfield’s book of that title and his interview with Stephen Colbert where he indicts the unmanliness of Kerry and praises the manliness of Bush – who flew planes for the National Guard and then ducked out even of that, in a war he believed in here) for the rest of us.

Of course they believed in the wars they avoided, whereas opposition to unjust wars, notably civil disobedience, is courageous and willing to pay a price…. In avoidance, they emulated Cheney who had “other things to do” and many neocons who supported recent American aggressions.

********In the peroration of his “Restatement” in On Tyranny, speaking elliptically in the voice of “another,” a courageous nihilist, and joking about Marxism, Strauss was happy with the idea as opposed to the last men and “universal tyranny of technology” that rebellion and nuclear war might produce a “new spring” of stone age humanity:

“There will always be men [andres] who will revolt against a state which is destructive of humanity or in which there is no longer the possibility of noble action or of great deeds. They may be forced into a mere negation of the universal and homogeneous state, into a negation not enlightened by any positive goal, into a nihilistic negation. While perhaps doomed to failure, that nihilistic revolution may be the only action on behalf of man’s humanity, the only great and noble deed that is possible once the universal and homogeneous state has become inevitable. But no one can know whether it will succeed or fail. We still know too little about the workings of the universal and homogeneous state to say anything about where and when its corruption will start. What we do know is only that it will perish sooner or later (see Friedrich Engels, Ludwig Feuerbach). Someone may object that the successful revolt against the universal and homogeneous state could have no other effect than that the identical historical process that has led from the primitive horde to the final state will be repeated. But would such a repetition of the process – a new lease on life for man’s humanity – not be preferable to the indefinite continuation of the inhuman end? Do we not enjoy every spring although we know the cycle of the seasons, although we know that winter will come again? Warriors and workers of all countries, unite, while there is still time to prevent the coming of ‘the realm of freedom.’ Defend with might and main, if it needs to be defended, the ‘realm of necessity ”- On Tyranny, 209.

As the first non-Straussian admitted to Regenstein, I discovered Strauss’s memos to future Senator and would-be Republican presidential candidate Charles Percy; to read them in the context of this conclusion is frightening. For instance, on October 24, 1961, Strauss recommends a merciless conquest of Cuba which he thinks will cow the Soviet Union into submission. His words seek a Nietzschean or Heideggerian depth about eschewing the fight against poverty which opposes modern liberalism and radicalism:

“There cannot be a modus vivendi until Russia abandons Communism, in the sense that it ceases to act on the premises of Communism; for it is utterly uninteresting to us and the rest of the non-Communist world whether the Russians go on paying lip-service to Communism, provided they have become convinced that the Free World is here to stay, and they act on this conviction. To bring about this change of mind, the West must be as tough and, if need be, as brutal as the Communists are to the West. The West must demonstrate to the Communists, by words and deeds which allow no possibility of error, that they must postpone forever the establishment of the Communist world society.

But the modus vivendi demands also a radical change on our part – a change of outlook or expectations which will necessarily issue in a change of policies. I can only speak of the change of outlook. Hitherto the West has believed in the possibility of a perfectly just society (federationist or unitary) comprising all mankind – a society rendered possible in the first place by universal affluence and ultimately by the increase in human power to be brought about by technology or science. Everyone has now become aware of the fact that the great enterprise which was meant to bring about the abolition of misery, has in fact brought about what we may call the absolute misery: namely the possibility that, so to speak, a single tyrant can destroy the human race. We must rethink radically the expectation which has pervaded our thoughts and actions in all domains, that the human condition is thinkable without the accompaniment of misery. By this I do not deny that it is the duty of humanity to relieve misery wherever one can [an exoteric remark, for Percy].”

After the Cuban missile crisis and the narrowest miss at nuclear war (Cuba had over 100 armed nuclear missiles of which the Kennedy administration was unaware), Strauss wrote on February 12, 1963:

“Dear Mr. Percy,

I believe that the following points have not been made, or at least have not been made with sufficient audibility: 1) To speak in the only language which Khrushchev understands, Cuba is our Hungary; just as we did not make the slightest move when he solved the problem in his back yard, Hungary, he cannot, and will not make the slightest move if and when we take care of the problem in our back yard, Cuba.”

Compare Minowitz, Straussophobia, pp. 80-82

Crime - torture - and punishment

2012-01-20T19:21:00.001-08:00

A small item from the Miami Herald, one of the McClatchy newspapers, the only papers that did serious coverage of the lies involved in the Iraq aggression, but have no publications for the “important people” in Washington and New York, talks of the torture and rape of three Frenchmen picked up by the United States in 2001 and held for four years in Guantanamo. The pictures of rape at Abu Ghraib were one of the things that shocked even Rumsfeld – as the SecDef reported of seeing the photographers, perhaps bringing home to him for a moment who he was, a war criminal (with the legal doctrine of command responsibility, the US executed Japanese generals who had not explicitly warned their troops against committing war crimes...).

Over a hundred prisoners were murdered in the course of torture, in American custody, according to the Pentagon (see “Taxi to the Dark Side” concerning the murder of Mr. Dilawar)...

It is the third international judicial inquiry into American war crimes, the article reports, in the past week. The Convention against Torture, here, though international law and American law (signed by President Reagan, ratified by Congress, part of the highest law of the land under Article 6, Section 2 of the Constitution, the Supremacy Clause) may be ducked by the Obama administration as well as the Bush administration, but European judges do not agree.

Will the Obama administration provide Judge Sophie Clement with the secret records from Guantanamo she is asking for?

If it does not, will the provision about what happens when a national court refuses to prosecute grave crimes be brought into effect, and will international courts move, even more determinedly, against American war criminals?

Bush and Cheney and Rumsfeld and Rice, the formerly well-travelled Secretary of State, and Gonzaelz and Yoo among others, can no longer go abroad. See here, here, here, here and here.

They occasionally tour in the United States, make book sales, face demonstrations (in classrooms at Stanford and Berkeley or at Auraria in Denver or at the University of Virginia or at the American Political Science Association, or as with Bush in Montreal…), and perhaps have odd dreams

Drip, drip, drip…

Report: French judge wants to probe Guantanamo torture claims

Related Content
• Spanish judge reopens Guantanamo torture probe
BY CAROL ROSENBERG
MIAMI HERALD

GUANTANAMO BAY NAVY BASE, Cuba — A French judge is seeking U.S. permission to visit the prison camps here to investigate claims by former French inmates that they were tortured, the Associated Press reported from Paris on Tuesday.

The AP reported that it saw a formal international request from investigating judge Sophie Clement to U.S. authorities to see the prison here that Tuesday held 171 captives, none of them French citizens. Clement also seeks copies of all documents relating to the arrest and transfer of three Frenchmen who were held there.

The three men are Nizar Sassi, now 31, Mourad Benchellali, now 30, and Khaled Ben Mustapha, now 40. They were arrested on the Afghanistan-Pakistan border in late 2001 and transferred to Guantánamo. They were sent back to France in 2004 and 2005, held for a time for trial there, but then released.

The men told the judge during questioning in France that they were subject to violence including torture and rape during their detention.

At Guantánamo, a Pentagon spokesman, Army Lt. Col. Todd Breasseale said it was not immediately known whether U.S. officials had received the request.

The request is the third indication in less than a week that international authorities have renewed their interest in the legality of Bush-era policies on the treatment of war-on-terror captives. On Friday, a Spanish judge decided to go forward with torture investigations involving four other former Guantanamo captives now living in Europe, one day after British authorities said they would probe British links to a CIA-organized rendition program that delivered opponents of now dead Libyan leader Moammar Gadhafi to Libya, where they allege they were tortured.

