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Friday, May 15, 2009

The Yoo memorandum, Part II

Returning to the issue of torture and John Yoo’s famous memorandum of March 14, 2003, I now take up the question of the treaties to which the United States is a party, specifically the Convention Against Torture, adopted by the UN in 1984 and ratified during the first Bush Administration. It reads, in part:

Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. [Emphasis added.]

Now the founding fathers did not mince words about the authority of treaties. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;” states Article VI, part 2, “and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” Parts of this treaty, however, are clearly designed not to be “self-executing,” as Chief Justice Marshall put it: they ask each state to pass laws implementing some of its provisions, and the United States has indeed done just that. The applicable law, Section 2340 of the US Code, states:

As used in this chapter -

(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from -
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.


The treaty the implementing legislation seem to erect formidable barriers against what the Bush Administration wanted to do, but John Yoo and his colleagues were equal to the task. The first Bush Administration, they say, made clear exactly what the US was agreeing to when Section 2340, above, was passed—and they argue that the US definition of torture focused upon the specific intent to inflict “severe physical or mental pain or suffering” was narrower than that of the CAT (Convention Against Torture.) In essence, because the U.S. law, unlike the Convention, did not specifically mention pain and suffering “intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession,”Yoo argues that the United States law was not designed to ban such a practice. What we all have to understand about the Administration’s arguments—and these particular arguments persisted years after the extreme claims of Presidential power had been dropped—that they regard only acts designed for the express, if not sole, purpose, of inflicting lasting physical or mental pain and suffering upon the victim constitute torture and are therefore illegal. If an interrogator had substantial reason to believe that his prisoner would recover from whatever physical or mental pain he was inflicting, he was not, in this view, guilty of torture. To me this is a patently absurd construction. Since every nation on earth presumably bans the intentional infliction of permanent physical or emotional damage, it would make the whole treaty completely unnecessary.

Unfortunately for Yoo, it was not at all clear, to put it mildly, that that was the intent of the Bush Administration. As his memo says, nations signing and ratifying treaties can add “reservations,” indicating that they do not regard themselves as bound by certain provisions, or “understandings,” which do not exempt them from any provisions. Yoo’s problem is that the first Bush Administration did not file a reservation in this sense—but he was not going to be deterred by that. I quote:

“A reservation is generally understood to be a unilateral statement that modifies a state party's obligations under a treaty. The ratifying party deposits this statement with its instrument of ratification. See, e.g., Memorandum for the Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Genocide Convention at 1 n.l (Jan. 20, 1984). By contrast, an understanding is defied as a statement that merely clarifies or interprets a State party's legal obligations under the treaty. Such a statement does not alter the party's obligations as a matter of international law. How a party characterizes a statement it deposits at ratification is not, however, dispositive of whether it is reservation or understanding. See Letter for Hon. Frank Church, Chairman, Ad Hoc Subcommittee on the Genocide Convention, Committee on Foreign Relations, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel at 2-3 (May 8, 1970). Instead, whether a statement is a reservation or understanding depends on the statement's substance. See Memorandum for the Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Genocide Convention, at 2 nA (June 1, 1982). Here, although under domestic law, the Bush administration's definition of torture was categorized as an "understanding," it was deposited with the instrument of ratification as a condition of the United States' ratification, and so under international law we consider it to be a reservation if it indeed modifies CAT's standard.”

One is once again struck, reading this memo, how a direct line runs from Assistant Attorney General William Rehnquist, who served under President Nixon and endorsed many of his claims of absolute executive power, through Theodore Olsen, who did the same for Ronald Reagan, and then to John Yoo. Much of what they argued, however, was never endorsed either by Congress or the Supreme Court, and President Nixon, of course, lost his office because of his adherence to doctrines of absolute presidential power in matters relating to national security.

Turning Section 2340 into a reservation, however, doesn’t solve all the problems. “To be sure, the Vienna Convention on Treaties recognizes several exceptions to the power to make reservations. . . . First, a reservation is valid and effective unless it purports to defeat the "object and purpose" of the treaty.” That, of course, is exactly what the whole memo is designed to do—to make what it outlawed, torture, permissible.

“Some may argue that permitting the assertion of justification defenses under domestic law, such as necessity or self-defense, would place the United States in violation of its international obligations. Such an argument would point to article 2(2) of CAT, which provides that '~[nJo exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of tonure." We do not believe, however,that a treaty may eliminate the United States' right, under international law, to use necessary measures for its self-defense. The right of national se1f-defense is well established under international law. As we have explained elsewhere, it is a right that is inherent in international law and in the international system.”

“Thus, if interrogation methods were inconsistent with the United States' obligations under CAT, but were justified by necessity or self-defense, we would view these actions still as consistent ultimately with international law. Although these actions might violate CAT, they would still be in service of the more fundamental principle of self-defense that cannot be extinguished by CAT or any other treaty. Further, if the President ordered that conduct, such an order would amount to a. suspension or termination of the Convention. In so doing, the President's order and the resulting conduct would not be a violation of international law because the United States would no longer be bound by the treaty.”

The President of the United States, then, is not bound by any treaty—or, as we have seen, in their opinion, by any law or provision of the Bill of Rights—provided that he believes he is engaged in the defense of the country. One of several critical Supreme Court decisions which this doctrine flagrantly contradicts is, of course, Ex Parte Milliken, which held after the civil war that civilian prisoners could not be tried in military courts even in the midst of a great rebellion, and which the memo, naturally, ignores. Until at least the Second World War, the United States was one of the world’s leading advocates of binding international law. It is sad to see an American administration declare that the President in foreign policy is effectively an absolute monarch.

Quoting the convention, they manage to leave out the explicit reference to acts designed to secure a confession. They then get to work depriving the prohibitions against lesser forms of cruel, inhuman or degrading treatment, as follows..

“In its instrument of ratification to the Torture Convention, the United States expressly defined the term "cruel, inhuman, or degrading treatment or punishment" for purposes of Article 16 of the Convention. The reservation limited "cruel and unusual or inhumane treatment or punishment" to the conduct prohibited under the Fifth, Fourteenth and Eighth Amendment. They then argue that the relevant Eighth Amendment cases deal with the rights of prison guards to deal with inmate uprisings, and that the courts have found that force proportional to the need is appropriate—and then, of course, they are home free, arguing that any interrogation techniques proportional to the need to secure information would be fine as well. “Here, depending upon the precise factual circumstances, such teclmiques may be necessary to ensure the protection of the government's. interest here-national security. As•the Supreme Court recognized in Haig v. Agee, 435 U;S. 280 (1981), "It is 'obvious and unarguable' .thaLno governmental interest is more compelling than the security of the Nation."

“Although the substantive due process case law is not pellucid, several principles emerge. First, .whether conduct is conscience-shocking turns in part on whether it is without any justification, i.e., it is "inspired by malice or sadism."• Webb, 828 F.2d at 1158. Although enemy combatants may not pose a threat to others in the classic sense seen in substantive due process cases, -the detainees here may be able to prevent great physical injury to countless others through their knowledge of future attacks. By contrast, if the interrogation methods were undertaken solely-to produce severe mental suffering, they might shock the conscience.”

Here Yoo was returning to some of the logic of earlier parts of the memo: the treatment of detained Al Queda and Taliban suspects (which is all many of them ever were) as if they were actual armed soldiers still engaged in combat. Because the Supreme Court has allowed prison authorities to use substantial force to suppress riots, they are arguing, the same kind of force can be used against helpless detainees who might have some information useful to the United States.

