November 16th, 2007

Politics Rant: The Imperial Presidency

It's been a while since I've posted on current affairs. There's been a lot to think about and it's taken a while to boil things down a bit.

The most disturbing thing that came out in the confirmation hearings for now-Attorney General Mukasey was not his reluctance to declare waterboarding torture (issue discussed separately in a following entry) but that he actually came out and said that the President could authorize people to violate the law in the nation's defense. I really was shocked that Mukasey, who has had a decent record as a jurist, would have "drunk the Kool-Aid" that quickly and accepted the Bush/Cheney line on the "powers" of the "Unitary Executive," especially since this idea is so very wrong, so very dangerous, and so very, very, contrary to the principles our nation was founded upon.

Some of you reading this journal know that I went to Law School and practiced law quite activley for sixteen years before going into another career. Therefore, I visualized this scenario.

Phone at Mukasey home: Ring, Ring!

A.G. Mukasey: Hello?

Yale: Hello, Judge Mukasey. This is Yale Law School. We're calling to tell you we want the LL.B we awarded you back. After hearing your testimony before the Senate, we've decided to retroactively flunk you in Constitutional Law--.

The thing is, this whole "Unitary Executive" and "inherent powers of the President as Commander-in Chief" thing is bullshit. To the extent it is being pushed today, it is a pipe-dream concocted by Cheney, Rumsfeld and other power-hungry creatures, not justified by any reasonable interpretation of the Constitution. It is intended to make the office of the President predominant and insulated from either Congressional oversight or control by the courts, grossly overthrowing the "separation of powers" and "checks and balances" ideals that are central to our governmental system.

Article 2, Section 2, of the Constitution provides, in pertinent part: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"

Article 2, Section 3, provides: "he shall take Care that the Laws be faithfully executed,"

Note that there is nothing in either of these very brief sections giving the President the authority to override or ignore the laws that Congress has made. In fact, it could be argued that Mr. Bush's notorious "signing statements" wherein he purports to reserve exceptions to laws he has nevertheless signed, are a clear statement of intent to commit malfeasance in office.

The true balance of powers should be that, if ANY branch of government should be preeminent, is should be the Congress. The President is the people's elected head of the executive branch, but the Congress IS the People "in Congress assembled." To put it in business terms, the President may be CEO, but the Congress is the Board of Directors. Note that while the Congress may remove the President, unlike some other govermental systems, the President cannot dismiss Congress or remove any of its members. Only the Congress itself can unseat one of its own. Admittedly, the Congress is an unwieldly body to exercise directed authority, but the Congress has been supinely complict in the usurpation of its authority, and is only now beginning to fight back.

The founders of our nation expressly eschewed kingly authority. They knew of their own experience what that entailed. Washington, who might have had it, refused the idea of wearing a crown. How saddened he would be to know that his current follower in office has devoted so much effort to seeking and weilding the power of an autocrat.

These are the most crucial question we must ask of any of our current class of Presidential candidates for the next election, and I hope that anyone who reads this who gets a chance will pose them to anyone they can:

If elected, will you: seek revision of the Patriot Act and repeal of the Military Comissions Act? Will you forswear torture, rendition, warrentless searches, and holding of United States' detainees in foreign prisons; and will you seek legislation making such practices clearly illegal?

If we can't get some clear answers to these questions, I will be very worried for our future as a nation.

Irony, much?

And speaking of the Imperial Presidency, did anyone else note the high irony in George W. Bush telling Pervez Musharraf that he has to step down as military leader, when Bush himself justifies his wholesale civil rights and Constitutional law violations by his powers as "Commander in Chief"?

Torture, why we don't need it, and why the government shouldn't have it to use.

There was considerable discussion of Attorney General Mukasey's refusal to outright condemn "waterboarding" as torture in his confirmation hearings. it has been persuasively argued that he was required to do so in order to provide a "shield" for CIA and other operatives who have used the practice in the past based on prior Justice department rulings (the notorious "torture memos") that the practice was legal, and might be exposed to civil or criminal prosecution in the event the practice was explictly outlawed.

While I'm sure this was in fact a consideration, the argument is fallacious in a number of ways, specifically that, if the operators were working under the interpretation of the laws they were given at the time, an "ex post facto" revision of the laws should not subject them to liability. I am more concerned that the goverment wishes to keep the door open for the use of this and other forms of torture in the future.