Poem: kin g of fears

2012-01-19T07:31:00.000-08:00

1

I wrote my parents
of the anti-nuclear march
in Washington
freedom ride
to Chestertown
explosions of silvering
world and glass
so fragile in our hands

(not of clumsy love
ardent and fragile
on the trip back)

my dad – HARVARD WORLD BANK FORD
advisor to dictator Ayub Khan –
dictated a letter
“you’re a fresh ma n
think
don’t act
there’s so much

not yet Montaigne
nonchalant among cabbages
I wonder

will the world
outlive its gardens

2

that summer in Pakistan
sun soaked
my father’s house
Taj – man of many languages
and hopes for his son –
served the meal

five other servants
moved quietly
behind the doors
and in Karachi gardens
where the cobras glide

naga
hooded king of fears
rears
fanged flower among flowers

“aren’t you a socialist?”
my father asked,
“every on e
should be a socialist

when young”

Tucson: "I am a decent writer, burn mine..."

2012-01-17T08:37:00.000-08:00

If one builds a wall to keep latinos out of the United States, if racist militias hunt in the desert the immigrants who do the hardest work of the United States, if Alabama passes fierce immigration policing that drives the farm laborers out of the state and causes the crops to rot, the farm owners (when still ordinary people or “small businesses”) despairing and going out of business, how can the mind be far behind?

Texas last year – it’s state “school” committee, dominated by people who do not value what is decent about the United States, let alone read – banned the teaching of Thomas Jefferson, author of the Declaration of Independence, from history in the public schools…

Texas is a big market. Text book companies, seekers of profit, are now adapting and will put out books without each person’s natural right to life, liberty and the pursuit of happiness…

In South Africa under apartheid, McGraw Hill published 40 books with titles such as Managing Black Workers. Teachers and students demonstrated and protested against McGraw Hill, including me (I was in demonstrations against the sale of the Kruggerrand – an apartheid gold coin - in Denver, and attacked by KMGH, ch. 7, owned by McGraw Hill, as a “dangerous radical” teaching at the University of Denver... That was the year before I came up for tenure).

The new textbooks, excluding Jefferson, will not be different in Mississippi or Delaware...

And now, in Tucson, the books of Leslie Marmon Silko and Henry David Thoreau are banned and no one may teach about the children dying in the desert. No oppression exists, the State says – teachers may not speak to students about anything but that Chicanos (citizens and immigrants) are as likely to be employed as whites or not beaten or shot by the police. A “Dream Act” is not needed for any who live in America and study hard and would, of course, be allowed to go to college and join the military (to march and impose Tucson’s values at gun point elsewhere) – just ask Mitt Romney…

Columbus did not murder the Taino in his search for non-existent gold on Hispaniola and there is no truth to be told about the disappearance of the indigenous population, greeting him Eden-like (Columbus’s words) in 1492, by 1523...

And the books of the Maya were not burned at Mani, Yucatan in 1562.

Shakespeare’s Tempest was not banned in these “public” schools...

Corky Gonzalez was not banned in these “schools”…

Sherman Alexie…

Books were seized from Tucson classrooms, “out of the students’ hands…” Students report trouble sleeping

Bertolt Brecht’s short poem of a writer, who ran defiantly to the Nazi book fires, shouting “I am a good writer. Burn mine…” and threw his novel on the pile, fits Tucson and America.

Texas and Arizona are no small part of the American territory…

Remember that Mayor Bloomberg's police destroyed the library of 5,000 books, down to the last one, in Zuccotti Park...

If the books are burned, can the students be far behind?

Every one who has a voice should find a way to make it heard…

(h/t Jack Womack)

Tucson Schools Bans Books by Chicano and Native
American Authors

List of Books Being Banned

by Brenda Norrell

The Narcosphere January 14, 2012

http://narcosphere.narconews.com/notebook/brenda-norrell/2012/01/tucson-schools-bans-books-chicano-and-native-american-authors

Breaking news: Updated Sunday with response from banned
author Roberto Rodriguez

TUCSON -- Outrage was the response to the news that
Tucson schools has banned books, including "Rethinking
Columbus," with an essay by award-winning Pueblo author
Leslie Marmon Silko, who lives in Tucson, and works by
Buffy Sainte Marie, Winona LaDuke, Leonard Peltier and
Rigoberta Menchu.

The decision to ban books follows the 4 to 1 vote on
Tuesday by the Tucson Unified School District board to
succumb to the State of Arizona, and forbid Mexican
American Studies, rather than fight the state decision.

Students said the banned books were seized from their
classrooms and out of their hands, after Tucson schools
banned Mexican American Studies, including a book of
photos of Mexico. Crying, students said it was like
Nazi Germany, and they were unable to sleep since it
happened.

The banned book, "Rethinking Columbus," includes work
by many Native Americans, as Debbie Reese reports, the
book includes:

Suzan Shown Harjo's "We Have No Reason to Celebrate"
Buffy Sainte-Marie's "My Country, 'Tis of Thy People
You're Dying" Joseph Bruchac's "A Friend of the
Indians" Cornel Pewewardy's "A Barbie-Doll Pocahontas"
N. Scott Momaday's "The Delight Song of Tsoai-Talee"
Michael Dorris's "Why I'm Not Thankful for
Thanksgiving" Leslie Marmon's "Ceremony" Wendy Rose's
"Three Thousand Dollar Death Song" Winona LaDuke's "To
the Women of the World: Our Future, Our Responsibility"

The now banned reading list of the Tucson schools'
Mexican American Studies includes two books by Native
American author Sherman Alexie and a book of poetry by
O'odham poet Ofelia Zepeda.

Jeff Biggers writes in Salon:

The list of removed books includes the 20-year-old
textbook "Rethinking Columbus: The Next 500 Years,"
which features an essay by Tucson author Leslie Silko.
Recipient of a Native Writers' Circle of the Americas
Lifetime Achievement Award and a MacArthur Foundation
genius grant, Silko has been an outspoken supporter of
the ethnic studies program.

Biggers said Shakespeare's play "The Tempest," was also
banned during the meeting this week. Administrators
told Mexican-American studies teachers to stay away
from any class units where "race, ethnicity and
oppression are central themes."

Other banned books include "Pedagogy of the Oppressed"
by famed Brazilian educator Paolo Freire and "Occupied
America: A History of Chicanos" by Rodolfo Acuna, two
books often singled out by Arizona state superintendent
of public instruction John Huppenthal, who campaigned
in 2010 on the promise to "stop la raza." Huppenthal,
who once lectured state educators that he based his own
school principles for children on corporate management
schemes of the Fortune 500, compared Mexican-American
studies to Hitler Jugend indoctrination last fall.
http://www.salon.com/2012/01/13/whos_afraid_of_the_tempest/singleton/

Bill Bigelow, co-author of Rethinking Columbus, writes:

Imagine our surprise. Rethinking Schools learned today
that for the first time in its more-than-20- year
history, our book Rethinking Columbus was banned by a
school district: Tucson, Arizona ...

As I mentioned to Biggers when we spoke, the last time
a book of mine was outlawed was during the state of
emergency in apartheid South Africa in 1986, when the
regime there banned the curriculum I'd written,
Strangers in Their Own Country, likely because it
included excerpts from a speech by then- imprisoned
Nelson Mandela. Confronting massive opposition at home
and abroad, the white minority government feared for
its life in 1986. It's worth asking what the school
authorities in Arizona fear today.
http://rethinkingschoolsblog.wordpress.com/2012/01/13/
rethinking-columbus-banned-in-tucson

Roberto Rodriguez, professor at University of Arizona,
is also among the nation's top Chicano and Latino
authors on the Mexican American Studies reading list.
Rodriguez' column about this week's school board
decision, posted at Censored News, is titled: "Tucson
school officials caught on tape 'urinating' on Mexican
students." http://drcintli.blogspot.com/

Rodriguez responded to Narco New about the ban on
Sunday.

"The attacks in Arizona are mind-boggling. To ban the
teaching of a discipline is draconian in and of itself.
However, there is also now a banned books list that
accompanies the ban. I believe 2 of my books are on the
list, which includes: Justice: A Question of Race and
The X in La Raza. Two others may also be on the list,"
Rodriguez said.