Other memos, written by other members of the OLC, relied much more heavily on the issue of “intent” to de-criminalize every proposed form of interrogation, including waterboarding. Waterboarding obviously posed the greatest problem because the CAT explicitly prohibits threats of imminent death, which is exactly what waterboarding is. But the OLC argued that since the interrogators did not expect anyone to die of waterboarding, they were not in fact threatening their prisoners with imminent death. They never mentioned, of course, that Japanese soldiers had been convicted and sentenced (I am not sure how severely) for waterboarding by American military courts after the end of the Second World War.

This memo, and some of the others, essentially did two things: to argue that the President wasn’t bound by any laws or treaties, but that if he was, they didn’t mean what they said—and in any case (see above), he could withdraw the United States from the treaty simply by breaking it. If the United States does not find some way to discipline the authors of these memos, we will have accepted their arguments, however invalid they may seem to any reasonable person, as within the purview of the President to adopt and implement. We will have announced, in effect, that the United States will torture prisoners only when we have a President who wants to do so. That claim will not earn us much trust around the world. The argument from necessity, I predict, will also turn out to be baseless when (as is now rumored to happen) the CIA Inspector General’s report on these interrogations is released, detailing what was and what was not learned as a result of torture. In a sense we should not be shocked by all this. As I have mentioned here many times, both Jefferson and Madison realized when the Bill of Rights was adopted that they would at some point be violated by a power-hungry executive—but Jefferson argued that their inclusion in the Constitution would make it easier to restore them after a crisis had passed. That is what we must now find some unequivocal way of doing. The floor is open for suggestions.

The Yoo Torture memo, part I

Many of the new readers flocking to this site--especially those who were relieved to find that I was not, in fact, the author of the widely circulated email comparing President Obama to Adolf Hitler, and that its attribution to me was false--have asked how something like this could take place--how such a screed could become popular, and how some one would dare misattribute it. [More information on the hoax and the origins of the article can be found here. Last week's entry tried to explain this phenomenon. This one deals with the issue of torture. I have been writing these posts since 2004, and the first four years of them are available as a book--simply click on the link at left to order it.

Two Wednesdays ago, the New York Times featured an op-ed by an attorney named Vicki Driscoll, a former counsel to both the CIA Counterrorism Center and the Senate Intelligence Committee, who now teaches at my own sister institution the US Naval Academy. She addresses the issue of Congressional oversight of CIA covert action, focusing upon a loophole in the 1976 legislation passed in the wake of the revelation of longstanding abuses, that sought to give Congress the right of approval of such activity. That loophole allowed the executive branch not to inform the full House and Senate Intelligence Committees of proposed actions when “extraordinary circumstances affecting vital interests of the United States” were at stake. In such cases it could under the law inform only eight members, the ranking majority and minority members of the two committees and the leaders of the House and Senate. With respect to its use of “enhanced interrogation” techniques, however—that is, torture—the Bush Administration went well beyond this, giving only short, totally confidential briefings to only four members, the ranking members of the intelligence committee, and making the briefings conditional on pledges not to reveal anything further. Although Ms. Driscoll does not mention this, the Bush Administration—not coincidentally in my opinon—reverted to the way things were done in the 1950s and 1960s, when notification was consistently limited to just a couple of favored and friendly members of Congress—exactly the situation that the 1976 law was passed to undo.

Now I certainly agreed with Ms. Driscoll’s argument, but as it happens, I have been preparing two long posts on John Yoo’s now-famous torture memo of March 14, 2003, and it makes it very clear that the problems raised by the Bush Administration’s policies go well beyond the simple observance of the details of the laws relating to covert operations. It is very clear that Yoo, Jay Bybee, Alberto Gonzales, Vice Presidential Counsel David Addington, and the rest of the Bush leadership would never have let such a law stand in their way. I have decided to read this and other of the memos over the next few months to assess the damage that the Bush Administration did to the Constitution and to try to decide for myself what kind of remedies are now necessary—one of the most difficult questions that I have ever wrestled with. I do think, and hope to show starting today (when I will not be able to come close to exhausting the subject), that the Bush Administration used the Justice Department’s Office of Legal Counsel (OLC), where Yoo worked, to carry out a kind of coup d’etat. Rather than do their actual job—to inform other agencies of the government such as the CIA and the military services—what the state of the law was, they set themselves up, in effect, as an alternative Supreme Court, creating a new jurisprudence that threw out all the checks on the power of the executive that the American Revolution, the Constitution, and many of our greatest Supreme Court decisions were designed to put in place. They also (as I plan to show next week) effectively tore up the entire structure of international law that the United States had taken the lead in building up over the last century. None of this, meanwhile, came out of nowhere. Yoo’s memo reflects a particular tradition of legal argument—one in which its adherents believe devoutly, even though most of it has never been endorsed either by Congress or the Supreme Court. That tradition seems to have originated under Richard Nixon, when the head of the Office of Legal Counsel was a young lawyer from Arizona named William Rehnquist, and blossomed further under Ronald Reagan, when Theodore Olsen held that job. One of the more striking aspects of Yoo’s memo is how often its key points rely upon OLC opinions signed by one or the other of those two men, rather than upon statutes or court decisions. Meanwhile, one by one, provisions of domestic and international law that obviously constrain the behavior of the executive are torn up and tossed into the waste basket with frightening ease.

There are essentially two levels of argument in both this memo and many of the others. Yoo and company wrote a brief reminiscent of the classic criminal lawyer’s defense of a guilty client: “My client wasn’t there; but if he was there, he didn’t do it; and if he did do it, the victim obviously deserved it.” Their version argues, first, that the President isn’t bound by any laws or treaties in anything he does in wartime, but that secondly, even if he were, the laws and treaties that ban cruel and unusual punishments, torture, and cruel, inhuman and degrading treatment wouldn’t forbid anything the Administration wanted to do anyway. I shall deal with the first, broader argument this week and the second next week.

The task of providing legal advice to the executive branch has now devolved upon the Justice Department’s Office of Legal Counsel, whose opinions legally guide the actions of the rest of that branch. Yet members of that office cannot, any more than other public or private attorneys giving legal advice to a private party or entity of government cannot issue opinions that bind the courts, who under the American system remain the ultimate arbiters of the law and of what it allows, or juries, who in criminal cases make the key findings of fact. As I have been informed by former government attorneys who have dealt with the OLC, it generally is presented with legal arguments by this or that government agency upon which it gives its opinion. The Yoo memo responded to requests from the general counsel of the Department of Defense, but it does not simply respond. Instead, Yoo (with the help, I am inclined to suspect, of David Addington of the Vice President’s office), began by explaining exactly why it was necessary to make new law to deal with Al Queda—a role which, one should think, would more properly have fallen to the parts of the government directly charged with that problem. I quote:

“Given the ongoing threat of al Qaeda attacks, the capture and interrogation of al Qaeda operatives is imperative to our national security and defense. Because of the asymmetric nature of terrorist operations, information is perhaps the most critical weapon for defeating al Qaeda. Al Qaeda .is not a nation-state, and has no single country or geographic area as its base of operations. It has no fixed, large-scale military or civilian infrastructure. It deploys personnel, material, and finances covertly and attacks without warning using unconventional weapons and methods. As the September 11, 2001 attacks and subsequent events demonstrate, it seeks to launch terror attacks against purely civilian targets within the United States, and seeks to acquire weapons of mass destruction for such attacks. Because of the secret nature of al Qaeda's operations, obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States. Interrogation of captured al Qaeda operatives could provide that information; indeed, in many cases interrogation may be the only method to obtain it. Given the massive destruction and loss of life caused by the September 11 attacks, it is reasonable to believe that information gained from al Qaeda personnel could prevent attacks of a similar (if not greater) magnitude from occurring in the United States.”

