Archive for the ‘USA’ Category

Time to Stop Playing the Victim Role

February 24, 2009

By Philip Slater | The Huffington Post, Feb 23, 2009

I can understand that after centuries of persecution it’s satisfying for a Jewish state to be the aggressor for a change, but there’s a codicil that goes with that role. You don’t get to act like a victim any more. “Poor little Israel” just sounds silly when you’re the dominant power in the Middle East. When you’ve invaded several of your neighbors, bombed and defeated them in combat, occupied their land, and taken their homes away from them, it’s time to stop acting oppressed. Yes, Arab states deny your right to exist, threaten to drive you into the sea, and all the rest of their futile, helpless rhetoric. The fact is, you have the upper hand and they don’t. You have sophisticated arms and they don’t. You have nuclear weapons and they don’t. So stop pretending to be pathetic. It doesn’t play well in Peoria.

(Yes, I know, we Americans should talk–always trembling in our boots about terrorists and ‘rogue states’ and ‘evil empires’ when we have enough nukes to blow up entire continents, and spend more on arms in an hour than most of the world’s nations spend in a year. But just because we’re hypocrites and Nervous Nellies doesn’t mean you have to be).

Calling Hamas the ‘aggressor’ is undignified. The Gaza strip is little more than a large Israeli concentration camp, in which Palestinians are attacked at will, starved of food, fuel, energy–even deprived of hospital supplies. They cannot come and go freely, and have to build tunnels to smuggle in the necessities of life. It would be difficult to have any respect for them if they didn’t fire a few rockets back.

The Israel lobby has a hissy fit when anyone points out that Israel has been borrowing liberally from the Nazi playbook, but to punish a whole nation for the attacks of a few–which Israel has been doing consistently in Gaza–is a violation of international law–a law enacted in response to the Nazi practice. And please, spare us the hypocrisy–borrowed, I’m ashamed to admit, from my own government–of saying ‘every effort is made to avoid civilian casualties’. When you drop bombs on a crowded city you’re bombing civilians. Bombs don’t ask for ID cards. Bombs are civilian killers. That’s what they do. They’re designed to break the spirit of a nation by slaughtering families. They were used all through World War II by all sides for that very purpose. And that’s what they’re intended for in Gaza.

And please, Israel, try to restrain yourself from using that ridiculous argument, borrowed again from Bush (how low can you get?), that Hamas leaders “hide among civilians”, by living in their own homes. Apparently, in the thinking of Israelis, they should all run out into an uninhabited area somewhere (try to find one in Gaza), surround themselves with flares and write in the sand with a stick, “Here I am!”

Yesterday you shelled three UN-run schools, killing several dozen children and adults, despite the fact that the UN had given you the precise coordinates of all its schools in Gaza. So much for ‘taking every care to avoid civilian casualties’. You seem to feel you can kill whomever you like, whenever you like, and wherever you like, just because you have a blank check from the United States. Every day this assault goes on you’re demonstrating contempt for the UN, the international community, and human life. Talk about a rogue state.

You might also pay attention to the fact that your outdated policy of macho bullying–the policy you’ve been following for decades–isn’t working! The Palestinians are human. They’re not dogs you can beat into submission. The worse you treat them, the more they’ll fight back. That’s what it means to be human. The more you oppress people, the more people resist. We dropped more bombs on Viet Nam than all the bombs dropped by all nations in World War II. Not to mention napalm, herbicides and all kinds of sophisticated land mines. But did they bow down and kiss the feet of their conquerors? They did not.

You’ll have to kill them all. And when you do, you may finally lose the support even of the United States.

Remember that American support is based entirely on the notion that no politician can win without the Jewish vote. But not all American Jews think Israel is on a divine mission from God. A great many American Jews believe in international law and justice.

I can understand how Israel could resent this lecture coming from an American. After all, isn’t this what we Americans did? Came into someone else’s country, slaughtered 95% of its inhabitants and took over? And didn’t we go all Nervous Nellie whenever they fought back, accusing them of aggression to justify even more genocidal slaughter? And didn’t we get away with it?

Yes, but I’m sorry to tell you, Israel, you came on the scene too late. Genocide just doesn’t fly any more. I know it isn’t fair, you have every right to feel aggrieved about this, but the world’s smaller, cowboys are passé, and bullies aren’t heroes any more.

Sen. Hollings: Why are we in Afghanistan?

February 23, 2009

Sen. Fritz Hollings | The Huffington  Post, Feb. 18, 2009


I keep asking the question, “Why are we in Afghanistan?” No one has a good answer. A few without television respond, “To get Osama.” But everyone agrees that he is somewhere in Pakistan. Then the answer is:  “As President George W. Bush said, ‘to spread democracy.'” The Brits tried to spread democracy for years. The Russians tried to spread communism for years. But democracy must come from within. I helped liberate Morocco, Algeria, Tunisia, sixty-eight years ago and they have yet to opt for democracy. We liberated Kuwait eighteen years ago and they have yet to opt for democracy. In the Muslim world more important than freedom and democracy is tribe and religion. We have made the good college try for over seven years and now should realize that we are not going to teach warlords to like democracy and grow cotton instead of poppies.

Now some answer to prevent Afghanistan from becoming a safe haven for Al Qaida. I called the State Department after 9/11, and it reported Al Qaida in forty-five countries, including the United States, but not Iraq. Now we have spread Al Qaida to Iraq and determined to have Al Qaida grow in Afghanistan. What we can’t understand is that we are creating terrorism in Afghanistan and Pakistan. The Taliban were our best friends in Charlie Wilson’s War — the only war we’ve won since World War II. I helped Charlie on the Senate side. I didn’t know what was going on, but he was getting Israel to send Stinger missiles to Muslim Pakistan to shoot down the Russians. Now we are determined to turn our former friends into enemies and destroy Pakistan. Yesterday I read an article that it won’t be long before charging President George W. Bush with war crimes for killing civilians in Pakistan with drones. Now the same charge could be made against President Obama. Five years ago, I was in Pakistan to learn that Osama bin Laden had a sixty percent approval rating and President Bush was at ten percent. I wouldn’t advise an America to walk the streets of any city in Pakistan today. We are ruining Pakistan. Finally, I’m given the answer, “to stabilize Afghanistan.” The best way to stabilize is to get out. It became a matter of conscience for me years ago. I always remember the Wartime Prayer found in Eleanor Roosevelt’s papers:

“Dear Lord, lest I continue my complacent way, help me to remember that somewhere, somehow out there, a man died for me today. As long as there be war, I then must ask and answer, Am I worth dying for?”