"That in itself is jarring, but we need to remember the
proper context. This is not simply a book-banning;
according to Tom Horne, the former state schools'
superintendent who designed HB 2281, this is part of a
civilizational war. He determined that Mexican American
Studies is not based on Greco-Roman knowledge and thus,
lies outside of Western Civilization.

"In a sense, he is correct. The philosophical
foundation for MAS is a maiz-based philosophy that is
both, thousands of years old and Indigenous to this
continent. What has just happened is akin to an Auto de
Fe -- akin to the 1562 book- burning of Maya books in
1562 at Mani, Yucatan. At TUSD, the list of banned
books will total perhaps 50 books, including artwork
and posters.

"For us here in Tucson, this is not over. If anything,
the banning of books will let the world know precisely
what kind of mindset is operating here; in that
previous era, this would be referred to as a reduccion
(cultural genocide) of all things Indigenous. In this
era, it can too also be see as a reduccion."

The reading list includes world acclaimed Chicano and
Latino authors, along with Native American authors. The
list includes books by Corky Gonzales, along with
Sandra Cisneros' "The House on Mango Street;" Jimmy
Santiago Baca's "Black Mesa Poems," and L.A. Urreas'
"The Devil's Highway." The authors include Henry David
Thoreau and the popular book "Like Water for
Chocolate."

On the reading list are Native American author Sherman
Alexie's books, "Ten Little Indians," and "The Lone
Ranger and Tonto Fist Fight in Heaven." O'odham poet
and professor Ofelia Zepeda's "Ocean Power, Poems from
the Desert" is also on the list.

DA Morales writes in Three Sonorans, at Tucson Citizen,
about the role of state schools chief John Huppenthal.
"Big Brother Huppenthal has taken his TEA Party vows to
take back Arizona...take it back a few centuries with
official book bans that include Shakespeare!"

http://tucsoncitizen.com/three-sonorans/2012/01/13/did-
you-know-even-shakespeare-got-banned-from-tusd-with-mas
-ruling/

Updates at www.bsnorrell.blogspot.com

[Brenda Norrell has been a news reporter in Indian
country for 29 years. She is publisher of Censored
News, focusing on Indigenous Peoples, human rights and
the US border. Now censored by the mainstream media,
she previously was a staff reporter at numerous
American Indian newspapers and a stringer for AP, USA
Today and others. She lived on the Navajo Nation for 18
years, and then traveled with the Zapatistas. She
covered the climate summits in Cochabamba, Bolivia, and
Cancun, Mexico, in 2010.]

==========

BANNED MEXICAN AMERICAN STUDIES READING LIST Curriculum
Audit of the Mexican American Studies Department,
Tucson Unified School District, May 2, 2011.
http://www.bsnorrell.blogspot.com/

High School Course Texts and Reading Lists Table 20:
American Government/Social Justice Education Project 1,
2 - Texts and Reading Lists

Rethinking Columbus: The Next 500 Years (1998), by B.
Bigelow and B. Peterson

The Latino Condition: A Critical Reader (1998), by R.
Delgado and J. Stefancic

Critical Race Theory: An Introduction (2001), by R.
Delgado and J. Stefancic

Pedagogy of the Oppressed (2000), by P. Freire

United States Government: Democracy in Action (2007),
by R. C. Remy

Dictionary of Latino Civil Rights History (2006), by F.
A. Rosales

Declarations of Independence: Cross-Examining American
Ideology (1990), by H. Zinn

Table 21: American History/Mexican American
Perspectives, 1, 2 - Texts and Reading Lists

Occupied America: A History of Chicanos (2004), by R.
Acuna

The Anaya Reader (1995), by R. Anaya

The American Vision (2008), by J. Appleby et el.

Rethinking Columbus: The Next 500 Years (1998), by B.
Bigelow and B. Peterson

Drink Cultura: Chicanismo (1992), by J. A. Burciaga

Message to Aztlan: Selected Writings (1997), by C.
Jiminez

De Colores Means All of Us: Latina Views Multi-Colored
Century (1998), by E. S. Martinez

500 Anos Del Pueblo Chicano/500 Years of Chicano
History in Pictures (1990), by E. S. Martinez

Codex Tamuanchan: On Becoming Human (1998), by R.
Rodriguez

The X in La Raza II (1996), by R. Rodriguez

Dictionary of Latino Civil Rights History (2006), by F.
A. Rosales

A People's History of the United States: 1492 to
Present (2003), by H. Zinn

Course: English/Latino Literature 7, 8

Ten Little Indians (2004), by S. Alexie

The Fire Next Time (1990), by J. Baldwin

Loverboys (2008), by A. Castillo

Women Hollering Creek (1992), by S. Cisneros

Mexican WhiteBoy (2008), by M. de la Pena

Drown (1997), by J. Diaz

Woodcuts of Women (2000), by D. Gilb

At the Afro-Asian Conference in Algeria (1965), by E.
Guevara

Color Lines: "Does Anti-War Have to Be Anti-Racist
Too?" (2003), by E. Martinez

Culture Clash: Life, Death and Revolutionary Comedy
(1998), by R. Montoya et al.

Let Their Spirits Dance (2003) by S. Pope Duarte

Two Badges: The Lives of Mona Ruiz (1997), by M. Ruiz

The Tempest (1994), by W. Shakespeare

A Different Mirror: A History of Multicultural America
(1993), by R. Takaki

The Devil's Highway (2004), by L. A. Urrea

Puro Teatro: A Latino Anthology (1999), by A. Sandoval-
Sanchez & N. Saporta Sternbach

Twelve Impossible Things before Breakfast: Stories
(1997), by J. Yolen

Voices of a People's History of the United States
(2004), by H. Zinn

Course: English/Latino Literature 5, 6

Live from Death Row (1996), by J. Abu-Jamal

The Lone Ranger and Tonto Fist Fight in Heaven (1994),
by S. Alexie

Zorro (2005), by I. Allende

Borderlands La Frontera: The New Mestiza (1999), by G.
Anzaldua

A Place to Stand (2002), by J. S. Baca

C-Train and Thirteen Mexicans (2002), by J. S. Baca

Healing Earthquakes: Poems (2001), by J. S. Baca

Immigrants in Our Own Land and Selected Early Poems
(1990), by J. S. Baca

Black Mesa Poems (1989), by J. S. Baca

Martin & Mediations on the South Valley (1987), by J.
S. Baca

The Manufactured Crisis: Myths, Fraud, and the Attack
on America's Public Schools (19950, by D. C. Berliner
and B. J. Biddle

Drink Cultura: Chicanismo (1992), by J. A Burciaga

Red Hot Salsa: Bilingual Poems on Being Young and
Latino in the United States (2005), by L. Carlson & O.
Hijuielos

Cool Salsa: Bilingual Poems on Growing up Latino in the
United States (1995), by L. Carlson & O. Hijuielos

So Far From God (1993), by A. Castillo

Address to the Commonwealth Club of California (1985),
by C. E. Chavez

Women Hollering Creek (1992), by S. Cisneros

House on Mango Street (1991), by S. Cisneros

Drown (1997), by J. Diaz

Suffer Smoke (2001), by E. Diaz Bjorkquist

Zapata's Discipline: Essays (1998), by M. Espada

Like Water for Chocolate (1995), by L. Esquievel

When Living was a Labor Camp (2000), by D. Garcia

La Llorona: Our Lady of Deformities (2000), by R.
Garcia

Cantos Al Sexto Sol: An Anthology of Aztlanahuac
Writing (2003), by C. Garcia-Camarilo, et al.

The Magic of Blood (1994), by D. Gilb

Message to Aztlan: Selected Writings (2001), by Rudolfo
"Corky" Gonzales

Saving Our Schools: The Case for Public Education,
Saying No to "No Child Left Behind" (2004) by Goodman,
et al.