Now that whole paragraph has nothing to do with law—it is merely a highly debatable statement of policy and strategy. Interrogation is NOT the only means by which one could learn of an Al-Queda attack; electronic eavesdropping or, better still, infiltrating the organization would be much, much more effective. More importantly, to use this statement of policy and strategy as a basis for ignoring laws and treaties such as the Geneva Conventions leaves aside the obvious point that the same arguments could have been used in previous conventional wars to justify the torture of captured prisoners, particularly airmen. Captured British, American or German flyers during the Second World War could have been interrogated about what new targets were likely to be struck, or about the tactics that bombers were relying upon, on the assumption that such information would allow their captors to save lives. But this was not done, to my knowledge, because it was banned by rules of war that even Germany was still observing, at least in its war with the western powers.

Now the abuse of persons in custody is, of course, banned by numerous laws of the United States, including at least one that applies to the acts of Americans abroad. To justify coercive acts, including torture (and we shall see that there is no doubt that this memo went that far), Yoo and company had to explain why such laws did not apply. They relied on a combination of two highly debatable arguments: first, that the President has essentially absolute power to conduct wars as he sees fit, and second, that the other branches of government have no more power over what the President and his subordinates do to detained individuals than they have over the conduct of actual military operations. This is bluntly stated as follows:
“In the area of foreign affairs and war powers in particular, the avoidance canon has special force. In contrast to the domestic realm, foreign affairs and war clearly place the President in the dominant constitutional position due to his authority as Commander in Chief and Chief Executive and his plenary control over diplomatic relations. There can be little doubt that the conduct of war is a matter that is fundamentally executive in nature, the power over which the Framers vested in a unitary executive.”

“In order to respect the President's inherent constitutional authority to direct a military campaign against al Qaeda and its allies; general criminal laws must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress cannot interfere with the President's exercise of his authority as Commander in Chief to control the conduct of operations during a war.”

“As we have discussed above, the President's power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander in Chief. Any construction of criminal laws that regulated the President's authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President's constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maimmg, interstate stalking, and torture pursuant to any express authority that would allow it to infringe on the President's constitutional control over the operation of the Armed Forces in wartime. In our view, Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any argument that these statutes apply to persons under the direction of the President in the conduct of war.”

This is an extreme view of Presidential power—the exact same view taken by Richard Nixon in the 1970s when he argued that he was entitled to order warrantless burglaries carried out by White House staffers for the sake of national security. But the OLC doesn’t mention that, of course, and its failure to cite a single Supreme Court authority for this view shows that it is making this doctrine up as it goes along. And indeed, the footnote that follows this passage—no. 13—deserves to be quoted in full to show exactly how the OLC defined its own powers.

“It might be thought that Congress could enact legislation that regulated the conduct of interrogations under its authority to "make Rules for the Government and Regulation of the land and naval Forces." U.S. Const art. I, § 8, cl. 14. The question whether Congress could use this power to regulate military commissions was identified and reserved by the Supreme Court. ExParte Quirin, 317 U.S. 1,29 (1942). Our Office has determined that Congress cannot exercise its authority to make rules for the Armed Forces to regulate military commissions. Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from Patrick F. Philbin, Deputy Assistant Attorney General,Office of Legal Counsel, Re: Swift Justice Authorization Act at 7 (Apr. 8,2002). If military commissions are considered an integral part of the conduct of military operations" then the conduct of interrogations of enemy combatants during wartime must be as much a core element of the President's power to successfully prosecute war. Any effort by Congress to use its power to make rules for the armed forces would thus be just as unconstitutional as such rules would be with regard to military commissions.”

In other words, although the Supreme Court has confirmed Congress’s power to regulate the operation of military commissions, our own office, whose members have been appointed by the President and his Attorney General, disagree, and our opinion is controlling. Rather than telling the Department of Justice what the law is, which was their real job, the OLC was telling them what they thought the law should be, and assuming that that was, therefore, what the law was. That is, of course, exactly how many Baby Boomers have been treating any law that got in their way for the last forty years, first in schools and colleges, then in the economy, and then in politics. But this passage, it seems to me, is so contrary to the most basic principles of American law that it entitles a bar association to consider disciplinary proceedings against its authors.

In further attempts to show that U.S. statutes cannot apply to the executive treatments of “illegal combatants,” the memo crafts language that would have brought a smile to the lips of George III.

“Under traditional practice as expressed in the customary laws of war, the treatment of unlawful belligerents is left to the sovereign's discretion . . . Under our Constitution, the sovereign right of the United States on the treatment of enemy combatants is reserved to the President as Commander-in-Chief. In light of the long history of discretion given to each nation to determine its treatment of unlawful combatants, to construe these statutes to ,regulate the conduct of the United States toward such combatants would interfere with a well established prerogative of the sovereign.”

Now this is as good a time as ever to introduce a problem with this new jurisprudence which in my opinion has not gotten enough attention. Extraordinary measures against “illegal combatants”, that is, enemy fighters who do not wear uniforms or belong to a recognized national army, have always been justified precisely on the grounds that they cannot be identified and dealt with like regular troops, as called for by the laws of war, because of their attempts to conceal themselves among the civilian population. The Bush Administration was trying to use this tradition literally to treat its captives as outlaws, that is, as men with no legal protection whatever. (To my knowledge no woman has been classified as an enemy combatant.) But the attempt to conceal themselves introduces another gigantic problem which this memo totally ignores: the difficulty of determining who was, and who was not, part of Al Queda or the Taliban. It has long since become clear that many of the people held at Guantanamo for as long as seven years simply happened to be in the wrong place at the wrong time. The Administration was claiming a Presidential power to deprive of all rights not enemy combatants, but people who it thought might be enemy combatants. In 1848, writing his friend William Herndon, Abraham Lincoln discussed a parallel claim of Presidential power. “Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him,--‘I see no probability of the British invading us"; but he will say to you, "Be silent: I see it, if you don't.’" The same argument applies to the Bush Administration claims, which effectively turned the President into a dictator holding the power of life and death over anyone he deemed dangerous.

I return in conclusion to the question of how Yoo and his colleague came to believe they could write such opinions. They represent a particular and widespread school of American legal thought today, one that has grown up over the last forty years, centered in the Federalist Society and holding important positions in law schools and, thanks to Republican Presidents, in the federal courts. Yet many of their broadest claims of Presidential power have never been endorsed by the Supreme Court. Many, in fact, have been specifically rejected, explicitly or implicitly, by that court, for instance in the Pentagon Papers case. Let us look for instance at the opinion of Justice Black, who joined the majority, discussing the same conflict between assertions of Presidential power on the one hand, and the Bill of Rights on the other. (In that case it was the First Amendment that was in question; in this opinion, the OLC argues that the Fifth and Eighth Amendments cannot restrain Presidential authority in wartime. Black’s reasoning applies in either case.)

“Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

“In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. [n1] They especially feared that the [p*716] new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. . . . The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. news, whatever the source, without censorship, injunctions, or prior restraints.”

The Bush Administration Justice Department failed to mention either that case, or, even more remarkable, Youngstown Sheet and Tube vs. Sawyer, in which the Supreme Court, through Justice Jackson, threw out President Truman’s seizure of the nation’s steel emergency, which he had also defended as an emergency measure in wartime. To have written this entire memorandum without once mentioning that decision is truly breathtaking, all the more so since Yoo’s statements about Congress’s supposed inability to interfere directly conflict with it. Here is a sample statement from the memo:

“In light of the President's complete authority over the conduct of war, in the absence of a clear statement from Congress otherwise, we will not read a criminal statute as infringing on the President's ultimate authority in these areas. We presume that Congress does not seek to provoke a constitutional confrontation with an equal, coordinate branch of government unless it has unambiguously indicated its intent to do so. . . .In the area of foreign affairs and war powers in particular, the avoidance canon has special force. In contrast to the domestic realm, foreign affairs and war clearly place the President in the dominant constitutional position due to his authority as Commander in Chief and Chief Executive and his plenary control over diplomatic relations.”