Why are we killing GIs to spread terrorism?

Suspend military aid to Israel, Amnesty urges Obama after detailing US weapons used in Gaza

February 23, 2009

• White phosphorus shells traced back to America
Activists call for arms embargoes on both sides

Relatives mourn a Palestinian man killed by Israeli soldiers in Gaza

Relatives mourn a Palestinian man killed by Israeli soldiers in Gaza, last month. Photograph: Eyad Baba/AP

Detailed evidence has emerged of Israel’s extensive use of US-made weaponry during its war in Gaza last month, including white phosphorus artillery shells, 500lb bombs and Hellfire missiles.

In a report released today, Amnesty International detailed the weapons used and called for an immediate arms embargo on Israel and all Palestinian armed groups. It called on the Obama administration to suspend military aid to Israel.

The human rights group said that those arming both sides in the conflict “will have been well aware of a pattern of repeated misuse of weapons by both parties and must therefore take responsibility for the violations perpetrated”.

The US has long been the largest arms supplier to Israel; under a current 10-year agreement negotiated by the Bush administration the US will provide $30bn (£21bn) in military aid to Israel.

“As the major supplier of weapons to Israel, the USA has a particular obligation to stop any supply that contributes to gross violations of the laws of war and of human rights,” said Malcolm Smart, Amnesty’s Middle East and North Africa programme director. “To a large extent, Israel’s military offensive in Gaza was carried out with weapons, munitions and military equipment supplied by the USA and paid for with US taxpayers’ money.”

For their part, Palestinian militants in Gaza were arming themselves with “unsophisticated weapons” including rockets made in Russia, Iran and China and bought from “clandestine sources”, it said. About 1,300 Palestinians were killed and more than 4,000 injured during the three-week conflict. On the Israeli side 13 were killed, including three civilians. Amnesty said Israel’s armed forces carried out “direct attacks on civilians and civilian objects in Gaza, and attacks which were disproportionate or indiscriminate”. The Israeli military declined to comment yesterday.

Palestinian militants also fired “indiscriminate rockets” at civilians, Amnesty said. It called for an independent investigation into violations of international humanitarian law by both sides.

Amnesty researchers in Gaza found several weapon fragments after the fighting. One came from a 500lb (227kg) Mark-82 fin guided bomb, which had markings indicating parts were made by the US company Raytheon. They also found fragments of US-made white phosphorus artillery shells, marked M825 A1.

On 15 January, several white phosphorus shells fired by the Israeli military hit the headquarters of the UN Relief and Works Agency in Gaza City, destroying medicine, food and aid. One fragment found at the scene had markings indicating it was made by the Pine Bluff Arsenal, based in Arkansas, in October 1991.

The human rights group said the Israeli military had used white phosphorus in densely populated civilian areas, which it said was an indiscriminate form of attack and a war crime. Its researchers found white phosphorus still burning in residential areas days after the ceasefire.

At the scene of an Israeli attack that killed three Palestinian paramedics and a boy in Gaza City on 4 January, Amnesty found fragments of an AGM114 Hellfire missile, made by Hellfire Systems of Orlando, a joint venture of Lockheed Martin and Boeing. The missile is often fired from Apache helicopters.

Amnesty said it also found evidence of a new type of missile, apparently fired from unmanned drones, which exploded into many pieces of shrapnel that were “tiny sharp-edged metal cubes, each between 2 and 4mm square in size”.

“They appear designed to cause maximum injury,” Amnesty said. Many civilians were killed by this weapon, including several children, it said.

Rockets fired by Palestinian militants were either 122mm Grad missiles or short-range Qassam rockets, a locally made, improvised artillery weapon. Warheads were either smuggled in or made from fertiliser.

The arsenal of weapons was on a “very small scale compared to Israel”, it said, adding that the scale of rocket arsenal deployed by Hizbullah in the 2006 Lebanese war was “beyond the reach of Palestinian militant groups”.

Armed for war

Israelis Missiles launched from helicopters and unmanned drones, including 20mm cannon and Hellfire missiles. Larger laser-guided and other bombs dropped by F-16 warplanes. Extensive use of US-made 155mm white phosphorus artillery shells and Israeli-made 155mm illuminating shells that eject phosphorus canisters by parachute. Several deaths caused by flechettes, 4cm-long metal darts packed into 120mm tank shells, and fragments of US-made 120mm tank shells.

Palestinians Militants fired rockets into southern Israel including 122mm Grad rockets of either Russian, Chinese or Iranian manufacture, and smaller, improvised Qassam rockets often made inside Gaza and usually holding 5kg of explosives and shrapnel.

The Case for a Truth Commission

February 22, 2009
This Abu Ghraib detainee was reportedly threatened with electrocution if he fell.
This Abu Ghraib detainee was reportedly threatened with electrocution if he fell.

By Patrick Leahy, Time, Thursday, Feb. 19, 2009

More than 30 years ago, a special Senate investigation peered into abuses that included spying on the American people by their own government.

The findings by Senator Frank Church’s committee, drawn from testimony spanning 800 witnesses and thousands of pages of government documents, revealed how powerful government surveillance tools were misused against the American people. For instance, the FBI’s COINTELPRO operation spent more than two decades searching in vain for communist influence in the NAACP and infiltrated domestic groups that, for example, advocated for women’s rights. The Church committee’s work led to creation of the Senate Select Committee on Intelligence and later to the Foreign Intelligence Surveillance Act–reforms that largely held until the Bush years. (See George W. Bush’s biggest economic mistakes.)

The parallels with today are clear, and so are the lessons. Then, as in recent years, some were willing, in the name of security, to trade away the people’s rights as if they were written in sand, not stone. For much of this decade, we have read about and witnessed such abuses as the scandal at Abu Ghraib, the disclosure of torture memos and the revelations about the warrantless surveillance of Americans.