Feminism if for Everybody (2000), by b hooks

The Circuit: Stories from the Life of a Migrant Child
(1999), by F. Jimenez

Savage Inequalities: Children in America's Schools
(1991), by J. Kozol

Zigzagger (2003), by M. Munoz

Infinite Divisions: An Anthology of Chicana Literature
(1993), by T. D. Rebolledo & E. S. Rivero

...y no se lo trago la tierra/And the Earth Did Not
Devour Him (1995), by T. Rivera

Always Running - La Vida Loca: Gang Days in L.A.
(2005), by L. Rodriguez

Justice: A Question of Race (1997), by R. Rodriguez

The X in La Raza II (1996), by R. Rodriguez

Crisis in American Institutions (2006), by S. H.
Skolnick & E. Currie

Los Tucsonenses: The Mexican Community in Tucson,
1854-1941 (1986), by T. Sheridan

Curandera (1993), by Carmen Tafolla

Mexican American Literature (1990), by C. M. Tatum

New Chicana/Chicano Writing (1993), by C. M. Tatum

Civil Disobedience (1993), by H. D. Thoreau

By the Lake of Sleeping Children (1996), by L. A. Urrea

Nobody's Son: Notes from an American Life (2002), by L.
A. Urrea

Zoot Suit and Other Plays (1992), by L. Valdez

Ocean Power: Poems from the Desert (1995), by O. Zepeda

==========

The importance of words

2012-01-12T09:46:00.000-08:00

10 years of now infamous torture by the United States at Guantanamo, the horror at least of indefinite detention continues, and the criminals responsible are subject to no hearing or investigation. Of course, they, the former President, the Vice President, the Pentagon secretary, and my former student, the well-traveled Secretary of State, inter alia, can no longer go abroad. See here, here and here. Under Reagan and then the 1994 Congress, the United States has signed and ratified the Convention against Torture which bars torture in any circumstance. It calls for prosecution of torturers in the country responsible. See here. Obama has thus made himself the accomplice of Bush and the others by not pursuing such prosecutions as well as the torture, stopped under protest after 9 months, of Bradley Manning.

Witness against Torture has acted courageously against Guantanamo. Matt Daloisio sent me a newsletter about the heroic protests of people, including hunger strikes, in Washington against the continuing – still, 10 years later – crimes at Guantanamo, the prisoners detained, often mistakenly, and in any case, illegally, indefinitely – like the man in the iron mask with no future. But of course, Guantanamo creates a future of justified hatred for the United States; it nurtures enmity. Now, Arab Spring has blown a great breath of fresh air through movements in the Middle East (rendered Al-Qaida ineffectual) and inspired international protests – particularly the Occupy movements – which need to learn that torture and aggression, leading crimes of the 1% - must be stopped.

The New York Times has led the way in 1984 style misuse of words. For instance, water-boarding has been recognized as torture since the Inquisition and has long been barred under international treaties – the Geneva Conventions (styled “quaint” by the war criminal Alberto Gonzalez – see here) and the Convention against Torture – and American law (Article 6, section 2 of the Constitution, the Supremacy Clause, makes treaties signed by the United States the highest law of the land). When others commit torture – Iran, for example – the Times has no difficulty with ordinary English and names it. But when the US government does it, the Times' editor (now embarrassingly poking his head out as a columnist) encourages circumlocutions – “enhanced” or “harsh” or “brutal interrogations”…

What removed the crime? Cheney breathed on the Times' s editorship. Or to put it differently, he reminded the Times of its slogan “all the news that’s fit to print” – news that would name the American government in committing war crimes (see Richard Falk and Howard Friel, The Record of the Paper, which points out that in 50 years of American aggressions, for example in Vietnam, the Times does not allow the word – identifying a crime barred by Article 2 section 4 of the UN charter and which the Allied prosecutors led by later American Supreme Court Justice Robert L. Jackson, had indicted, tried and executed Nazi and Tokyo war criminals for – to be used in relation to American…aggressions

In addition to Matt’s reports which are very moving (and thus do not find their way into the Times), Iranian scientists, civilians, are being murdered (very likely by the increasingly police state Israeli government). When governments strike at civilians, with large and explosive displays (Masoud Ali Mohammedi was a fifty year old college teacher whose car was blown up), the message to all is clear. Though Israel is probably responsible, it could be the United States – and Santorum waxed on at one of the Republican debates explicitly about how the US government should murder Iranian scientists. The US under cleverer leaders, including Obama. tries to keep its murders of civilians with drones, for example, in a haze of denial. But none of it is secret (and the Democratic think-tank "experts" and pundits here like Roger Cohen , the neo-neo cons, still baying for drones and saying, murder of innocents by drone is superior to invasion, are refusing to look a) at the crime and b) at the fact that every drone that falls on civilians makes, justifiably, new enemies). In Pakistan or Yemen or Somalia, the innocents and their relatives all know who sent the drones.

The world cries out…

Santorum's criminal fecklessness compounds George W. Bush’s avowal of water-boarding last year....

The American elite becomes more and more crass, does not so much need phony or imitation words any longer, reaches for, gets high on criminality. “I am a torturer” says Bush brashly, “I did it to protect…you” [torture is repulsive and does the opposite]. Bush no longer blinks an eye… (though at night, it comes to him perhaps and he will not travel to Europe – he never liked travel anyway…).

Similarly, the murder of civilians is for the New York Times no longer a great crime of war (see Michael Walzer, Just and Unjust Wars). The US, under Obama, is supposedly not already engaged in covert operations, including murders, in Iran, or not looking the other way or secretly cooperating in, Israeli murders of civilians...

If the US, through bombing, commits a more full-scale aggression against Iran, it will reverse all the slow movement toward getting out of its occupations and new reliance on the largely secret Joint Special Operations Command (the new center of American military/intelligence policy, the folks who justly murdered Bin Laden, the mass murderer, but in their 12 operations a night - at least - murder a large number of civilians and innocents. And then there are the drones…

Even in the Bin Laden case, the US government was afraid of a trial and daylight, for its effects in American politics – the desperate fear of Republicans and Democrats that “criminals” might “be” on American soil (they do not hear their own shrill cowardice), the lack of confidence in a serious judicial and prison system in contrast to the trials of accused terrorists in Madrid and the actions of civilized countries, the reason why the special infamy of Guantanamo continues after 10 years and Obama’s promise, and finally, the possibility that Bin Laden, at trial, might have highlighted important and embarrassing matters, like his long cooperation with American crimes (the US set him to overthrow the pro-Soviet Afghan regime by terror).

If the US or Israel attacks Iran, the possibility of world war in the Middle East, with in the midterm, use of nuclear arms, becomes increasingly likely, the way back to a frail peace, darkened…

But the New York Times, as Glenn Greenwald and Andrew Sullivan relate below, will not name terror against civilians – the murder of Iranian scientists – as terror (since neither Israel nor the United States is at war with Iran, these incidents stand out for their horror). And today comes news of the assassination of Mostafa Ahmadi Roshana, a 32 year old nuclear scientist. The Times' frontpage headline “Bomb kills scientist” and no whisper of terror in the article. Who are the “terrorists”?

It was said long ago by Thucydides, describing the Athens’ led butchery of aristocrats taken out of sanctuary in temples in Corcyra that words change their meaning in war. What is rash becomes good counsel (Santorum as well as Romney’s speech in New Hampshire two nights ago –“ the US will have the strongest military which will prevent anyone from attacking the US” – talk about idle promises – and in a depression), what is sensible is ignored. The shifts in these words now about torture and terror is public corruption heading toward an end which Thucydides once named. It needs to be stopped.