Is waterboarding torture? Unquestionably. There have been a number of recent accounts of the experience published, but, lest anyone feel that these might be "overdone" due to the current political clime, I will refer the reader of any of the numerous accounts of what happened to aircrews of the famous "Doolittle Raid" of 1942 who fell into Japanese hands. These prisoners of war were subjected to ferocious abuse at the hands of their captors, including a couple of varieties of "water torture" including the proceess with the towel tied over the face and water poured on it that we now know as "waterboarding." The first-person accounts by these genuine heros leave no doubt that it is a terrible torture. (And I'd like to see someone try to characterize the Doolittle Raiders as "phoney soldiers"--. Excuse the side rant, but in my considered opinion, Rush Limbaugh is a yellow-bellied pantywaist who is not fit to clean the dust off the boots of anyone who's joined our armed services, let alone been "downrange" in Iraq or Afghanistan. How dare he criticize when he doesn't even know which end of the rifle the round comes out of? End rant--).

Is torture useful? Most experts say no. There are other ways to gain intelligence, and I'm not adverse to "sweating" a suspect or using other stern interrogation techniques, but physical abuse tends only in the end to get the answers the interrogator wants.

The "ticking bomb" scenario is always trotted out as a justification for having torture in the toolkit. This is the Jack Bauer "24" situation where the authorities have a terrorist in custody who knows where the infernal device is, and very limited time before the catastrophy happens, killing thousands if not millions. In point of fact, this situation has never occured historically, and the chance it would occur is vanishingly small. (Note: if someone CAN cite an incident where this actually happened, I would be glad to hear of it--.) Most of the time, where bomb plots are intercepted, it is well in advance and no bombs have been placed. Otherwise, the bomb goes off. And realistically, in this situation, the suspect has every incentive to hold out. After all, he KNOWS when the disaster is set to go off, and that he only has to hang on a few more hours or minutes for the effort to succeed.

Let's, just for the sake of argument, assume this scenario has really occured. We have the "bad guy" in custody, and we know he knows the location of the stolen nuclear weapon that is set to go off in a few hours, and we have a disposal team standing by if only we know where the bomb is. All attempts at reasonable persuasion have failed, so "Jack" out of desperation, shoots "Bad Guy" in the kneecap, causing terrible pain and probably permanent crippling, and threatens to do the same to his remaining knee and elbows unless he talks. Has "Jack" violated the laws as they presently stand?

The interesting answer is, possibly not. Every US jurisdiction recognizes "affirmative defenses" to what would otherwise be criminal acts. Most people are familiar with "self-defence", in which a person is justified in using force against another which would ordinarily be criminal, if they reasonably believe that doing so is necessary to save themselves or another from harm at the hands of that other. However, Wisconsin Statutes also include the following:

"939.45 Privilege. The fact that the actor’s conduct is privi-leged, although otherwise criminal, is a defense to prosecution forany crime based on that conduct. The defense of privilege can be claimed under any of the following circumstances:
(1) When the actor’s conduct occurs under circumstances of coercion or necessity so as to be privileged under s. 939.46 or 939.47; or
(2) When the actor’s conduct is in defense of persons or property under any of the circumstances described in s. 939.48 or 939.49; or
(3) When the actor’s conduct is in good faith and is an apparently authorized and reasonable fulfillment of any duties of a public office; or
(4) When the actor’s conduct is a reasonable accomplishmentof a lawful arrest;"

Coercion is defined as:

"939.46 Coercion. (1) A threat by a person other than the actor’s coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first−degree intentional homicide, the degree of the crime is reduced to 2nd−degree intentional homicide."

So, "Jack" has a very viable defense to any criminal charge. The "problem" with this is that "Jack" is still liable to prosecution and may be subject to having his actions "second-guessed" by a judge and jury. Is this fair?

In a word, YES! That is the way the American system is supposed to work. We give law-enforcement agents great power on the condition those powers are used responsibly, and subject to review. This is the check on the use of that power: if you can't stand up in court and say, "Yes, I did it. It was the only thing to do at the time, and if the conditions were the same I'd do it again," then you SHOULDN'T DO IT. The dangerous thing about blanket authorizations of torture or warrantless searches or whatever, is that there is no review, no oversight. The agents so empowered have the ability to torture whomever they want for whatever reason, with no accountability. This makes them no different than any dictator's thugs, and they are free to use torture as punishment and for its "in terrorem" effect on the populace instead of its limited, arguable, useful purpose.

Torture=bad. It is not only bad for the victims, it is bad for the torturers, and corrosive to the systems that employ it. Any situation that would justify its use would be so rare and so exceptional that it should be dealt with on its own as the extraordinary case it would be. That our administration continues to demand the right to torture at will, without review and without responsibility, is the sign of a deep and dangerous rot having set in.