Here, on the other hand, is what Justice Jackson wrote:

“1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

“2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

“3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

This omission goes to their most fundamental violation of essential American law: the idea that the Executive Branch can make new law simply by asserting it. Much of this memo, as I have said, relies not upon statutes or court decisions, but rather on other OLC opinions written during the Nixon and Reagan Administrations, which Congress also found to have committed flagrant abuses of Presidential power, abuses serious enough to deprive Nixon of the Presidency. The OLC memo implicitly rejects Marbury vs. Madison, the most fundamental of all Supreme Court opinions, which made that Court the arbiter of what the Constitution says. Somehow, 35 years after Watergate, the nation needs once again to find a way of making clear that this is both illegal and worthy of some kind of punishment. I do not myself as yet feel sure what the best way of doing so might be, but I am told that it has been well-established that lawyers can give so obviously fraudulent legal advice as to make them parties to a conspiracy, for instance, in cases having to do with tax shelters. The OLC, in any case, was not designed, in my opinion, to grant immunity to members of the executive branch. Its opinions are only opinions, and if they depart sufficiently from American legal traditions that could certainly raise questions about the qualification of their authors to practice law.

Call it "Nationalism"

Many of the new readers flocking to this site--especially those who were relieved to find that I was not, in fact, the author of the widely circulated email comparing President Obama to Adolf Hitler, and that its attribution to me was false--have asked how something like this could take place--how such a screed could become popular, and how some one would dare misattribute it. [More information on the hoax and the origins of the article can be found here. The answer, I would suggest, lies in a psychological dynamic identified by George Orwell as "Nationalism," a form of identification with a country or a cause that creates a certain style of thinking and feeling. Orwell wrote his essay "Notes on Nationalism" in the early 1940s, at the height of the last great crisis in western civilization.
He was not referring to nationalism in the narrow sense of identification with one's own ethnic group, and still less to patriotism, which he defined in a revealing contrast as "devotion to a particular place and a particular way of life, which one believes to be the best in the world but has no wish to force on other people." Instead he meant, "the habit of identifying oneself with a single nation or other unit, placing it beyond good and evil and recognizing no other duty than that of advancing its interests." As Orwell continues, his analysis gets closer and closer to home--with the difference that our "nationalists" are fighting over the future shape of the United States itself.

"A nationalist is one who thinks solely, or mainly, in terms of competitive prestige. He may be a positive or a negative nationalist--that is, he may use his mental energy either in boosting or in denigrating--but at any rate his thoughts always turn on victories, defeats, triumphs and humiliations. He sees history, especially contemporary history, as the endless rise and decline of great power units, and every event that happens seems to him a demonstration that his own side is on the upgrade and some hated rival is on the downgrade."

"Political or military commentators, like astrologers, can survive almost any mistake, because their more devoted followers do not look to them for an appraisal of the facts but for the stimulation of nationalistic loyalties."

"As nearly as possible, no nationalist ever thinks, talks, or writes about anything except the superiority of his own power unit. It is difficult if not impossible for any nationalist to conceal his allegiance. The smallest slur upon his own unit, or any implied praise of a rival organization, fills him with uneasiness which he can relieve only by making some sharp retort."

"All nationalists have the power of not seeing resemblances between similar sets of facts. A British Tory will defend self-determination in Europe and oppose it in India with no feeling of inconsistency. Actions are held to be good or bad, not on their own merits, but according to who does them, and there is almost no kind of outrage--torture, the use of hostages, forced labor, mass deportations, imprisonment without trial, forgery, assassination, the bombing of civilians--which does not change its moral color when it is committed by 'our' side. " [Hmmmmmm]

"The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them. For quite six years the English admirers of Hitler contrived not to learn of the existence of Dachau and Buchenwald. And those who are loudest in denouncing the German concentration camps are often quite unaware, or only very dimly aware, that there are also concentration camps in Russia."

"Every nationalist is haunted by the belief that the past can be altered. He spends part of his time in a fantasy world in which things happen as they should--in which, for example, the Spanish Armada was a success or the Russian Revolution was crushed in 1918--and he will transfer fragments of this world to the history books whenever possible. Much of the propagandist writing of our time amounts to plain forgery. Material facts are suppressed, dates altered, quotations removed from their context and doctored so as to change their meaning. Events which it is felt ought not to have happened are left unmentioned and ultimately denied."

The Bush Administration's foreign policy was dominated by neoconservatism, surely a very important example of contemporary "nationalism" as Orwell defined it. Neoconservatives believe the United States has a sacred destiny to transform the world--which in practice amounts to eliminating any opposition to American interests--and that nothing but evil abroad and treachery at home stands in the way. Orwell also wrote that nationalists had a remarkable facility for switching sides, and some prominent neoconservatives such as David Horowitz and Melvin Olasky (the inventor of the the phrase "compassionate conservatism") began their adult lives on the extreme left. For thirty years economists, journalists and opinion leaders have sworn fealty to another kind of nationalism, free-market economics, in the name of which they denied the most basic facts about the connections between taxes, deficits, and economic growth. To be sure, nationalism has been popular on the left for the last thirty years was well, focusing in the 1960s on Cuba and China, and in the 1970s and 1980s on Palestine and leftist movements in Central America. Orwell did, however, identify two forms of nationalism that have become extraordinarily influential among western intellectuals, the first of which, indeed, dominates most university humanities departments today.

"COLOR FEELING. The old-style contemptuous attitude towards 'natives' has been much weakened in England, and various pseudo-scientific theories emphasising the superiority of the white race have been abandoned.[Note, below] Among the intelligentsia, color feeling only occurs in the transposed form, that is, as a belief in the innate superiority of the colored races. This is now increasingly common among English intellectuals, probably resulting more often from masochism and sexual frustration than from contact with the Oriental and Negro nationalist movements. Even among those who do not feel strongly on the color question, snobbery and imitation have a powerful influence. Almost any English intellectual would be scandalised by the claim that the white races are superior to the colored, whereas the opposite claim would seem to him unexceptionable even if he disagreed with it."

"PACIFISM. The majority of pacifists either belong to obscure religious sects or are simply humanitarians who object to the taking of life and prefer not to follow their thoughts beyond that point. But there is a minority of intellectual pacifists whose real though unadmitted motive appears to be hatred of western democracy and admiration of totalitarianism. Pacifist propaganda usually boils down to saying that one side is as bad as the other, but if one looks closely at the writings of younger intellectual pacifists, one finds that they do not by any means express impartial disapproval but are directed almost entirely against Britain and the United States."

"Nationalism" in the United States has now become big business, fueling vast media empires, including Clear Channel (the home of Limbaugh, Hannity and company) and Fox News. Since the election of President Obama, however, it has become almost entirely negative in character. To be sure, much of the right-wing reaction to the President shows classic nationalist traits. Limbaugh, Hannity and the rest didn't seem at all concerned when President Bush doubled the national debt in eight years, but now they rant for hours on end about the burdens Obama is imposing upon future generations. Rather than spending much time proving that Republican policies are right, however--which, to be sure, is a difficult task after the last eight years--they spend nearly all of it accusing the Administration of various sins. Racism and sexism, alas, also play an important role in this kind of nationalism. Rush Limbaugh's racist remarks and parodies have recently been documented, and some one at the Drudge Report seems to be charged with finding a new, unflattering picture of Hillary Clinton, Janet Napolitano, or Nancy Pelosi to put up on the site every day. Another Orwell point is relevant here too:

"Moreover, although endlessly brooding on power, victory, defeat, revenge, the nationalist is often somewhat uninterested in what happens in the real world. What he wants is to FEEL that his own unit is getting the better of some other unit, and he can more easily do this by scoring off an adversary than by examining the facts to see whether they support him. All nationalist controversy is at the debating-society level. It is always entirely inconclusive, since each contestant invariably believes himself to have won the victory. Some nationalists are not far from schizophrenia, living quite happily amid dreams of power and conquest which have no connection with the physical world. "

Today's New York Times confirms this in a story about Republicans rallying the base against an Obama Supreme Court nominee:

May 17, 2009
Conservatives Map Strategies on Court Fight
By CHARLIE SAVAGE
WASHINGTON — If President Obama nominates Judge Diane P. Wood to the Supreme Court, conservatives plan to attack her as an “outspoken” supporter of “abortion, including partial-birth abortion.”