So what is to be done about the abuses of the Bush years? Some say do nothing, and a few Senators even tried to make Attorney General Eric Holder promise in his confirmation hearings to launch no prosecutions for Bush-era lawbreaking. At the opposite end of the spectrum, others say that even if it takes many years and divides the country and distracts from the urgent priority of fixing the economy, we must prosecute Bush Administration officials to lay down a marker. The courts are already considering congressional subpoenas that were issued earlier as well as claims of privilege and legal immunities. Those cases will stretch out for some time, as would prosecutions–taking even a decade or longer. Moreover, it is easier for prosecutors to net those far down the ladder than those at the top, who set the tone and the policies.

There is another option, a middle ground whose overarching goal is to find the truth: we need to get to the bottom of what happened–and why–to make sure it never happens again.

One path to that goal is to appoint a truth-finding panel. We could develop and authorize a person or group of people universally recognized as fair-minded and without an ax to grind. Their straightforward mission would be to find the truth. People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments but to assemble the facts. If needed, such a process could involve subpoena powers and even the authority to obtain immunity from prosecution in order to get to the whole truth.

During the past several years, the U.S. has been deeply divided. This has made our government less productive and our society less civil. President Obama is right in saying that we cannot afford extreme partisanship and debilitating divisions. As we commemorate the Lincoln bicentennial, there is a need, again, “to bind up the nation’s wounds.” Rather than vengeance, we need an impartial pursuit of what actually happened and a shared understanding of the failures of the recent past.

This is not a step to be taken lightly. We need to see whether there is interest for this in Congress and the new Administration. We need to work through concerns about classified information and claims of Executive privilege. Most of all, we need to see whether the American people are ready to take this path.

In the meantime, Congress will work with the Obama Administration to fix those parts of our government that went off course. But to repair the damage of the past eight years and restore America’s reputation and standing in the world, we should not simply turn the page without being able first to read it. A recent USA Today/Gallup poll showed that more than 60% of Americans agree that investigating the failed national-security policies of the past eight years should be considered.

Two years ago, I described the scandals of the Bush-Cheney-Gonzales Justice Department as the worst since Watergate. They were. We are still digging out from the debris. We need to get to the bottom of what went wrong after a dangerous and disastrous diversion from American law and values. The American people have a right to know what their government has done in their names.

Leahy, a six-term Democratic Senator from Vermont, is a former prosecutor and the chairman of the Senate Judiciary Committee

Investigating Bush’s Crimes

February 21, 2009

by Scott Horton | The Nation,  Feb 21, 2009

When the Obama transition team opened a questions referendum on its popular change.gov website in December, one issue quickly soared to the top. “Will you appoint a Special Prosecutor (ideally Patrick Fitzgerald) to independently investigate the gravest crimes of the Bush Administration, including torture and warrantless wiretapping?” And when Obama stepped to the microphone at his first presidential press conference, the question came again, this time with reference to a Congressional call for a truth commission. Obama’s response: “My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen; but that generally speaking, I’m more interested in looking forward than I am in looking backwards.” The answer was a slight variation on the theme he has struck consistently since the final days of his campaign. But what does it mean with respect to the criminal accountability of Bush-era policy-makers? Many are inclined to hear confirmation of their hopes–Republicans eager to see the disastrous Bush years passed over without more fuss will stress the intention not to “look back,” while Obama supporters who embraced his strong criticism of Bush’s torture and surveillance policies will emphasize his observation that “nobody is above the law.” Others are displeased with the ambiguity and press for a conclusive decision on the question.

But these exchanges give us the essence of the “no drama Obama” style: he builds support with lofty rhetoric, giving some sense of his policy objectives, but he consciously avoids committing himself to any particular resolution. Obama is not being coy, I think. He means precisely what he says. Accountability is not a part of his affirmative agenda, least of all for his first hundred days, on which the long-term success or failure of his presidential term may hang. An economic stimulus package, healthcare initiatives and a series of foreign policy challenges occupy center stage. Even in the Justice Department, Obama’s first objectives involve restoring the institution’s self-confidence and resurrecting its historical role in civil rights and voting rights enforcement. It’s not that Obama and his senior advisers see the accountability issue as inherently unimportant–on the contrary, they readily admit that it may be the key to long-term resolution of a series of questions surrounding the abusive extension of presidential power. But it is clearly a back-burner issue for them, something better addressed near the end of his first term or, better still, during a second term.

Obama’s problem is that a growing number of Americans are concerned about what the Bush administration did and are eager to press the issue. The extent of public concern has been reflected in several recent public opinion polls, including one in February by USA Today showing that nearly two-thirds of Americans support investigations of the Bush administration’s use of torture and warrantless wiretapping; roughly 40 percent support criminal investigations.

And the shift in public opinion is not the only thing transforming the environment in Washington on this issue. Susan Crawford, a Cheney protégée and the senior Bush administration official responsible for the military commissions in Guantánamo, told the Washington Post‘s Bob Woodward that she refused to approve the charges against Mohammed al-Qahtani because he had been tortured. Torture is, of course, a felony under US law, and if multiple figures are involved, it might well be “conspiracy to torture,” a separate crime. As ABC News reported and President Bush later confirmed, the full book of proposed techniques to which Qahtani was subjected had been approved by the National Security Council, headed by Bush. A senior Obama Justice figure remarked after reading the Crawford interview that it would be “impossible to sweep the matter under the carpet.” That’s a view that seems to be shared by US allies and United Nations officials, who, pointing to Crawford’s admissions, are asking why the United States has failed to introduce a criminal inquiry into how torture came to be practiced as a matter of US policy. Articles 4 and 5 of the Convention Against Torture require the United States to prohibit torture under domestic criminal law and to investigate and prosecute incidents in which it is practiced. The failure even to begin criminal investigations has placed the United States in breach of its obligations under the treaty, a point that even torture apologists like University of Chicago Law School professor Eric Posner freely concede.