Book (and strategy) review: "House to House," by SSG David Bellavia

Lately, I've been on a "kick" reading recent memoirs of the war in Iraq: "One Bullet Away," by Nathaniel Fick; "Love My Rifle More Than You," by Kayla Williams, and "House to House," by David Bellavia. All of these are excellent works. They are by lower ranking personnel who have been in the front lines of operations in Iraq: Fick as a Marine lieutenant, Williams as an Army Intelligence Specialist, and Bellavia as an Army infantry Staff Sergeant. they all fully and fairly show our military's features and flaws and the impact of both on the people who have gone to serve.

I was particulary struck by Bellavia's book. The majority of it describes his experiences as an infantry squad leader during the opening days of the Second Battle of Fallujah, November 8-12, 2004. The "First" battle had been in April 2004, when a largely Marine Corps contingent had been comitted and then withdrawn without achieveing anything conclusive. The second battle involved both Marines and Army and was set up with a lenghty preparation that involved surrounding and cutting off the city, interdicting all traffic in or out. Civilians, women, children, the aged, and unarmed men were permitted to leave, although many were detained until cleared of being suspected insurgents. By the time the Army and Marines went in, the city was largely abandoned except for committed enemy. The bad news was that the insurgents had used the time to turn the city into a deadly maze: streets were mined and houses were wired with explosives; buildings were fortified and rooftops turned into fighting positions; walls were torn down and doorways bricked up to create shooting galleries and killing grounds, while the mujahadeen moved by tunnels and hidden ways. Bellavia and his platoon were among the first units to enter and penetrate deeply into the city.

Bellavia has written a deeply personal, brutally honest narrative of what he saw and did. It is not for the faint of heart or the weak of stomach, as he does not stint in describing the effects of modern weaponry on his men and the enemy. He also does not hold back in describing his actions, sometimes brutal, and sometimes admittedly stupid. He gives us his raw emotions: rage, fear, sorrow, as they occur. Combat is intense, close up, and often literally hand to hand: he describes one battle in which, separated from the rest of his unit, he is wrestling an enemy in a dark room and, with no other weapon to hand, bludgeons the foeman's face with his helmet. It is a very telling, graphic, and well-written memoir that I believe captures the experience of an infantryman in an intense combat situation.

The question Bellavia's book leaves me with is: was it worth it? He and his men were in combat without relief until November 17th, and suffered heavy casualties. No American unit since Vietnam suffered so many deaths among its leaders: Bellavia's Captain, a platoon Lieutenant, and the unit's Command Sergeant Major were all killed in action among the other killed and wounded. Bellavia thinks the sacrifice was worth it: with others he has founded the very interesting web site which seeks to bring out positive news and views about the military in Iraq and Afghanistan.

Having read the book, I am not so sure. We had turned Fallujah into a sort of insurgent's "roach motel" in which they were trapped. They responded by forting up as described above, and daring us to come in and get them. This was a dare we took, but did we have to do it that way? Isn't one of the basic rules of strategy in warfare or sports not to play the opponent's game? But that was what we did: we sent our solders in to fight house-to-house, a type of combat universally acknowleged to be the most dangerous and difficult. Bellavia's unit avoided total destruction a couple of times only by minutes of timing, or, as he himself acknowleges, sheer dumb luck. Other units were not as lucky. They were faced with a trained, well equipped, and highly motivated enemy, willing to use suicidal tactics and often "hopped up" on drugs that let them ignore pain. Bellavia's unit was often outnumbered and not infrequently came within an ace of losing "fire superiority." Eventually American training, doctrine, equipment, and sheer weight of arms prevailed, but at terrible cost. Was this necessary?

Many considerations apply: I accept that the American people are too impatient to have settled for a long seige, trying to starve the insurgents out. But if we had turned the entire town into a free-fire zone (and, according to Bellavia's narrative, that's essentially what it was) why not stand back and destroy it instead of doing the equivalent of sending our troops into the thicket after a wounded lion? There's no doubt in my mind we could have reduced the city to rubble with shellfire and air bombing, so why didn't we? We would still have had to winkle the surviors out of the ruins, but it would have been an easier job with their defenses disrupted.

My guess is, that our leaders chose a face-to-face battle to show that we could do it--to show that we could meet the enemy hand to hand and beat him. To have stood off and carpet-bombed the town might have been effective, but would not have dispelled the common canard that the Americans do not have the "guts" for down-and-dirty combat. This sort of thing can be a serious consideration in warfare. The inverse case happened in the American Revolution: the colonists were conducting a sucessful "insurgency" against the British, but the British did not acknowlege it until we beat them in a stand-up fight using their own tactics at Yorktown. Similarly, it may have been perceived that as long as the insurgents believed that their dedication made them the superior of American troops when it came down to war to the knife they had no reason to surrender, but if we showed them we were their superior in all forms of combat, perhaps the will to resist would be eroded. Perhaps a viable theory, but, sadly, in the years of struggle since 2004, it does not seem to have worked.