If he nominates Judge Sonia Sotomayor, they plan to accuse her of being “willing to expand constitutional rights beyond the text of the Constitution.”

And if he nominates Kathleen M. Sullivan, a law professor at Stanford, they plan to denounce her as a “prominent supporter of homosexual marriage.”

Preparing to oppose the confirmation of Mr. Obama’s eventual choice to succeed Justice David H. Souter, who is retiring, conservative groups are working together to stockpile ammunition. Ten memorandums summarizing their research, obtained by The New York Times, provide a window onto how they hope to frame the coming debate.

The memorandums dissect possible nominees’ records, noting statements the groups find objectionable on issues like abortion, same-sex marriage, the separation of church and state and the propriety of citing foreign law in interpreting the Constitution.

While conservatives say they know they have little chance of defeating Mr. Obama’s choice because Democrats control the Senate, they say they hope to mount a fight that could help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats.

“It’s an immense opportunity to build the conservative movement and identify the troops out there,” said Richard A. Viguerie, a conservative fund-raiser. “It’s a massive teaching moment for America. We’ve got the packages written. We’re waiting right now to put a name in.”

Gary Marx, executive director of the conservative Judicial Confirmation Network, said donors, whom he declined to identify, had committed to contributing millions of dollars for television, radio and Internet advertisements that might reunite conservatives in a confirmation battle.

In 2003 a senior White House official told Ron Susskind, whom he characterized as a member of the "reality-based community," that "We're an empire now, and we create our own reality." This is the classic fantasy of such nationalists in power, such as the Nazis, Stalinists, and Maoists, and Susskind apparently did not have the presence of mind or the bad manners to remind his interlocutor that reality has a nasty way of imposing itself sooner or later.

Orwell's whole essay, of course, prefigures 1984, which he probably already had in his head when he wrote it. That classic work really is based upon the fantasy of the "senior White House official" come true--the Party controls reality, because it can torture anyone into not only believing, but loving, Big Brother. It deals, really, with the eternal struggle among power lust, intellectual integrity, and sensuality, which in the character of Julia becomes an ally of Winston's rationalism against Party rule. Once again we come to the eternal drama of modern human life: our never-ending struggle to allow our rational faculties to check our emotions.

Note to new readers: these posts always appear on weekends, generally one per weekend, sometimes two. To be informed of new posts simply put your email in the box next to the feedblitz icon, in the right margin under the ad, and hit "Subscribe me." Hope to see you back.

Saturday, May 09, 2009

A Great Fear?

This week, hundreds of people will see this post because of an email that has been circulating fraudulently under my name. The main purpose of these commentaries, as regular readers know, is to use the past to gain perspectives upon the present. In the same way that a skilled physician or therapist can relate the patient before them in the office to cases from their previous experience, I have tried to find analogies to current events, confirming Thucydides's prediction that his work would be useful to those who wanted to understand the events of his day, "which, human nature being what it is," would recur, in much the same way, in the future. I have been doing this at least since I began teaching full-time 33 years ago, but the perspective that William Strauss and Neil Howe provided in the 1990s has made it a lot easier, by identifying the particular kind of era, or Turning as they put it, a nation is in at a given moment. That analysis will again come in handy today. I began writing these commentaries in the fall of 2004 and the first four year's worth are available now as a book, History Unfolding; Crisis and Rebirth in American Life, 2004-2008. To order it simply click on the appropriate link in the list of books at right.

The "event" which I shall take as my text today is a small one but, in its own way, significant: the very widespread circulation of an email on the current state of the nation, comparing President Obama to Adolf Hitler, which has been attributed in thousands--probably tens of thousands--of copies to myself. Based on the experience of the last couple of weeks (see below), I estimate that between one and two thousand new readers will be reading this post this week to find out who I am and if, indeed, I did write it. The answer, of course, is no--I didn't--even though it has probably made me more famous, certainly in a shorter period of time, than any of my six books at right. More importantly, I think this viral phenomenon is in its own way a significant historical event, precisely because it reflects the age that we are living in, and resembles similar occurrences that have convulsed other nations that were also in the midst of defining crises--such as France in 1789, when the French Revolution began.

I have in front of me a slim volume, The Great Fear of 1789, written by one of the greatest of French historians, Georges Lefebvre, who lived from 1874 to 1959. It recounts a series of extraordinary events in French towns, and especially in the countryside, during the summer of 1789. Late that spring, by royal proclamation, the three orders of French society, the nobles, clergy, and commoners, sent representatives to the first Estates-General called in 175 years, beginning the climactic phase of the first great crisis in modern French political life. The trigger for the crisis--like those experienced by Germany and the United States in the first years of the 1930s, and the one that we are entering now--was a financial panic (coupled with a bad harvest), but that was only half the story: all those nations had experienced other severe economic downturns without such transformative effects. What made them all so severe was the simultaneous death of the old order: the French Old Regime, whose decline was described by another Prophet, Tocqueville, in one of the greatest classics of western historical writing, The Old Regime and the French Revolution; the free-market capitalist system created by the Republicans after the Civil War, and restored to full vigor, after a Progressive interlude, in the 1920s; and the Weimar Republic, the successor to Imperial Germany, which had not been able to create vibrant new institutions in the midst of successive economic crises in the 1920s.

The death of an old order, like the death of a parent, is a traumatic and unnerving event. Things fall apart, the center cannot hold, and terror is abroad in the land. In 1789, as Lefebvre shows, the peasantry feared brigands, or bandits, who had customarily emerged to steal the harvest in times of famine. But as the Estates-General came into conflict with each other and with the King over the issue of whether they would become a National Assembly, voting together under rules that would give the common people a majority, they also feared a royal or aristocratic coup that would end their hopes--so ardently expressed in the instructions written for their deputies--for a new and more democratic order. Throughout the summer, rumors of national and local treachery spread like a fire around the countryside, and the common people, in town after town, acted pre-emptively. They formed their own militias like the American colonists in 1774-5; they seized the documents that entitled landlords to feudal dues, and burned them; they even burned down castles and drove their lords away. In this case the issues that concerned the peasantry--the conditions under which they worked their land and the future of the revolution--were real enough, but the nationwide conspiracy that drove them to action that summer was not. Anarchy did not immediately follow, and for two or three years it seemed possible that France might make a peaceful transition to a Constitutional monarchy. But in 1791 the King and Queen tried to flee the country, hoping to restore all their power with foreign help, in a year later they were overthrown, tried, sentenced, and eventually executed. Terror now became state policy, setting a precedent that repeated itself in various countries again and again for the next century and a half.