President Bush was widely expected to issue blanket pardons to those involved in his interrogations and surveillance programs, but he did not do so. Moreover, the Bush administration’s tenuous claim to legality for its torture programs was ended immediately after Obama assumed office, when he directed a reassessment of interrogation policies and revoked all of the relevant Bush-era Justice Department opinions with the stroke of a pen.

Obama has been careful to avoid any suggestion that he or his senior officers are directing a criminal investigation or prosecution of the Bush-era torture enablers. He is right to do so. The criminal justice system of a democratic state should not operate like a well-oiled military machine taking its cue from the commander in chief. It requires professional prosecutors who operate with critical detachment from political officials when they pursue criminal investigations. Moreover, the painful circumstances of the torture and surveillance programs, particularly the fact that senior Justice Department officials were complicit in their implementation at almost every step, make it an ethically doubtful proposition for the Justice Department even to take up the matter.

Up to this point, political influence has been used to block accountability. Investigations are still under way at the Justice Department and other agencies that touch on important aspects of the Bush administration’s detainee policy. One probe is looking into the mysterious destruction of evidence of interrogations using highly coercive techniques that was sought in pending criminal cases. Another probe, nearly complete, is examining the circumstances behind the crafting of the notorious torture memos in the black hole of the Bush Justice Department, the Office of Legal Counsel. Under the Bush administration, these and other investigations were often bottled up, as senior officials refused to cooperate and the White House–which functioned as the nerve center for Justice Department political operations–refused to turn over documents. On occasion, they were shut down directly by order of President Bush. One criminal investigation launched by FBI agents at Guantánamo was ordered closed by the head of the Justice Department’s criminal division, Alice Fisher, who may herself emerge as a target of a criminal investigation. Under the transparency policies Obama announced during his first week, and under the detainee policies he is busily putting in place, the administration will unblock internal probes and mandate that federal employees, including White House employees, cooperate with them. Realization that this was in the works may have given rise to President Bush’s January 16 “gag letters” issued to Karl Rove, Harriet Miers and Joshua Bolten, instructing them to keep quiet in the face of a Congressional probe about their dealings with the Justice Department.

Leading Congressional Democrats are proposing a way forward. In January House Judiciary Committee chair John Conyers announced a blue-ribbon panel to be appointed to conduct an investigation. He is also proposing that the statute of limitations be modified to take the time pressure off potential criminal investigators. Senate Judiciary Committee chair Patrick Leahy put forth a proposal of his own a few weeks later in a presentation at Georgetown University. Leahy pressed the idea of a “truth commission,” similar to the approach used in South Africa after the fall of the apartheid regime. Bush administration officials who come forward and offer a full accounting of their deeds could get immunity for their testimony; those who keep silent or give false statements could face prosecution. The Leahy and Conyers approaches share a number of elements, including the notion that the commission would consist of eminent people who are “above the political fray,” would get subpoena power and would be fully staffed and resourced. Both Conyers and Leahy cite the 9/11 Commission as a model–a Congressionally authorized commission backed by presidential authority, a hybrid model that would eliminate some of the potential legal challenges that a purely Congressional commission might face. Conyers is, however, far more concerned about building a solid record that can form the basis of prosecutions, whereas Leahy offers immunity as a reward for candor.

There are unmistakable signs of momentum in support of a commission approach in Washington. Nancy Pelosi and other Democratic Congressional leaders who once sang in the “let’s forgive and forget” choir are now signaling their support for a commission. But what about the Obama White House? Following a meeting between Leahy and Greg Craig, Obama’s White House counsel, the White House was committed only to an ongoing discussion.

But the commission approach may, depending on some critical details, offer the best solution to the impasse. Moreover, it may well suit Obama’s needs for the commission to be the creation and initiative of Congress rather than of his administration. It would allow a comprehensive investigation without embroiling the White House in the process. A commission would be in a position to put to rest some persistent questions, particularly regarding how torture came to be embraced as a matter of policy and whether the administration ever got actionable intelligence from tortured suspects that could conceivably offset the immense damage that torture has done to the moral authority of the United States around the world. Most significant, if a commission recommended a criminal investigation to the Attorney General, and if it recommended appointment of a special prosecutor, that would deflect suggestions that the process was “political.”

On the other hand, investigative commissions do not actually do justice. They cannot bring charges, and in the process of granting immunity for testimony they can muddy the waters for a later prosecutor. Any commission would need the advice and guidance of professional prosecutors, who could help to assure that it would prudently exercise the right to grant immunity and would avoid damaging future prosecutions.

Criminal investigations and prosecutions might be avoided under the Leahy approach and might be delayed under the Conyers approach. But whatever approach is finally settled upon, it seems increasingly clear that there will be multiple investigations: a commission of some sort, Congressional hearings (which are promised in any event) and internal probes within the government, which will likely be pursued delicately and quietly.

Though the wheels of justice grind slowly, they grind exceeding small. One year from today, it is likely that a large number of the secret documents that form the backbone of Bush detention policy will be public and many of their authors will have been publicly interrogated about them. We will have a better sense of how torture crept into the American interrogations system and whose authority was invoked to ram it through in the face of legal hurdles once thought insurmountable. And one year from today, we will probably still be asking whether any of the authors of this national tragedy will or should be prosecuted. That outcome is not likely to satisfy either side of the debate. But it may well be consistent with the interests of justice, which demands a complete exploration of the facts before anyone is held to account. That outcome fully reflects the Obama style.

Scott Horton, a senior fellow at The Nation Institute, lectures at Columbia Law School.

Pakistan Government ‘Privately’ Backing US Drone Attacks Inside Pakistan

February 19, 2009

Public Condemnations Carry Little Weight as Proof Grows of Complicity in Strikes

Antiwar.com

Posted February 18, 2009

There has been plenty of talk over the past several months that the Pakistani government had come to some sort of secret understanding with the United States about its continued use of Predator drones to launch attacks on Pakistani soil. But with the Pakistani government publicly denying it and the United States refusing to even officially confirm that it had launched most of the strikes, concrete evidence was elusive. That is no longer the case.

The Wall Street Journal cites several unnamed officials on both sides confirming that Pakistan’s military is giving “significant support” to the US attacks. The Times of London has published aerial photos from 2006 of a Pakistani airbase in Balochistan that also shows three Predator drones on the runway: seemly confirming last week’s comments by Senator Dianne Feinstein claiming that the United States had been using a Pakistani base for their drone attacks.