Here is Thucydides on the dynamic in Corcyra:

"Words had to change their ordinary meaning and to take that which was now given them. Reckless audacity came to be considered the courage of a loyal ally; prudent hesitation, specious cowardice; moderation was held to be a cloak for unmanliness; ability to see all sides of a question, inaptness to act on any. Frantic violence became the attribute of manliness; cautious plotting, a justifiable means of self-defence. The advocate of extreme measures was always trustworthy; his opponent a man to be suspected. To succeed in a plot was to have a shrewd head, to divine a plot a still shrewder; but to try to provide against having to do either was to break up your party and to be afraid of your adversaries. In fine, to forestall an intending criminal, or to suggest the idea of a crime where it was wanting, was equally commended until even blood became a weaker tie than party, from the superior readiness of those united by the latter to dare everything without reserve; for such associations had not in view the blessings derivable from established institutions but were formed by ambition for their overthrow; and the confidence of their members in each other rested less on any religious sanction than upon complicity in crime. The fair proposals of an adversary were met with jealous precautions by the stronger of the two, and not with a generous confidence. Revenge also was held of more account than self-preservation. Oaths of reconciliation, being only proffered on either side to meet an immediate difficulty, only held good so long as no other weapon was at hand; but when opportunity offered, he who first ventured to seize it and to take his enemy off his guard, thought this perfidious vengeance sweeter than an open one, since, considerations of safety apart, success by treachery won him the palm of superior intelligence. Indeed it is generally the case that men are readier to call rogues clever than simpletons honest, and are as ashamed of being the second as they are proud of being the first. The cause of all these evils was the lust for power arising from greed and ambition; and from these passions proceeded the violence of parties once engaged in contention. The leaders in the cities, each provided with the fairest professions, on the one side with the cry of political equality of the people, on the other of a moderate aristocracy, sought prizes for themselves in those public interests which they pretended to cherish, and, recoiling from no means in their struggles for ascendancy engaged in the direst excesses; in their acts of vengeance they went to even greater lengths, not stopping at what justice or the good of the state demanded, but making the party caprice of the moment their only standard, and invoking with equal readiness the condemnation of an unjust verdict or the authority of the strong arm to glut the animosities of the hour. Thus religion was in honour with neither party; but the use of fair phrases to arrive at guilty ends was in high reputation. Meanwhile the moderate part of the citizens perished between the two, either for not joining in the quarrel, or because envy would not suffer them to escape."

(for more of Thucydides' account, see here).

Athens, the leading democracy of the time, got hungrier and hungrier, waged increasingly crazy and criminal wars, and was ultimately defeated in Syracuse (Sicily) as the US has been defeated in Vietnam and Iraq. (see W. Robert Connor, Thucydides, and my Must Global Politics Constrain Democracy?, ch. 4). The internal consequences of American war - depression, the war complex, a vast prison/probation system, and the increasing misuse of words - are all of a piece. This decadence can be reversed or stopped to a large extent, with a new movement toward green productivity; that was the promise of Obama, the new hope in his campaign. That hope is now with the Occupy movement and other courageous resisters like Witness against Torture to pressure this regime of the 1% for decency, for the rule of law, and not to destroy us (and the world) through ever expanding war and militarism. We should all work to further it…

Witness Against Torture 2012 – “HUNGERING FOR JUSTICE”

DAY 9 – January 11, 2012

Dear Friends,

When Joanne in New York heard that the ten-day forecast for Washington DC during our fast would be rather beautiful and warm except for Wednesday, January 11th, which was predicted to be cold and rainy, she remarked, “You see, even the earth will be weeping that day.” And it was. But as you will read below in the various reflections on today’s rally and events afterwards, we could not have had a more solemn and powerful marking of the tenth anniversary of the opening of the Guantánamo as a detention center for the US “War on Terror.”

In tonight’s reflection circle, Kevin from the Dorothy Day Catholic Worker shared that “hearing the reflections, names and stories of the men at Guantánamo” this past week, then seeing everything today come together, seeing all of the different groups and people form this demonstration and march in solidarity with the detainees—all of this together created “the most powerful experience.” What was so powerful was that this was for him evidence of the “connection of the human race…we don’t even know them [the men at Guantánamo]” and we didn’t even all know each other here today. But today we rallied, marched, and bore witness that we do not want to live in a world where indefinite detention and torture are justified.

And our work continues tomorrow…sentencing for Carmen, Brian & Judith in Superior Court, and then back to the White House before breaking our fast in the evening.

In peace,

Witness Against Torture

*** In this e-mail you will find:

1) Rally and March to the Supreme Court (Reflection by Mike Foley)

2) Frida Berrigan’s Opening Remarks for the Rally

3) Post-event Interfaith Prayer Service (Reflection by Martha Hennessy)

4) Fragments from this Evening’s Circle (Compiled by Amy Nee)

4) Letters of Support (Northern Iraq; Madison, Wisconsin)

* PLUS LINKS TO ARTICLES, PHOTOS AND VIDEOS *

1) “Protesters Mark Guantanamo Prison’s 10th Anniversary” (Reuters)

http://tinyurl.com/72jpfma

2) “Protesters Condemn Guantanamo Bay on 10th Anniversary with March from White House” (Washington Post) http://tinyurl.com/6owh7ht

3) “Guantanamo’s 10th Anniversary Marked by Protests” (video & article from VOA) http://tinyurl.com/6qz8d7m

4) “Gitmo 10 Years On: So Much for Closure” (video from Russia Today) http://rt.com/news/guantanamo-years-closure-failed-513/

5) “Opponents Start Guantanamo’s Second Decade with Jumpsuit Protest” (Miami Herald) http://tinyurl.com/7se96qa

6) “Hundreds Protest on 10th Anniversary of Guantanamo Prison”

(LA Times) http://tinyurl.com/73yxfll

7) “Activists at Rally Call on Obama to Keep Promise,

Shutter Guantanamo Bay” (CNN)

http://edition.cnn.com/2012/01/11/us/guantanamo-activists/

8) “Guantanamo 10th Anniversary Protests: Demonstrators March From White House To Supreme Court” (photos from the Huffington Post) http://tinyurl.com/6qe5q6h

9) “Rights groups protest to mark Gitmo decade” (Peter Finn)

http://tinyurl.com/8xd9ter

===================================

RALLY AND MARCH TO THE SUPREME COURT

(Reflection by Michael S. Foley)

Today, January 11, 2012, marked ten years to the day since the first prisoners arrived at Guantanamo. You've seen the photos of that first day - of the men shackled, masked, kneeling before their shouting captors. Ten years later, and three years into the Obama administration, 171 men remain in Guantanamo with no end in sight. They can expect no release, no day in court, no end at all. All three branches of the United States government are responsible for this atrocity - and the hidden unending detention of more than 2,000 prisoners in Bagram - and today each branch was visited by more than 1,000 Americans who have had enough of the government's moral failings. It was the biggest demonstration against detention policies since the "War on Terror" began, organized by an historic coalition of human rights, religious, and activist organizations, including Witness Against Torture, Amnesty International, the Religious Campaign Against Torture, and the Center for Constitutional Rights. World Can't Wait and Occupy DC also joined in, as did Code Pink.

The forecasters predicted rain, but the morning began brighter. When we first arrived in Lafayette Park across from the White House, the sun kept trying to warm us. The Park Ranger in her Smokey-the-Bandit hat did her best to rain on us, telling us that we had no permit to carry juice - juice! - in the park [how the words and the basis of authority degenerate here…- AG]. And maybe she summoned the actual rain, too, but nothing got in the way of an historic assembly and moving program of speakers. As buses came in from distant cities, the coalition partners gathered their people, handing out jump suits, t-shirts, stickers, signs. The mood was alternately somber, effusive, and angry. To begin the program, habeas attorneys occupied the stage with the names of their clients, some of whom had won their habeas cases before federal judges but whose clients remain in prison. As the rain came, speakers huddled under umbrellas to move and inspired us with their words of anger and hope, criticism and conviction.

