Daniel Ellsberg is best known for leaking what became known as the Pentagon Papers — a 7,000-page collection of classified U.S. government documents giving a frank assessment of the unlikely prospects for winning the Vietnam War — to the New York Times in 1971. The publication of those documents was instrumental in turning public opinion against continuing the war. The Bush Administration is continuing the efforts — begun before we even started pulling out our troops — to rewrite the history of the Vietnam War, and particularly to argue that it was only because America "lost its nerve" that we didn't achieve total victory. On Tuesday, Ellsberg came to the University of California's Boalt Hall Law School in Berkeley to talk about the Bush Administration, torture, the erosion of civil liberties, and the efforts to dismantle our very system of government. He focused particularly on John Yoo, a professor at Boalt Hall who also serves as one of the key architects of the Bush Administration's legal theories. I present here some of the points Mr. Ellsberg made, intermixed with some commentary and analysis of my own.
Read more...The U.S. Senate voted this week to expand the definition of enemy combatant to include anyone who commits or supports hostilities against the United States. Given the Bush Administration's quaking in fear over the supposed ambiguity of phrases like outrages upon personal dignity, it seems odd that they would encourage such an ambiguous phrase as supports hostilities against the U.S. Further, the Senate proposal would allow the President to suspend the habeas corpus rights of anyone he declared to be a threat. Those rights have roots going back for centuries before the formation of this country, and even before the western European discovery of the Americas. Bush and his cronies delight in tarring their opponents with the tag of pre-9/11 thinking, and Senator Russ Feingold (D–WI) denounced the P.A.T.R.I.O.T. Act as pre-1776 thinking, but the Bushies are engaging in pre-1215 thinking, allowing for a single individual to order the indefinite detention of any person with no legal recourse to even challenge their status as enemy combatants.
The United Nations released a report a few days ago, claiming that torture in Iraq today is at levels above and beyond what was practiced under Saddam Hussein's rule. Many readers of this blog cast a jaundiced eye towards anything coming from the United Nations, so let's say, just for the sake of argument, that the U.N. report is wildly exaggerated, and in fact torture in Iraq today is only half as bad as under Saddam. That's a little bit like saying, "I stopped beating my wife with a baseball bat; now I only use a rubber strap." Torture isn't something like air pollution, where a little bit is inevitable. No amount of torture is acceptable, period.
John Yoo is one of a handful of legal scholars who hold extraordinarily extreme views of Presidential prerogatives. In one instance, 178 noted legal scholars joined together to denounce Yoo's interpretations of the Constitution and other fundamentals of law. Yoo believes that the President has the unchallenged authority to start a war. (Ellsberg has some experience with Presidents starting wars without bothering to consult the Congress: he worked for LBJ when that President led us into the Vietnam War.) Yoo also believes that there are no limits whatsoever, imaginable, concrete or hypothetical, to the President's unilateral authority as Commander-in-Chief in a time of war.
The United States Constitution is conspicuously silent on the matter of "war powers," unlike, for instance, Weimar Germany or ancient Rome. The limitations imposed by the U.S. Constitution apply equally in war or in peace, with rare exceptions, such as the ability for the Congress to suspend habeas corpus in time of rebellion or invasion. Even that power, though, cannot constitutionally be invoked for an overseas war.
Many legal experts agree that Yoo's interpretation of the Constitution is completely unfounded. Yoo claims that it was the clear intent of the Founding Fathers to continue the English king's power to start war, and that Congress' declaration of war is a mere formality, a recognition of a state of war that already exists. That interpretation stands the Constitution on its head. The precise purpose of the Constitution was to deny the President the power to start a war except to repel an attack. Even Andrew Jackson, an advocate of an expansive view of Presidential power, said that, unlike the king, the President cannot start a war. Yoo points to precedents such as President Truman's instigation of the Korean War without consutling Congress, but Senator Robert Taft, known as "Mr. Republican," took the lead in denouncing Truman's unilateral prosecution of the war. Time and again, Yoo takes examples of Presidential abuse of power and, rather than using them as cautionary tales to prevent their repetition, he uses them as precedents to justify ever more egregious abuses. Ellsberg said, "After Vietnam, I came to see that the Founders' intent was right." Yoo maintains that there are literally no limits to Presidential power in a situation of war, which by all accounts we will be in for the indefinite future.
Yoo also believes that the President is not bound by the United Nations charter, by treaties that have been duly ratified by the U.S. Senate (making them, under Article VI of the Constitution, "the supreme law of the land"), by any laws (hence Bush's reams of "signing statements" signalling his intention to disregard laws he doesn't like), or even decisions of the United States Supreme Court. Harold Koh, the dean of Yale Law School, said when the Bybee memo was leaked that under the interpretation advocated by John Yoo, the President can order torture, reinstitute slavery, or do anything else he wants.