Thus, in Russia, the old order began its violent death in 1905, when failure in war provoked a first round of revolution and terrorism--one that was never really checked until the war. Moreover, as my friend and colleague William Fuller has shown in his recent book, The Foe Within, the upper reaches of Russian society were also transfixed by intrigue, accusations of fantastic conspiracy, and an almost total absence of civic virtue--phenomena that brought the Empire down in 1917 and brought the Bolsheviks to power with the help of the peasantry, which played a role similar to that that its French counterparts had in the 1790s. Russian readers of Fuller's book have commented on the troubling similarity between the conditions it describes and Russia today.

Fear, of course, was rampant in Germany and in the United States, the two countries most affected by the Depression from 1928 through 1932, as well--fear of hunger and starvation, and of anarchy, which was actually much more serious in Germany, where Socialist, Communist and Nazi militias were battling in the street, often with fatal consequences. Fear was the essence of Nazi propaganda, which painted Germany's wretched state as the more or less conscious work of Marxists and Jews. That, of course, was false. The biggest single cause of Germany's catastrophe was the previous world war, which the Germans had done so much to unleash, only to spend the entire decade of the 1920s denying their own responsibility. Fear and hatred had already led to the assassination of several moderate statesmen involved in the signature of the Versailles Treaty and agreements on reparations. Upon coming into power, Hitler seized upon the burning of the Reichstag to announce a nationwide Communist plot, suspend civil liberties and the Parliament, formally deputize the Nazi SA as law enforcement officials, and open lasrge concentration camps. The same pattern continued for the rest of the Third Reich.

Across the Atlantic, nothing so clearly illustrated the brilliance of Franklin Roosevelt's leadership than the most famous words of his inaugural address: "So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance." His weapon against it, then and for the next twelve incredible years, was to remind the American people of their basic values, bluntly to describe the enormous problems they faced, and then to explain simply and clearly how they would emerge. The President's sense of humor, his optimism, and most of all, perhaps, his evident joy at having been called to power at such a moment, carried most--though never all--of the country with him. Lincoln, in even darker times, had done much the same. (As always when I have to consult one of Roosevelt's texts, I am astonished by the range of issues he covered and their relevance to the present day. Who remembers these words from the inaugural:

Plenty is at our doorstep, but a generous use of it languishes in the very sight of the supply. Primarily this is because rulers of the exchange of mankind's goods have failed through their own stubbornness and their own incompetence, have admitted their failure, and have abdicated. Practices of the unscrupulous money changers stand indicted in the court of public opinion, rejected by the hearts and minds of men.

True they have tried, but their efforts have been cast in the pattern of an outworn tradition. Faced by failure of credit they have proposed only the lending of more money. Stripped of the lure of profit by which to induce our people to follow their false leadership, they have resorted to exhortations, pleading tearfully for restored confidence. They know only the rules of a generation of self-seekers. They have no vision, and when there is no vision the people perish.

The money changers have fled from their high seats in the temple of our civilization. We may now restore that temple to the ancient truths. The measure of the restoration lies in the extent to which we apply social values more noble than mere monetary profit.

Happiness lies not in the mere possession of money; it lies in the joy of achievement, in the thrill of creative effort. The joy and moral stimulation of work no longer must be forgotten in the mad chase of evanescent profits. These dark days will be worth all they cost us if they teach us that our true destiny is not to be ministered unto but to minister to ourselves and to our fellow men.


All this, however, brings me to the notorious email that has been circulating, which can be read here. It is, alas, a typical product of a crisis age, which explains its extraordinary resonance around the country. That we are in a crisis is true--one that involves our financial and economic system, our educational system, and (although it has little specific to say here), our foreign policy. Yet its dreadful mistake--so characteristic of crisis literature--is to attribute all these ills to some deep, unnamed conspiracy apparently dedicated to the destruction of the United States. There is no such conspiracy: as I have argued here many times before, our own behavior, on a mass scale, has brought us to where we are today, just as it did in the late 1850s and the late 1920s. The deregulation of the economy and the speculative orgy that followed were begun by the Republican Party in the 1980s but with the exception of balancing the budget in the 1990s (an achievement immediately thrown away by George W. Bush), the Democrats have done little or nothing to halt it until now. We are facing a crisis abroad because our successes, from 1945 through 1989, have only persuaded us that we should be able to work our will anywhere on earth, even as our actual power shrinks. The need for different values is every bit as great now as it was when FDR spoke of it in March 1933--indeed, the failure of either President Obama or any other major politician to make such a declaration suggests that it is greater. The email's comments on our ills are 100% partisan and thus calculated to divide the American people still further. What is frightening is how much resonance such rants seem to have.

For the past few weeks that email, with my name on it, has been spreading, literally, like a flu virus. What is most astonishing is its nearly constant rate of infection, measured by the hits on this blog. For several years now hits have totaled between 150 and 200 on Sundays, Mondays and Tuesdays--that is, in the wake of a new entry--declining steadily during the week to about 100 before a new entry appears. The figures for the last ten days are 456, 450, 367, 350, 404, 590, 559, 554, 499, and 502--more than 4500 hits, compared to a normal 1000, or 3500 new hits. But that 3500 can only be a fraction of the number of people who received the email, most of whom would not have taken the time to reach my blog. And to judge from the emails I (and my namesake at another university) have received, as well as the people who have reached me by phone, the vast majority of people who have received it agree with it.

Why? At bottom, I think, its popularity represents the fear which the death of our old order is naturally creating. Fear dominates the Drudge report and cable news as well--the coverage that a relatively minor flu outbreak has received is merely the last piece of evidence for that. Closer to home, of course, the email is popular because it is only marginally more inflammatory than the commentary Americans can hear or watch 24 hours a day on talk radio or Fox News. They too make no effort actually to understand our problems and how they might be solved, but simply spend all their time trying to exploit them for partisan advantage. Newspapers are dying for many reasons, but one is that the modern American newspaper stood for an ideal of objectivity in which very few Americans, sadly, still believe. The post-print media, actually, will resemble in many ways the media of the nineteenth century--far more outlets, but nearly all of them representative of one particular shade of opinoin, and with less attention, sadly, to the facts. But that may in turn give a great opportunity to political leadership that is willing to fill the vacuum with real data, if we can find such.
To those who have been brought here by an email that I did not write, may I say that we remain fellow citizens. Our country was founded by men who believed that human reason can make a better world. Let us not throw away that legacy by surrendering to terror, hatred, and other raw emotions. Let us work for an America where, once again, Democrats and Republicans can not only co-exist but work together. Such cooperation gave us every great national achievement from the 1930s through the 1960s, from the public works programs of the New Deal through our victory in the war, the GI Bill, Social Security, and the great civil rights acts. It can do great work again. Every year, as a Democrat teaching at the Naval College, I have one or two students who start out wondering how they will ever be able to work with someone like me. Within a few weeks, almost without exception, they have found that it doesn't hurt at all. That's because the class deals with the proper application of military force--a problem whose solution depends on using the facts, not on ideology. That is the spirit that we all need to try to spread.

Saturday, May 02, 2009

Foreign policy wisdom

The fraudulent email attributing to me an article that compares President Obama to Adolf Hitler continues to circulate, and during the last week it generated more than 2000 hits on this blog, a record. To those new visitors (and there seem to be many every day) who have reached this spot because of it, let me say at once that I did not write it, do not agree with it, and would appreciate you hitting "reply all" to the email that you received and letting everyone know this. But please do read the post that follows, which will give you the blog's true flavor, and please return.

President Obama has often been compared to John F. Kennedy, and with good reason. Both are young, striking in appearance, and accompanied by beautiful wives and captivating children. Both are keenly appreciate being the first Presidents of their generation. Both put together consensus cabinets--Kennedy's, in a more non-partisan era, included Republicans as Secretaries of Defense and Treasury and as National Security Adviser--and both favor calm, relatively unemotional rhetoric that takes care to say no more than what they mean. And having written most thorough account of Kennedy's Vietnam policies ten years ago in American Tragedy, I am struck by the similarities between the situation that Kennedy faced in Southeast Asia in 1961 and the one President Obama faces in Southwest Asia today--and I ardently wish Obama could get some of the same kind of advice.