Predator DroneThe stakes are high for the already floundering coalition government of Pakistani President Asif Ali Zardari. If the formal protests and summoning of the US Ambassador is all really, as one Pakistani official put it “for the sake of public opinion,” the Zardari government has been openly lying to its citizenry about one of the most controversial domestic issues it faces. If it is possible for the already skeptical population of Pakistan’s tribal areas to lose more faith in the government, this would certainly be the issue for it.

The United States has been launching a growing number of drone strikes in North and South Waziristan since mid-2008, killing a large number of civilians as well as the militants it has targeted. President Obama made advocating the strikes a centerpiece of his Pakistan policy, and the attacks have continued since he took office last month.

Related Stories

compiled by Jason Ditz [email the author]

The U.S. Imperial Triangle and Military Spending

February 18, 2009

John Bellamy Foster, Hannah Holleman, and Robert W. McChesney | Monthly Review, October 2008

The United States is unique today among major states in the degree of its reliance on military spending, and its determination to stand astride the world, militarily as well as economically. No other country in the post–Second World War world has been so globally destructive or inflicted so many war fatalities. Since 2001, acknowledged U.S. national defense spending has increased by almost 60 percent in real dollar terms to a level in 2007 of $553 billion. This is higher than at any point since the Second World War (though lower than previous decades as a percentage of GDP). Based on such official figures, the United States is reported by the Stockholm International Peace Research Institute (SIPRI) as accounting for 45 percent of world military expenditures. Yet, so gargantuan and labyrinthine are U.S. military expenditures that the above grossly understates their true magnitude, which, as we shall see below, reached $1 trillion in 2007.1

Externally, these are necessary expenditures of world empire. Internally, they represent, as Michal Kalecki was the first to suggest, an imperial triangle of state-financed military production, media propaganda, and real/imagined economic-employment effects that has become a deeply entrenched, and self-perpetuating feature of the U.S. social order.2

Many analysts today view the present growth of U.S. militarism and imperialism as largely divorced from the earlier Cold War history of the United States, which was commonly seen as a response to the threat represented by the Soviet Union. Placed against this backdrop the current turn to war and war preparation appears to numerous commentators to lack a distinct target, despite concerns about global terrorism, and to be mainly the product of irrational hubris on the part of U.S. leaders. Even as insightful a left historian as Eric Hobsbawm has recently adopted this general perspective. Thus in his 2008 book On Empire Hobsbawm writes:

Frankly, I can’t make sense of what has happened in the United States since 9/11 that enabled a group of political crazies to realize long-held plans for an unaccompanied solo performance of world supremacy….Today a radical right-wing regime seeks to mobilize “true Americans” against some evil outside force and against a world that does not recognize the uniqueness, the superiority, the manifest destiny of America…. In effect, the most obvious danger of war today arises from the global ambitions of an uncontrollable and apparently irrational government in Washington….To give America the best chance of learning to return from megalomania to rational foreign policy is the most immediate and urgent task of international politics.3

Such a view, which sees the United States as under the influence of a new irrationalism introduced by George W. Bush and a cabal of neoconservative “political crazies,” and consequently calls for a return from “megalomania to rational foreign policy,” downplays the larger historical and structural forces at work that connect the Cold War and post–Cold War imperial eras. In contrast, a more realistic perspective, we believe, can be obtained by looking at the origins of the U.S. “military ascendancy” (as C. Wright Mills termed it) in the early Cold War years and the centrality this has assumed in the constitution of the U.S. empire and economy up to the present.4

The Permanent War Economy and Military Keynesianism

In January 1944 Charles E. Wilson, president of General Electric and executive vice chairman of the War Production Board, delivered a speech to the Army Ordnance Association advocating a permanent war economy. According to the plan Wilson proposed on that occasion, every major corporation should have a “liaison” representative with the military, who would be given a commission as a colonel in the Reserve. This would form the basis of a program, to be initiated by the president as commander in chief in cooperation with the War and Navy departments, designed to bind corporations and military together into a single unified armed forces-industrial complex. “What is more natural and logical,” he asked, “than that we should henceforth mount our national policy upon the solid fact of an industrial capacity for war, and a research capacity for warthat is already ‘in being’? It seems to me anything less is foolhardy.” Wilson went on to indicate that in this plan the part to be played by Congress was restricted to voting for the needed funds. Further, it was essential that industry be allowed to play its central role in this new warfare state without being hindered politically “or thrown to the fanatical isolationist fringe [and] tagged with a ‘merchants-of-death’ label.”

In calling, even before the Second World War had come to a close, for a “continuing program of industrial preparedness,” for war, Charles E. Wilson (sometimes referred to as “General Electric Wilson” to distinguish him from “General Motors Wilson”—Charles Erwin Wilson, president of General Motors and Eisenhower’s secretary of defense) was articulating a view that was to characterize the U.S. oligarchy as a whole during the years immediately following the Second World War. In earlier eras it had been assumed that there was an economic “guns and butter” trade-off, and that military spending had to occur at the expense of other sectors of the economy. However, one of the lessons of the economic expansion in Nazi Germany, followed by the experience of the United States itself in arming for the Second World War, was that big increases in military spending could act as huge stimulants to the economy. In just six years under the influence of the Second World War the U.S. economy expanded by 70 percent, finally recovering from the Great Depression. The early Cold War era thus saw the emergence of what later came to be known as “military Keynesianism”: the view that by promoting effective demand and supporting monopoly profits military spending could help place a floor under U.S. capitalism.5

John Maynard Keynes, in his landmark General Theory of Employment, Interest and Money, published in 1936, in the midst of the Depression, argued that the answer to economic stagnation was to promote effective demand through government spending. The bastardized Keynesianism that came to be known as “military Keynesianism” was the view that this was best effected with the least negative consequences for big business by focusing on military spending. As Joan Robinson, one of Keynes’s younger colleagues, critically explained in her iconoclastic lecture, “The Second Crisis of Economic Theory,” before the American Economic Association on December 27, 1971:

The most convenient thing for a government to spend on is armaments. The military-industrial complex [thus] took charge. I do not think it plausible to suppose that the cold war and several hot wars were invented just to solve the employment problem. But certainly they have had that effect. The system had the support not only of the corporations who make profits under it and the workers who got jobs, but also of the economists who advocated government loan-expenditure as a prophylactic against stagnation. Whatever were the deeper forces leading to the hypertrophy of military power after the world war was over, certainly they could not have had such free play if the doctrine of sound finance had still been respected. It was the so-called Keynesians who persuaded successive Presidents that there is no harm in a budget deficit and left the military-industrial complex to take advantage of it. So it has come about that Keynes’ pleasant daydream was turned into a nightmare of terror.6

The first to theorize this tendency toward military Keynesianism under monopoly capitalism, was the Polish economist Michal Kalecki (most famous, as Robinson pointed out in the above-mentioned lecture, for having discovered the essentials of Keynes’s General Theory before Keynes himself). In a 1943 essay on “The Political Aspects of Full Employment” and in subsequent essays, Kalecki argued that monopoly capital had a deep aversion to increased civilian government spending due to its intrusion on the commodity market and the sphere of private profit, but that this did not apply in the same way to military spending, which was seen by the vested interests as adding to rather than crowding out profits. If absorption of the massive economic surplus of large corporate capital through increased government spending was the key to accumulation in post–Second World War U.S. capitalism, this was dependent principally on military expenditures, or what Kalecki in 1956 labeled “the armament-imperialist complex.” This resulted in a “high degree of utilization” of productive capacity and “counteracted the disrupting influence of the increase in the relative share of accumulation of big business in the national product.”7

For Kalecki this new military-supported regime of accumulation that came to characterize U.S. monopoly capital by the mid-1950s established a strong political-economic foundation for its own rule “based on the following [imperial] triangle”:

  1. Imperialism contributes to a relatively high level of employment through expenditures on armaments and ancillary purposes and through the maintenance of a large body of armed forces and government employees.
  2. The mass communications media, working under the auspices of the ruling class, emits propaganda aimed at securing the support of the population for this armament-imperialist set-up.
  3. The high level of employment and the standard of living increased considerably as compared with before the war (as a result of the rise in the productivity of labor), and this facilitated the absorption of this propaganda to the broad masses of the population.

Mass communication occupied a central place in this imperial triangle. An essential part of Kalecki’s argument was that “the mass communication media, such as the daily press, radio, and television in the United States are largely under the control of the ruling class.” As none other than Charles E. (General Electric) Wilson, then defense mobilization director, put it in a speech to the American Newspaper Publishers Association on April 26, 1951, the job of the media was to bring “public opinion, as marshaled by the press” to the support of the permanent war effort (italics added).8

The result by the mid-1950s was a fairly stable militarized economy, in which intertwined imperial, political-economic, and communication factors all served to reinforce the new military-imperial order. Kalecki observed that U.S. trade unions were “part and parcel of the armament-imperialist set-up. Workers in the United States are not duller and trade union leaders are not more reactionary ‘by nature’ than in other capitalist countries. Rather, the political situation in the United States, is simply, in accordance with the precepts of historical materialism, the unavoidable consequence of economic developments and of characteristics of the superstructure of monopoly capitalism in its advanced stage.” All of this pointed to what Harry Magdoff was to call the essential “one-ness of national security and business interests” that came to characterize the U.S. political economy and empire.9

Many of Kalecki’s ideas were developed further by Paul Baran and Paul Sweezy in 1966 in Monopoly Capital. Baran and Sweezy argued there were at least five political-economic-imperial ends propelling the U.S. oligarchy in the 1950s and ’60s toward the creation of a massive military establishment: (1) defending U.S. global hegemony and the empire of capital against external threats in the form of a wave of revolutions erupting throughout the world, simplistically viewed in terms of a monolithic Communist threat centered in the Soviet Union; (2) creating an internationally “secure” platform for U.S. corporations to expand and monopolize economic opportunities abroad; (3) forming a government-sponsored research and development sector that would be dominated by big business; (4) generating a more complacent population at home, made less recalcitrant under the nationalistic influence of perpetual war and war preparation; and (5) soaking up the nation’s vast surplus productive capacity, thus helping to stave off economic stagnation, through the promotion of high-profit, low-risk (to business) military spending. The combined result of such political-economic-imperial factors was the creation of the largest, most deeply-entrenched and persistent, “peacetime” war machine that the world had ever seen.10

Like Kalecki, Baran and Sweezy argued that the U.S. oligarchy kept a “tight rein on civilian [government] spending,” which, they suggested, “had about reached its outer limits” as a percentage of national income “by 1939,” but was nonetheless “open-handed with the military.” Government-pump priming operations therefore occurred largely through spending on wars and war preparations in the service of empire. The Pentagon naturally made sure that bases and armaments industries were spread around the United States and that numerous corporations profited from military spending, thus maximizing congressional support due to the effects on states and districts.11

For members of the U.S. oligarchy and their hangers-on, the virtuous circle of mutually reinforcing military spending and economic growth represented by military Keynesianism was something to be celebrated rather than held up to criticism. Harvard economist Sumner Slichter explained to a banker’s convention in October 1949, that as long as Cold War spending persisted a severe economic depression was “difficult to conceive.” The Cold War “increases the demand for goods, helps sustain a high level of employment, accelerates technological progress and thus helps the country to raise its standard of living….So we may thank the Russians for helping make capitalism in the United States work better than ever.”

Similarly, U.S. News and World Report told its readers on May 14, 1950 (a month before the outbreak of the Korean War):

Government planners figure they have found the magic formula for almost endless good times. They are now beginning to wonder if there may not be something to perpetual motion after all. Cold war is the catalyst. Cold war is an automatic pump primer. Turn a spigot, and the public clamors for more arms spending. Turn another, the clamor ceases. Truman confidence, cockiness, is based on this “Truman formula.” Truman era of good times, President is told, can run much beyond 1952. Cold war demands, if fully exploited, are almost limitless.