At the end of the program, more than 171 jump-suited "detainees" - one for every man still held at Guantanamo - led a spectacular human chain of citizens from the White House to the Justice Department to the Capitol and, finally, to the Supreme Court. The rain continued as we walked past the White House in a line that seemed unending. At the front, the detainees moved silently, as police on motorcycles blocked traffic. Police cruisers buzzed by, sirens chirping and lights swirling; as Bill Frankel-Streit said afterward, it seemed as though they were shining a light on our procession.

It is humbling, as ever, to march in a jump suit and hood - to think about the men in Guantanamo who have no such freedom of movement, many of whom have languished there for most of a decade, and more than half of whom have been cleared for release...

As the march proceeded up Capitol Hill, the usual array of tourists, curious onlookers, and apparently annoyed pedestrians looked on, but one group appeared as we reached the top of Capitol Hill whom we had never before encountered. Turning the corner from Constitution Avenue on to 1st Street, we could hear a small smattering of applause, most of it coming from the left hand side of the street, outside the Hart Senate Office Building. Senate staffers had come out of their offices to stand with us, signaling their own disapproval for policies that their bosses seem unable or unwilling to end.

At the Supreme Court, the detainees filed in four lines before the plaza; Supreme Court police guarded the steps of the plaza as if they expected us to follow past years' examples, and take our protest to the Justices more directly. Instead, British journalist Andy Worthington spoke to us about the US District Court we had passed at the base of Capitol Hill, and the judges there who had effectively gutted the Boumediene v. Bush decision; Andy called on the Supreme Court to intervene and reinforce that decision. Former Guantanamo guard Daniel Lakemacher spoke of the various methods of dehumanizing detainees at Guantanamo and how this march helped to make visible the humanity of the men held there. Vince Warren, the Executive Director of the Center for Constitutional Rights, which represents many of the men at Guantanamo, spoke of the hard and important work the attorneys do, but also of the vital importance of citizen action. And Tom Wilner, one of the first American lawyers to represent Guantanamo detainees, described the ongoing struggle to secure justice for the detained men, while Steven Aleski, Boumediene's attorney, urged the participants to take the struggle for human rights and the rule of law back to their communities. Leili Kashani of CCR concluded by telling the moving story of CCR client Djamel Ameziane, and reading a poem, Is it true, written by Osama Abu Kabir while in Guantanamo.

===================================

FRIDA BERRIGAN’S OPENING REMARKS AT THE RALLY

Welcome. My name is Frida Berrigan and I work with Witness Against

Torture, a proud member of the vast coalition that organized this day

of action. On behalf of the coalition, I say again “welcome.”

Thank you so much for coming, for caring, for insisting—still, again,

after all these years—in justice, in the rule of law, in human rights.

Today, January 11, 2012, is the 10th year since the first "war on

terror" detainees were brought to the US Naval Base at Guantánamo.

This as a day of great shame -- ten years of torture, indefinite

detention, violation of the human rights and rule of law. This tragic

and criminal anniversary comes just 10 days after the US Congress and

President acted, through the NDAA, to make GTMO near-permanent, commit

more deeply to reprehensible policies, and expand detention powers at

precisely the time when we should be dismantling this pseudo-legal and

immoral detention apparatus.

So here we again. Grudgingly, unwillingly, but with outrage and energy

and even HOPE. I find a lot of hope in what Witness Against Torture

has been doing for the past nine days-- fasting, living in community,

and acting each day to draw attention to the scourge of indefinite

detention at Guantánamo and Bagram.

We are about to finish a 92 hour vigil in front of the White House

which we began on Saturday—with a representation of a Guantánamo cage

and a person inside of it. We have had countless profound and

educational conversations—alerting the tourists who come here from all

over the United States and all over the world that not all Americans

are comfortable with torture, abuse, indefinite detention. Are you

comfortable with that? No.

I also find a lot of hope in this extraordinary coalition. This “Ten

Years Too Many National Day of Action” is the result of months of hard

work by major human rights and civil liberties organizations, legal

collectives, advocates and citizens—like myself and my friends in

Witness Against Torture—who are of no special rank and have no

position other than to see justice done.

You are part of the biggest demonstration against detention policy

since the "War on Terror" began; we are part of a rising tide of

consciousness in this country to say no to torture, indefinite

detention, and the savaging of our rights.

Yes, despite everything (and despite the rain) this is a day of hope

because that so many people are gathered to say that we have neither

forgiven nor forgotten: that Guantánamo and indefinite detention and

torture are as wrong today as they were ten years ago; that there are

innocent men who must be released; that all detainees should be fairly

charged and tried or released; that those abused by US power should be

entitled to confront their captors and receive true justice.

Americans -- across the political spectrum -- are rising to say that

rights can't be taken away without us speaking out, that the men at

GTMO and Bagram cannot and will not be the forgotten victims of

American policy.

And it is a day of action. We are going to hear from a number of

brilliant and powerful speakers—we will learn and feel and connect and

then we will act. We will hear more specifics on this later, but

immediately following the rally we will begin a procession led by 171

"detainees" representing those who are still at GTMO.

The procession will form a "human chain" linking the institutions of

government-- Presidency, Department of Justice, Congress and the

Courts-- responsible for this shameful situation. At each site we

will hold a brief rally. These four nearly simultaneous events will

all end around 2:30 will the reading of a poem by a detainee

expressing his simple desire: to at last see justice done, to be

freed, to go home.

===================================

POST-EVENT INTERFAITH PRAYER SERVICE

(Reflection by Martha Hennessy)

It is our ninth day of the fast and following a long procession to the Supreme Court we attended an interfaith prayer service for Guantánamo at the New York Avenue Presbyterian church. The National Religious Campaign Against Torture sponsored it with speakers from Presbyterian, Catholic, Jewish, and Muslim faiths. Despite my fatigue and late arrival I was able to take in the beauty and simplicity of the service. Sister Patricia Chappell, executive director of Pax Christi caught my heart and attention when she said. “When there is brokenness in the world God arrives there first.” After days of hearing stories about the trauma of war and torture I felt a ray of sunshine come through. The exquisite hope of this! She also quoted William T. Cavanaugh, author of “Torture and Eucharist” describing torture as “the sacrament of the liturgy of the state.” After ten years of the “war on terrorism” we have dismembered our own souls and the bodies of countless others.

Dr. Sayyid Syeed, national director of the Islamic Society of North America’s Office for Interfaith and Community Alliances also shared reflections of reconciliation. He spoke of whole countries functioning as huge Guantánamos where dictators sacrifice their own peoples while suppressing uprisings against injustice. Several Muslim countries were named but I couldn’t help think about my own country practicing similar brutality here.

The service ended with a beautiful sounding of the shofar and a moment of silence for the prisoners of Guantánamo and victims of torture. In this brief interlude of the faiths coming together to declare our ultimate purpose of loving one another and seeing the image of God in each other, we were given sustenance and courage to continue with these small efforts against colossal forces in bringing mercy to the prisoners.

===================================

FRAGMENTS OF THIS EVENINGS CIRCLE

(Compiled by Amy Nee)

Chrissy began the circle quoting the mother, Talat Hamdani, of a young man who died in the 9/11 attacks in 2002. “[This campaign against Guantánamo is] giving humanity a chance to redeem itself.”

Mike commented as many would concur, that the rain-soaked hoods were impossible to see through, and in our weariness “we were a ramshackly group, a beautifully ramshackly group.” An enlivening interruption as we trudged toward Capital Hill was “applauding senate staffers” who had emerged on the sidewalk to cheer us on.

Helen: “I was glad that it was grueling. The challenge made it more real.”

Dan shared that he has been carrying with him the theme of faithfulness and effectiveness – two aspects of action that are often presented in opposition, as an either or – and considering how to find the dynamic between the two. Thinking of all of the people involved in today’s demonstration, those symbolizing detainees, speakers, media, viewers there was the feeling that this was “as effective as I could wish it to be while being faithful at the same time.”

Beth had been responsible for coordinating a bus from North Carolina, a biodielsel van with composting toilet and dumpstered food! She spoke of her joy at the arrival of her family and friends and the struggle to separate herself from them by donning the hood. It was so sad, she added, considering her struggle with this “momentary separation when compared to ten years for the men at Guantánamo.”