Kennedy, as I discovered, did not quite inherit a full-blown war in Southeast Asia, although the Eisenhower Administration seemed on the point of intervening in a civil war in Laos when he came into office. In Laos the Eisenhower Administration had used its favorite weapons, covert action and military aid, to maneuver a weak pro-western government into power in 1957, but it was now under attack from neutralist forces and the much smaller Communist Pathet Lao. In Vietnam the Diem government--another Eisenhower legacy--had raised questions about its inability to govern, and now faced a growing Viet Cong insurgency. More importantly, the Eisenhower Administration had laid the bureaucratic foundation for war by laying down policies, approved by the President, that committed the US to fight, alone and with nuclear weapons if necessary, if Communist aggression threatened either Laos or Cambodia. Kennedy's Cabinet officers and NSC staffers unanimously accepted those recommendations and in the first half of the 1961 he was deluged with recommendations for intervention in Laos, and, shortly thereafter, for combat troops in South Vietnam. He was not interested--and in June 1961, when he stopped in Paris on his way to meet with President Charles de Gaulle, he received some very interesting advice.

De Gaulle was the only figure in the great Atlantic crisis of the twentieth century to play the role of Bismarck in Germany in the crisis of the nineteenth, that is, not only to lead his nation through the crisis itself, but to preside over the High that followed and supervise the creation of new institutions. Roosevelt, of course, died before the war was over--although he had created critical domestic institutions in the 1930s, before the war began--and although Churchill returned to power in the early 1950s he had little domestic impact. De Gaulle began literally by creating a new French government out of nothing in 1940 when, as a junior cabinet minister and major general, he flew to London and declared himself the government of France. By dint of rallying parts of the French Army in the colonies, opening up contacts with the Resistance, and sheer stubbornness, he eventually convinced both Churchill and Roosevelt to recognize him as the new French President. The war, however, in which France had initially been defeated and emerged victorious only with allied help, could not give him the prestige necessary to remake France. The new Fourth Republic was a carbon copy of the weak Third, and de Gaulle, disgusted, resigned the Presidency in 1946. His party in Parliament became a nationalist opposition, dedicated to the failed attempts to hold onto the French Empire. The loss of Indochina in 1954, however, did not bring him into power. Four years later, the government's hesitation over Algeria, where a new rebellion was raging, led to a military coup in the colony and de Gaulle's return to power. He immediately created a new Fifth Republic--and by 1959 he was reversing his policies.

No one was ever more dedicated to French greatness than de Gaulle, but his genius lay in the recognition that the idea of greatness had to be adapted to new historical circumstances. France, he recognized, simply could not retain its formal empire--even in Algeria, where the population included one million Europeans--in the twentieth century. By 1961, when Kennedy arrived in Paris, he was well on his way to a negotiated settlement and withdrawal. Early in that year he had faced down another attempted coup by the Algerian generals, this one designed to overthrow him in France. Several generals had gone into hiding and were fighting a terrorist rear guard action in Algeria as they met--their leader, Raoul Salan, was arrested just a few weeks later. Kennedy always sought, and took very seriously, the opinion of foreign leaders--a trait Obama would do well to emulate. Here is the key part of their conversation.

"The President [Kennedy] raised the question of Laos. In his opinion, the United States has made mistakes in the past. As a result, it is now in a difficult situation. There exists a commitment on the part of the United States and on the basis of the Geneva Protocols and of SEATO. This commitment must be taken into account. The U.S. Government has been seeking a cease-fire and neutralization of Laos. This, however, may no longer be possible. It would have been possible three years ago, but the situation is different now. The immediate question is what to do at the conference in Geneva.

"General de Gaulle said that the situation is "compromised." He does not wish to harp on the past; when it seems the U.S. had the unfortunate illusion that Laos could be made into something strong. In fact. Laos is an unhappy country with no unity, either political or national; it is, in fact, a nonentity which cannot be built up into anything at all. The presence of the U.S. in Laos brings with it Soviet intervention; in any struggle in Laos, the Soviets have the advantage because of their propaganda and because they have devoted efficient agents while we do not. Therefore, the situation is very bad indeed. The question is what to do. The best solution seems to be to encourage the King to form a government which would not be fully and exclusively Communist. It is clear that the Pathet Lao would be in the government as it is too late to prevent them from entering into one, but they might not be in such government alone. Souvanna Phouma should be encouraged. The French know him well. He is not a Communist. He is trying to use the Communists and the Communists are trying to use him but he is not a Communist himself and he has friends. He might be able to establish a government which would make Laos "more or less" neutral. It would be better if the West did not appear to apply any pressure, as by doing so, it would lose the last cards it has to play. Without doing it openly, it would be good to encourage Souvanna Phouma and to encourage the King to take Souvanna Phouma as prime minister. The Government will include Communists but will not be fully Communist. Moreover, the French are authorized by the Geneva Agreements to maintain some influence in Laos. They can have a small military advisory group and also teachers and technicians. No Laotian wants such French advisors to leave, and these can constitute a sort of listening post for the West in Laos. . . .

"More generally speaking, Southeast Asia, and that applies to Laos, Viet-Nam, Cambodia, and even Thailand, is not a good terrain for the West to fight on. The best thing to do is to encourage neutralism in that area, the more so that the Soviets themselves do not have any strong desire to move in. They will, however, tend to follow every time the West moves in.
"The President said that the U.S. is faced with two problems, one of them being the commitment under the SEATO Protocols. Mr. Dulles and President Eisenhower entered into such commitments. President Kennedy has reaffirmed them in the hope of arriving at a cease-fire. At the present moment, the prestige of the United States is engaged and if the solution to the Laotian problem is a Communist one, there can be grave repercussions not only in Thailand, in Viet-Nam, and in Malaya, but also in India, Pakistan, Iran, and Turkey--all the countries along the southern flank of the Soviet Union. It may have been unwise on the part of the United States in the past to have committed itself to this part of the world but the fact is that those commitments exist at the present moment and the question is how to disengage in the best possible way. Secondly, there are commitments also in regard to Thailand and southern Viet-Nam and, there again, it is difficult to avoid the consequences of such commitments. The President agreed that the Soviets may not seek a penetration in south Viet-Nam but the Viet Minh does and it is probable that it would have sought to penetrate into Viet-Nam regardless of whether the U.S. would or would not have been present there. The question is what to do in regard to Viet-Nam and to Thailand. The U.S. is seeking to help those countries, in particular through military training, and the question is not especially in regard to Viet-Nam whether such aid will be successful. It must, nevertheless, be tried as an abandonment of those countries by the U.S. would have repercussions elsewhere in the countries which were mentioned before and also in the Philippines, South Korea, and even Japan.

"General de Gaulle said that he understood the difficulties with which the United States is faced. France was deeply engaged in Indo-China and had to leave that country under circumstances which the President undoubtedly remembers. Yet France has kept some influence in those countries, but she can keep that influence only because she does not undertake any military action, or any action in the military field, in either Laos, Cambodia, or Viet-Nam. It seems that to have an influence in those countries and to exercise a military action in them are mutually contradictory. In the minds of the people of that area, any military action is equivalent to a desire to rule them.
"Of course, it is not easy to change policies. Yet, it is not so difficult either, especially if it can be done in coordination with Nehru and with the Japanese. There exists a genuine Western influence in the Pacific and Indian Oceans but in some areas the best way to further that influence is to seek neutrality even if that neutrality is only more or less genuine. In the countries of Southeast Asia the West can keep its influence only without military commitments, by extending its influence on a cultural plane and also by avoiding to give too much money to those countries. Money makes them corrupt and the governmental corruption makes government unpopular. This is what is happening at the present moment in South Viet-Nam.