In the same vein, U.S. News and World Report was to declare in 1954: “What H-bomb means to business. A long period…of big orders. In the years ahead, the effects of the new bomb will keep on increasing. As one appraiser puts it: ‘The H-bomb has blown depression-thinking out the window.’” In 1959 David Lawrence, editor of U.S. News and World Report, indicated that he viewed with equanimity the suggestion that the United States “might conceivably strike first in what has become known as ‘preemptive’ rather than ‘preventive’ war.”

Henry Luce, the media mogul at the head of the Time-Life empire, who coined the term “the American Century,” observed in November 1957 in Fortune that the United States “can stand the load of any defense effort required to hold the power of Soviet Russia in check. It cannot, however, indefinitely stand the erosion of creeping socialism and the ceaseless extension of government activities into additional economic fields” beyond the military. This was directly in line with Kalecki’s and Baran and Sweezy’s contention that the system was tight-fisted where civilian spending was concerned and open-handed with the military.

Remarking on the success of military Keynesianism in promoting economic prosperity, the influential Harvard economist Seymour Harris wrote in the The New York Times Magazine in 1959: “If we treat the years from 1941 to the present as a whole, we find again that a period of record prosperity coincided with a period of heavy military outlay….About one dollar out of seven went for war and preparation for war, and this expenditure was undoubtedly a stimulus to the economy.”12

A military Keynesian view was close to the heart of the major U.S. planning document of the Cold War, NSC-68, issued in April 1950 shortly before the Korean War by the U.S. National Security Council  and signed by President Truman in September 1950, but not declassified until 1975. Drafted by Paul Nitze, then head of the policy review group in the state department, the main intent of NSC-68 was to construct a rollback strategy against the Soviet Union. It called for a vast increase in military spending above its already high levels, and considered the possibility that “in an emergency the United States could devote upward of 50 percent of its gross national product” to the military effort as in the Second World War. “From the point of view of the economy as a whole,” NSC-68 declared,

the program [of military expansion] might not result in a real decrease in the standard of living, for the economic effects of the program might be to increase the gross national product by more than the amount being absorbed for additional military and foreign assistance purposes. One of the most significant lessons of our World War II experience was that the American economy, when it operates at a level approaching full efficiency [full capacity], can provide enormous resources for purposes other than civilian consumption while simultaneously providing a high standard of living. After allowing for price changes, personal consumption expenditures rose by almost one-fifth between 1939 and 1944, even though the economy had in the meantime increased the amount of resources going into Government use by $60[–]$65 billion (in 1939 prices).13

U.S. militarism was therefore motivated first and foremost by a global geopolitical struggle, but was at the same time seen as essentially costless (even beneficial) to the U.S. economy, which could have more guns and more butter too. It was thus viewed as a win-win solution for the U.S. empire and economy.

By the time that President Eisenhower (who played a role in this military expansion) raised concerns about what he dubbed the “military-industrial complex” in his farewell address of January 17, 1961, it was already so firmly established as to constitute the permanent war economy envisioned by Charles E. (General Electric) Wilson. As Eisenhower’s secretary of defense, Charles Erwin (General Motors) Wilson (best known for having created a major flap by saying that “what is good for General Motors is good for the country”), observed in 1957, the military set-up was then so built into the economy as to make it virtually irreversible: “so many Americans are getting a vested interest in it: Properties, business, jobs, employment, votes, opportunities for promotion and advancement, bigger salaries for scientists and all that….If you try to change suddenly you get into trouble….If you shut the whole business off now, you will have the state of California in trouble because such a big percentage of the aircraft industry is in California.”14

Hence, the concern that Eisenhower voiced in his farewell address about a “permanent armaments industry of vast proportions” and the fact that “we annually spend on military security alone more than the net income of all United States corporations”15 was a belated recognition of what had already become an established fact. The need for the gargantuan military-industrial complex that the United States developed in these years was not so much for purposes of economic expansion directly (though military Keynesianism pointed to its stimulating effects) but due to the reality, as Baran and Sweezy emphasized, that the capitalist world order and U.S. hegemony could only be maintained “a while longer,” in the face of rising insurgencies throughout the world, through “increasingly direct and massive intervention by American armed forces.”16 This entire built-in military system could not be relinquished without relinquishing empire. Indeed, the chief importance of U.S. military power from the early Cold War years to today has been that it is used—either directly, resulting in millions of deaths (counting those who died in the Korean War, the Vietnam War, the Gulf War, the Kosovo War, the Afghanistan and Iraq Wars, as well as dozens of lesser conflicts), or indirectly, as a means to intimidate.17

The most important left analysts of these developments in the 1950s and ’60s, Kalecki, Baran, Sweezy, and Magdoff, insisted—going against the dominant U.S. Cold War ideology—that the cause of U.S. military spending was capitalist empire, rather than the need to contain the Soviet threat. The benefits of military spending to monopoly capital, moreover, guaranteed its continuation, barring a major social upheaval. The decade and a half since the fall of the Soviet Union has confirmed the accuracy of this assessment. The euphoria of the “peace dividend” following the end of the Cold War evaporated almost immediately in the face of new imperial requirements. This was a moment of truth for U.S. capitalism, demonstrating how deeply entrenched were its military-imperial interests. By the end of the 1990s U.S. military spending, which had been falling, was on its way up again.

Today, in what has been called a “unipolar world,” U.S. military spending for purposes of empire is rapidly expanding—to the point that it rivals that of the entire rest of the world put together. When it is recognized that most of the other top ten military-spending nations are U.S. allies or junior partners, it makes the U.S. military ascendancy even more imposing. Only the reality of global empire (and the effects of this on the internal body politic) can explain such an overwhelming destructive power. As Atlantic Monthly correspondent Robert Kaplan proudly proclaimed in 2005: “By the turn of the twenty-first century the United States military had already appropriated the entire earth, and was ready to flood the most obscure areas of it with troops at a moment’s notice.”18

Continued >>

Israel launches covert war against Iran

February 18, 2009

Israel has launched a covert war against Iran as an alternative to direct military strikes against Tehran’s nuclear programme, US intelligence sources have revealed.