Brian had started the day with a feeling of fear, having felt so weak yesterday, to the point that he considered eating something in the morning to fortify himself for the arduous day ahead. “But now, I don’t even feel like I am fasting. I feel so nourished by all that has transpired today.”

Mike, quoting the exclamation of a friend overlooking the long line of men and women in orange jumpsuits and black hoods winding through the capital, “looks like Guantánamo’s about to get it’s ass kicked!”

Tim talked about the fear that accompanied the obfuscation of the hood. He was all but blinded but felt guilty at raising it to clarify his vision because as he did so he thought of the men he was representing, and remembered, “they don’t have a choice, to pull off their hood or break a fast. And that is so sad.”

Lauren from N.C., in the circle for the first time was grateful to have come across this community. “I have been desiring a more grounded approach to activism…a group that takes the energy of anger and channels it…I feel like I’ve found that here.”

Erika had the opportunity, while waiting in line for the woman’s bathroom to open up, to share with a dozen Amnesty volunteers the story of Jumah Mohammed Abdul Latif Al Dossari who they knew only to be a Bahraini. “I didn’t know his story ten days ago, but now I was able to share it; now they know it not only because of me, but because of all of you.”

Josie had the opportunity to give an interview with a Turkish t.v. station. As she shared about how we were sending groups to connect these places of power that players in the continuation of indefinite detention her voice broke, “sometimes giving voice to something lets you get in touch with emotion.” She went on to talk about the buildings in the capital themselves, the feelings they build up. The architecture itself can be a source of awe and pride but from the context of our action the feelings associated with them are now sadness and tragedy. Yet, as we move amongst them together, taking action, “we find our voice.”

“What we contributed,” Paki shared, “was the Soulforce that Gandhi writes about.”

Experiencing a persistent irritation from the way his jacket rubbed him under the hood, John reflected on “how a little thing can become torture,” and while he could choose to adjust his position, step out of procession or bear with it, those who are tortured are not given that choice. And in the midst of this, still, his meditation became, “All is grace.”

===================================

LETTERS OF SOLIDARITY

From Northern Iraq with the Christian Peacemaker’s Team–

unwinding this afternoon, snapped on Al Jeezera and they did a piece on 10 years of Guantánamo and you folks were shown in front of the white house. i could hear Carmen's voice. i felt very much at home and grateful for your presence.

made me feel connected

bud courtney

* * *

From Madison, Wisconsin –

Dear Fasters in DC,

Just wanted to let you know I'm with you in spirit and hope the Day of Action tomorrow will be a good one. Here in Madison, WI our little committee has worked with local groups on raising the issue of torture and closing Guantánamo.

Yesterday (Jan 9) we joined an ongoing Monday noon peace vigil (My reflection on that is at the bottom of this e-mail.)

This evening (Jan 10) Joy First and I did the program for the monthly meeting of the Dane County Chapter of the United Nations Association. It was titled "Guantánamo, Military Tribunals and the Rule of Law." Joy talked about Guantánamo and WAT and I reviewed the provisions of the UN Convention Against Torture. We also showed the documentary titled "The Response."

Tomorrow (Jan 11) we're having a gathering co-sponsored with the Wisconsin Network for Peace and Justice at a local coffee shop. We'll write letters to elected officials and to prisoners still at Guantánamo.

I think I'm the only one here fasting, but I didn't start until Jan 7th because our family celebrates the full 12 Days of Christmas and Epiphany so I wasn't ready to start the fast on Jan 2nd.

Blessings to you all,

Peace,

Bonnie Block

WEDNESDAY, JAN 11, 2012 1:57 AM MST

More murder of Iranian scientists: still terrorism?

BY GLENN GREENWALD

In this photo provided by the semi-official Fars News Agency, people gather around a bombed car in Tehran, Iran, Wednesday, Jan. 11, 2012 (Credit: AP Photo/Fars News Agency, Mehdi Marizad)

(updated below – Update II – Update III – Update IV)

Several days ago I referenced a controversy that arose in 2007 when the law professor and right-wing blogger Glenn “Instapundit” Reynolds criticized President Bush for not doing enough to stop Iran’s nuclear program and then advocated that the U.S. respond by murdering that nation’s religious leaders and nuclear scientists. “We should be responding quietly, killing radical mullahs and Iranian atomic scientists . . . ,” he argued. The backlash against Reynolds’ suggestion was intense, especially among progressive writers.

Back then, I wrote about Reynolds’ suggestion several times, but I was far from alone. Law Professor Paul Campos wrote a column in the Rocky Mountain News denouncing Reynolds for publicly advocating “murder,” which, he pointed out, is exactly what this would be given that the U.S. is not at war with Iran (he went on to suggest that targeting civilian religious leaders and scientists would still be murder even if the U.S. were at war with Iran); Campos added: “government-sponsored assassinations of the sort Reynolds is advocating are expressly and unambiguously prohibited by the laws of the United States.” Law Professor Kevin Jon Heller documented with absolute clarity that such assassinations would be illegal in the absence of a formal war.

But the angriest reactions came from progressive bloggers, who widely denounced Reynolds as “contemptible” for suggesting this; one progressive writer, Lindsay Beyerstein, was horrified that one could even suggest such a thing, explaining that she ”despair[s] for our society when it’s necessary to supply a rigorous analytical exposition of why our government shouldn’t have scientists and religious leaders whacked.” Scott Lemieux railed against what he called Reynolds’ “kooky scheme for illegal death squads” as “crackpot,” “dumb” and “nuttier than a Planters factory.” And Kevin Drum, then of Washington Monthly, went the furthest of all — in a post he entitled “Terrorism” — branding the killing of Iran’s scientists as “Terrorism”:

I imagine a lot of people agree with [Reynolds], but his recommendation really demonstrates the moral knot caused by George Bush’s insistence that we’re fighting a “war on terror.” After all, killing civilian scientists and civilian leaders, even if you do it quietly, is unquestionably terrorism. That’s certainly what we’d consider it if Hezbollah fighters tried to kill cabinet undersecretaries and planted bombs at the homes of Los Alamos engineers.
If you think Iran is a mortal enemy that needs to be dealt with via military force, you can certainly make that case. But if you’re going to claim that terrorism is a barbaric tactic that has to be stamped out, you can hardly endorse its use by the United States just because it’s convenient in this particular case.

What is most amazing about all this is that, a mere three years later, some combination of Israel and the U.S. are doing exactly that which Reynolds recommended. Numerous Iranian nuclear scientists are indeed being murdered.

In January, 2010, a remote-controlled bomb attached to a motorcyclekilled Masoud Ali Mohammadi, 50, who “taught neutron physics at Tehran University.” In November, 2010, two separate car bombs exploded within minutes of each other on the same day, one that killed nuclear scientist Majid Shahriar and wounded his wife, and the other which wounded another nuclear scientist, Fereidoun Abbasi, along with his wife. Then, in July of last year, Darioush Rezaei, 35, was shot dead and his wife was wounded by two gunmen firing from motorcycles outside of their daughter’s kindergarten; Rezaei “did his doctorate in neutron transport – which lies at the heart of nuclear chain reactions in reactors and bombs” and “was a member of the Atomic Energy Organization of Iran, the country’s official atomic energy commission.”

And now, yet another Iranian scientist has been killed. According to Iranian media, a 32-year-old university professor, Mostafa Ahmadi-Roshan, died when an assailant riding on a motorcycle attached a magnetic bomb to his car, which then detonated and killed him. According to The Washington Post‘s Thomas Erdbrink, a conservative news outlet in Iran reported that the young scientist “was believed to be involved in procuring materials for Iran’s main nuclear enrichment facility in Natanz.”