"The President said that the problem for the U.S. is that it has treaty commitments and has been identified with those commitments. If the United States withdraws, Viet-Nam and possibly Thailand might even collapse. It is true that these countries and especially Viet-Nam might collapse even without the U.S. backing out. We must, however, think of the consequences. The part played by those countries in regard to Asia is perhaps identical with the part played by Berlin with regard to Europe. Already the fact that the U.S. has not intervened in Laos has created great difficulties for us in the Philippines. If now we were to withdraw from Viet-Nam and Viet-Nam were to collapse, that could be taken as a precedent, especially if it were done voluntarily.

"General de Gaulle said that he agreed with the President as to the difficulty of the situation. This difficult situation is due to past mistakes in policy. At the time when France withdrew from Indo-China, the ties of the countries concerned with the West were ties with France. After a military withdrawal of the French, those ties were little by little strengthened in the economic and the cultural areas. The U.S. unfortunately felt obligated to more or less replace France in Indo-China. This was not good and now we are suffering the consequences. France does not intend to repeat the mistakes of the past and feels that it will not intervene, at least not militarily and not at present. . .

"President de Gaulle recalled the war France waged in Indo-China. He stated his feeling that a new war could not lead anywhere even if waged by the U.S. If the U.S. feels that its security or its honor compelled it to intervene, the French will not oppose such an intervention but will not participate in it, except of course if it were to lead to a world-wide war, in which case France would be always at the side of the U.S.

"The President said that in the immediate future, the only thing to do is to try to coordinate in the best possible way the positions of the delegations in Geneva. He himself is extremely reluctant to think of an intervention in Laos, a country with only two air strips and no access to the sea. . .

"General de Gaulle said that he was not certain that the situation was all that bad. The West still has many possibilities, as long as it refrains from military action. It still has influence. French influence had never been as strong as since the French armies had left the area. There is a constant demand for French teachers and specialists, and a constant increase in the number of students in French schools not only in South Viet-Nam but even in North Viet-Nam including Hanoi.
"President Kennedy said that this might be because hostility towards the U.S. has replaced hostility towards its friends. If the U.S. is forced out, France may no longer appear as the lesser evil. The President further stated that he had visited both Saigon and Hanoi in 1951 and he saw the scope of the French effort. France had a lot of troops and good troops in Indo-China. He understands as a consequence that any intervention in that part of the free world have to be a major operation.
"General de Gaulle said that such indeed would not be the case, and the worst thing that could happen to the West would be a military defeat. To sum up, General de Gaulle said that what should be used is careful diplomacy and to seek a return to the Geneva Agreements of 1954."

President Obama, sadly, has inherited a more difficult situation in Afghanistan and Pakistan (not to speak of Iraq) than President Kennedy inherited in Southeast Asia. Had a de Gaulle--or even a George H. W. Bush--been able to talk to the second President Bush, he might easily have made the point that limited American military intervention in the Middle East had done much to create Al Queda and make Osama bin Laden a significant figure, and more military intervention would only make the situation worse. So it has, and not only in those countries. Since 2001 Hezbollah has become far stronger in Lebanon, Hamas has taken over the political leadership of the Palestinian people (in fact if not in name), a new Israeli government is set to repudiate the peace process, and Iraq is fragmented and vulnerable to American influence. Worst of all, the long-term presence of American troops and American firepower in Afghanistan has not only allowed the Taliban to make a comeback there, but the attempt to enlist Pakistan as an ally--despite the longstanding alliance between the Pakistani government and the Afghan Taliban--has led to a Taliban insurgency that has gained control of large parts of Pakistan, while the Pakistani government gets weaker and weaker.

President Obama's Southwest Asia policies are in the hands of Secretary of State Clinton and Special Envoy Richard Holbrooke. The former seems to have become a very conventional foreign policy thinker, while the latter is nearing the half-century mark in his diplomatic career, during which he has consistently shown frightening self-confidence. There is no sign that either one of them has grasped what I and many others regard as the critical element of the situation: the poisonous effect both of American firepower and an excessively close American embrace on regimes in the Muslim world. As de Gaulle told Kennedy, military intervention inevitably carries with it the impression of a desire to rule, and too much money increases corruption. These, in my opinion, are the reason that we are faced with a crisis of historic proportions. It is also rather fascinating to note--and no one who knows Asia disputes this--that the United States is now far more popular in Vietnam, where we eventually abandoned our military intervention, than in either North or South Korea, where our intervention continues.

Faced with the threatened disintegration of nuclear-armed Pakistan, the Administartion--including the President--are, I regret to say, reverting to some of the worst habits of American diplomacy. Here is the President's response last Wednesday to a question about Pakistan:

"I'm confident that we can make sure that Pakistan's nuclear arsenal is secure -- primarily, initially, because the Pakistani army I think recognizes the hazards of those weapons falling into the wrong hands. We've got strong military to military consultation and cooperation. I am gravely concerned about the situation in Pakistan not because I think that they're immediately going to be overrun and the Taliban would take over in Pakistan; more concerned that the civilian government there right now is very fragile and don't seem to have the capacity to deliver basic services -- schools, health care, rule of law, a judicial system that works for the majority of people. And so as a consequence it is very difficult for them to gain the support and the loyalty of their people.

"So we need to help Pakistan help Pakistanis. And I think that there's a recognition increasingly on the part of both the civilian government there and the army that that is their biggest weakness.

"On the military side you're starting to see some recognition just in the last few days, that the obsession with India as the mortal threat to Pakistan has been misguided, and that their biggest threat right now comes internally. And you're starting to see the Pakistan military take much more seriously the armed threat from militant extremists.

"We want to continue to encourage Pakistan to move in that direction. And we will provide them all the cooperation that we can. We want to respect their sovereignty, but we also recognize that we have huge strategic interests, huge national security interests in making sure that Pakistan is stable and that you don't end up having a nuclear armed militant state."

No matter how great the truth of what the President said, we should all have learned long ago that publicly lecturing foreign governments--especially Muslim governments in the Third World--about their responsibilities and trying to redefine their priorities simply does not work, partly because following their advice turns us into American puppets. Instead of talking publicly about the need for Pakistan to pay more attention to the Taliban and less to India, we should be privately encouraging those two states to resume the attempt to settle the Kashmir question which was apparently pursued by Pervez Musharraf before he left office. And meanwhile, we need to abandon the fantasy that even if the Taliban did take power, we could attempt to repeat the experiments of intervention in Afghanistan and Iraq, this time in a country with well over one hundred million people.

Our goals in Afghanistan look fairly hopeless today as well. Kennedy had the wisdom to avoid intervening in landlocked Laos; we are encountering huge problems supplying our forces in landlocked Afghanistan, since convoys have been vulnerable to Taliban attacks going through Pakistan and other central Asian states are reluctant to allow us to establish bases. Kennedy in the early 1960s had one advantage over Obama in facing possible third world intervention: he had many far more important things to worry about. Most Americans knew that Western Europe, Berlin, and Japan were our vital interests, and Cuba was our biggest problem closer to home. Now, thanks to the relative calm (at least for the moment) in the richer parts of the world, we are obsessed with areas lacking any intrinsic value. The only solution to the Pakistani nuclear weapons problem is the one the President has proposed: the elimination of all nuclear weapons. Let us hope that this will be a real priority, not a gesture--and that perhaps, within eight years, American opinion will see Afghanistan returning, to quote a great American about Vietnam, to the obscurity which it so richly deserves.

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