Doug Castle, a professor at Notre Dame, posed Yoo a hypothetical situation: suppose the President says that he has to torture a prisoner by crushing the prisoner's son's testicles. Yoo responded that there was no law or treaty that could obstruct the President's "inherent authority" to make that judgment. Experience, from the Mafia and other organized crime organizations to the governments of countries like Egypt, Jordan, Morocco, and Uzbekistan, demonstrates that threatening relatives is more effective in extracting accurate information than torturing the prisoner him- or herself. There are eyewitness accounts from the secret prisons currently operated by the United States of situations such as a mother being forced to watch as an interrogator forcibly sodomizes her son. Now that's what I call real Christian family values!
John Yoo points to the World War II detention of Japanese-Americans and Abraham Lincoln's suspension of habeas corpus in the Civil War as precedents for the President's authority to order indefinite detention of terror suspects, but in doing so he not only ignores the revulsion those precedents evoke, he also overturns precedents of restraint pre-dating even Magna Carta. John Yoo wants to establish not a democracy, not even a constitutional monarchy, but an absolute monarchy, which is to say a dictatorship. President Bush only went before Congress seeking the Authorization to Use Military Force (AUMF) for the Iraq War because of Secretary of State Colin Powell's insistence; John Yoo and others argued that it was unnecessary. The Founders viewed "unnecessary, evil wars" — wars of choice by the king — as the greatest danger to the people. Abraham Lincoln condemned President James Polk for provoking a war with Mexico, noting that the Founders said that the worst danger is for one man to get us into a war.
In 1776, roughly 1/3 of the American people supported the Revolution, another 1/3 supported the king, and the remaining 1/3 were indifferent. Alexander Hamilton wanted the executive to have all the powers of a king except the power to start a war. Daniel Ellsberg started out as a Lieutenant in the Marine Corps, then moved as a civilian to the Defense Department, and then to the State Department. He viewed himself as the President's man, and viewed the Congress with contempt. In Vietnam, he saw that he was wrong. The Founding Fathers pledged their lives, their fortune, and their sacred honor, for the principles on which the Revolution was founded.
Ellsberg chastised the rest of the Boalt Hall faculty for failing to speak out against John Yoo's extreme positions: "Boalt Hall professors are outrageously failing their responsibility as reputable teachers" to oppose these radical interpretations. He went on to outline what he saw as the Administration's likely measures to consolidate power after the next 9/11-like event:
Of course, one obvious question is, how do we know that the NSA still has any limitations in practice? If Bush felt that he could order them to eavesdrop on communications involving "United States persons" in direct, incontrovertible, 180° violation of the FISA Act, what is to stop him from ordering them to expand their surveillance, for example to find out who leaked the National Intelligence Estimate or some other bit of embarrassing information? As for detentions, the CIA operates a non-secret prison at the Bagram air base in Afghanistan, with conditions that are even worse than Guantánamo Bay. President Bush claims to have transferred the last 14 detainees from the secret CIA prisons to Gitmo, but the exact wording he used leaves him some weasel room: he only said that there are no more prisoners under that particular CIA program; he didn't say that there weren't other secret CIA prisons under some other program.
enabling the executive under the Weimar constitution to rule by decree without consulting the Reichstag
Ellsberg also raised alarm bells about the imminent possibility of an attack on Iran. Leaked memoranda — although it isn't clear whether they are authentic or planted by the administration — indicate that military commanders have been given a deadline of 2006-10-01, mere days away, to present comprehensive plans for attacking Iran and effecting régime change there. The Air Force appears to be confident that with repeated pinpoint bombing, they can blast through the bunkers in which the Iranian nuclear activities are conducted, but the other services do not share their confidence and believe that only a nuclear attack could take out Iran's nuclear capabilities. There is also the possibility of an Israeli attack, but, given the tentativeness of American plans to prevail with only conventional weapons, Israel would certainly have to go nuclear. Could Bush be desperate enough to provoke a war with Iran as an "October surprise" as a last-ditch gamble to retain control of both houses of Congress? I certainly hope, as I'm sure Mr. Ellsberg does, that it doesn't come close to that, but it's frightening to think how close we are to having a madman start a nuclear war — and I'm not talking about Ahmadinejad.
Technorati tags: Daniel Ellsberg, Torture, John Yoo, Constitutional Law, Politics, Founding Fathers, Iraq War, Iran, CIA secret prisons, Guantánamo, Gitmo
Wednesday, September 27, 2006
Daniel Ellsberg on Torture
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