What’s most remarkable here is to compare the boisterous, furious denunciations of the mere suggestion by a blogger on the Internet that Iranian scientists be killed, versus the relative silence in the face of its actually being done in real life, now that the corpses of murdered Iranian scientists are beginning to pile up. Does anyone doubt that some combination of the two nations completely obsessed with Iran’s nuclear program — Israel and the U.S. — are responsible? (U.S. officials deny involvement while pointing the finger at Israel, whose officials will not comment but “smile” when asked; the CIA has “targeted” Iran’s scientists in the past, several of whom have disappeared only to end up in U.S. custody, including one who “resurfaced in the United States after defecting to the CIA in return for a large sum of money”). At the very least, there has been no denunciation from any Obama officials of whoever it might be carrying out such acts.

I have no doubt that Professors Campos and Heller would apply the same legal rationale now that it’s actually being done, but what about the progressives who so stridently denounced Reynolds? Does Lemieux still believe that whoever is responsible — Israel, the U.S., or some combination — is guilty of dispatching “illegal death squads”? Does Beyerstein still “despair for our society” that such acts could even be contemplated? Does Drum still believe that whichever political leaders are responsible for these killings are Terrorists; specifically: if, as is widely assumed, the Israelis are responsible, does that mean that Israel is a Terrorist state, and if U.S. agencies are complicit in some way, does that mean President Obama is a Terrorist, a state sponsor of Terrorism or, at the very least, a supporter of Terrorism?

In general, the American covert war against Iran is extraordinarily dangerous and probably illegal (it’s certainly unauthorized), but in particular, the assassination of Iran’s scientists is just reprehensible. Now that it’s actually happening, one wishes the reaction to it were even partially as aggressive as it was when a right-wing blogger suggested it.

* * * * *

Three other brief noteworthy items: (1) yet again, the New York Times’ Public Editor admonishes that newspaper for baseless reporting about Iran that overstates the threat it poses (specifically for overstating the IAEA’s assessment of Iran’s nuclear program); FAIR first raised objections to the offending article last week; (2) here is a telling scene from Tom Friedman’s current field trip to Cairo; and (3) a sixth-grader named Wolf writes a nice little school report for his civics class on the presidential race.

UPDATE: This morning, Haaretz has a timeline of what it calls “Mysterious deaths and blasts linked to Iran’s nuclear program” — and by “linked to,” they mean: “aimed at” (h/t James Carter). It includes the murder of these scientists as well as various explosions killing many people. If you removed the proper nouns from this timeline (Iran, Ahmadinejad, Natanz), very few people would have any doubt that this is Terrorism.

UPDATE II: The right-wing religious extremist Rick Santorum said previously: ”On occasion scientists working on the nuclear program in Iran turn up dead. I think that’s a wonderful thing, candidly”; he added: “I think we should send a very clear message that if you are a scientist from Russia, North Korea, or from Iran and you are going to work on a nuclear program to develop a bomb for Iran, you are not safe.” This is how he justified all that:

If people say, “well, you can’t go out and assassinate people” — well, tell that to Awlaki. OK, we’ve done it. We’ve done it to an American citizen, so we can certainly do it to someone who’s producing a nuclear bomb that can be dropped on the state of Israel . . . .

We better hope and pray Rick Santorum never becomes President or else the legal prohibitions against assassinations will simply be ignored and that will become standard American policy — oh, wait. Meanwhile, long-time commenter DCLaw1 poses this question:

Even for people who don’t believe the US has anything to do with the assassination of Iranian scientists, just flip the scenario: how would they react to news that Israeli scientists were being systematically murdered, and Iranian officials just smiled and acted coy when asked about it? What would they say about that, and what would they say the US and Israel would be justified to do in response?

To answer that, just consider the consensus outrage that spewed forth when it was claimed (ridiculously) that Iran was sponsoring a Terror plot on U.S. soil to have a failed Texan used car salesman hire Mexican drug cartels to kill the Saudi ambassador: Terrorism!

UPDATE III: Lemieux responds by saying: “If the United States was involved in the killings — and we should stress the ‘if’ here — the Obama administration’s actions were both illegal and immoral, for the same reasons stated in my earlier posts.” Similarly, Drum strongly implies that he believes the assassinations are Terrorism. Meanwhile, Professor Campos, writing on the blog where Lemieux writes, tries to explain to Lemieux’s angry commenters what the point is of asking these questions and what the benefit is of hearing denunciations not only when a right-wing blogger proposes it, but also when it’s done in reality (in comments, David Mizner attempted the same).

For its part, the U.S. denied involvement in today’s murder and said they “strongly condemn all acts of violence, including acts of violence like what is being reported today,” while ”in Israel . . . the denial was much more vague. Brig. Gen. Yoav Mordechai, the Israeli military spokesman, wrote on his Facebook page that ‘I don’t know who took revenge on the Iranian scientist, but I am definitely not shedding a tear,’ Agence France-Presse reported.” Nonetheless, “Theodore Karasik, a security expert at the Institute for Near East and Gulf Military Analysis in Dubai, said the assassination fit a pattern over the past two years of covert operations by the West and its allies to ‘degrade and delay’ Iran’s nuclear program.”

UPDATE IV: Beyond what’s discussed here, John Glaser looks at the publicly available evidence, including what has been reported in The Guardian and Der Spiegel, regarding who is likely behind this spate of killings of Iranian scientists.

11 Jan 2012 Andrew Sullivan

NYT Fail

They refused to use the word torture to describe torture because it offended Republicans. Now they refer to an incident in which a mysterious figure on a motorcycle sticks a highly sophisticated bomb on the side of a car in Tehran, assassinating a scientist, and it's not an act of terrorism. It's an act of "terrorism". Maybe they're just using it in the British fashion to indicate the Iranians are merely describing it thus. But what word would the NYT use to describe a targeted car bomb, if, for example, it was planted by Hamas in, say, Tel Aviv or New York and killed a government scientist? Seriously, this matters. If this was not an act of terrorism, designed to create terror among scientists and others in Tehran, then it was an act of war.

My fear is that this is state terrorism directed by Netanyahu, in an attempt to increase tensions to bring about the full-scale war against Iran's nuclear program, over Washington's objections. But once US allies sanction car-bombing assassinations, it is legitimizing their use by others here. You reap what you sow.

12 Jan 2012 11:45 AM

What Civilization Means

I do not know the life, background or motivations of one Mostafa Ahmadi Roshan, who was killed, along with another passenger, when a motorcycle rider out of a Bourne movie stuck a plastic explosive on his car door and blew him to smithereens. What I do know is that he was a scientist working, we're told, as a procurer in Iran's nuclear power/arms program. Does he make the decisions in this theocratic tyranny? Is he responsible for the policy? Maybe he is an adamant Khamenei supporter. Maybe not. But he has been assassinated by someone. How should we respond?

Here's how Rick Santorum responded to these kinds of killings:

On occasion scientists working on the nuclear program in Iran turn up dead. I think that’s a wonderful thing, candidly.

There is no way in Catholic - or indeed any moral - teaching that such assassinations can be celebrated as "wonderful". The person saying so is attacking some of the core truths of Christianity. Here's the response from the Israeli military spokesman, Brig. Gen. Yoav Mordechai:

I don’t know who took revenge on the Iranian scientist, but I am definitely not shedding a tear.

Not even for his fatherless child? Or wife? Here's Greenwald's account of one of the previous assassinations:

In November, 2010, two separate car bombs exploded within minutes of each other on the same day, one that killed nuclear scientist Majid Shahriar and wounded his wife, and the other which wounded another nuclear scientist, Fereidoun Abbasi, along with his wife. Then, in July of last year, Darioush Rezaei, 35, was shot dead and his wife was wounded by two gunmen firing from motorcycles outside of their daughter’s kindergarten.

I fear sometimes that we have badly lost our way here. When Americans rejoice in the assassination of scientists, they have lost their moral compass. When they cannot shed a tear for a dead man's wife or child, they are becoming dangerously close to the barbarians they claim to be fighting.