By Philip Sherwell in New York  | Telegraph.co.uk
Tzipi Livni: Israel launches covert war against Iran

Israel foreign minister Tzipi Livni Photo: EPA

It is using hitmen, sabotage, front companies and double agents to disrupt the regime’s illicit weapons project, the experts say.

The most dramatic element of the “decapitation” programme is the planned assassination of top figures involved in Iran’s atomic operations.

Despite fears in Israel and the US that Iran is approaching the point of no return in its ability to build atom bomb, Israeli officials are aware of the change in mood in Washington since President Barack Obama took office.

They privately acknowledge the new US administration is unlikely to sanction an air attack on Iran’s nuclear installations and Mr Obama’s offer to extend a hand of peace to Tehran puts any direct military action beyond reach for now.

The aim is to slow down or interrupt Iran’s research programme, without the gamble of a direct confrontation that could lead to a wider war.

A former CIA officer on Iran told The Daily Telegraph: “Disruption is designed to slow progress on the programme, done in such a way that they don’t realise what’s happening. You are never going to stop it.

“The goal is delay, delay, delay until you can come up with some other solution or approach. We certainly don’t want the current Iranian government to have those weapons. It’s a good policy, short of taking them out militarily, which probably carries unacceptable risks.”

Reva Bhalla, a senior analyst with Stratfor, the US private intelligence company with strong government security connections, said the strategy was to take out key people.

“With co-operation from the United States, Israeli covert operations have focused both on eliminating key human assets involved in the nuclear programme and in sabotaging the Iranian nuclear supply chain,” she said.

“As US-Israeli relations are bound to come under strain over the Obama administration’s outreach to Iran, and as the political atmosphere grows in complexity, an intensification of Israeli covert activity against Iran is likely to result.”

Mossad was rumoured to be behind the death of Ardeshire Hassanpour, a top nuclear scientist at Iran’s Isfahan uranium plant, who died in mysterious circumstances from reported “gas poisoning” in 2007.

Other recent deaths of important figures in the procurement and enrichment process in Iran and Europe have been the result of Israeli “hits”, intended to deprive Tehran of key technical skills at the head of the programme, according to Western intelligence analysts.

“Israel has shown no hesitation in assassinating weapons scientists for hostile regimes in the past,” said a European intelligence official, speaking on condition of anonymity. They did it with Iraq and they will do it with Iran when they can.”

Mossad’s covert operations cover a range of activities. The former CIA operative revealed how Israeli and US intelligence co-operated with European companies working in Iran to obtain photographs and other confidential material about Iranian nuclear and missile sites.

“It was a real company that operated from time to time in Iran and in the nature of their legitimate business came across information on various suspect Iranian facilities,” he said.

Israel has also used front companies to infiltrate the Iranian purchasing network that the clerical regime uses to circumvent United Nations sanctions and obtain so-called “dual use” items – metals, valves, electronics, machinery – for its nuclear programme.

The businesses initially supply Iran with legitimate material, winning Tehran’s trust, and then start to deliver faulty or defective items that “poison” the country’s atomic activities.

“Without military strikes, there is still considerable scope for disrupting and damaging the Iranian programme and this has been done with some success,” said Yossi Melman, a prominent Israeli journalist who covers security and intelligence issues for the Haaretz newspaper.

Mossad and Western intelligence operations have also infiltrated the Iranian nuclear programme and “bought” information from prominent atomic scientists. Israel has later selectively leaked some details to its allies, the media and United Nations atomic agency inspectors.

On one occasion, Iran itself is understood to have destroyed a nuclear facility near Tehran, bulldozing over the remains and replacing it with a football pitch, after its existence was revealed to UN inspectors. The regime feared that the discovery by inspectors of an undeclared nuclear facility would result in overwhelming pressure at the UN for tougher action against Iran.

The Iranian government has become so concerned about penetration of its programme that it has announced arrests of alleged spies in an attempt to discourage double agents. “Israel is part of a detailed and elaborate international effort to slow down the Iranian programme,” said Mr Melman.

But Vince Canastraro, the former CIA counter-terrorism chief, expressed doubts about the efficacy of secret Israeli operations against Iran. “You cannot carry out foreign policy objectives via covert operations,” he said. “You can’t get rid of a couple of people and hope to affect Iran’s nuclear capability.”

Iran has consistently asserted that it is pursuing a nuclear capability for civilian energy generation purposes. But Israeli and Western intelligence agencies believe the 20-year-old programme, which was a secret until 2002, is designed to give the ruling mullahs an atom bomb.

Obama Administration Defending Bush Secrets

February 18, 2009

Justice Department seeks to hold back lawsuits as FOIA rules rewritten

WASHINGTON – Despite President Barack Obama’s vow to open government more than ever, the Justice Department is defending Bush administration decisions to keep secret many documents about domestic wiretapping, data collection on travelers and U.S. citizens, and interrogation of suspected terrorists.

[U.S. President Barack Obama takes part in a town hall meeting Concord Community High School in Elkhart, Indiana, February 9, 2009.  "This is not change," said ACLU executive director Anthony Romero. "President Obama's Justice Department has disappointingly reneged" on his promise to end "abuse of state secrets."(Reuters/Jim Young)]U.S. President Barack Obama takes part in a town hall meeting Concord Community High School in Elkhart, Indiana, February 9, 2009. “This is not change,” said ACLU executive director Anthony Romero. “President Obama’s Justice Department has disappointingly reneged” on his promise to end “abuse of state secrets.”(Reuters/Jim Young)

In half a dozen lawsuits, Justice lawyers have opposed formal motions or spurned out-of-court offers to delay court action until the new administration rewrites Freedom of Information Act guidelines and decides whether the new rules might allow the public to see more.In only one case has the Justice Department agreed to suspend a FOIA lawsuit until the disputed documents can be re-evaluated under the yet-to-be-written guidelines. That case involves negotiations on an anti-counterfeiting treaty, not the more controversial, secret anti-terrorism tactics that spawned the other lawsuits as well as Obama’s promises of greater openness.

“The signs in the last few days are not entirely encouraging,” said Jameel Jaffer, an attorney for the American Civil Liberties Union, which filed several lawsuits seeking the Bush administration’s legal rationales for warrantless domestic wiretapping and for its treatment of terrorism detainees.

The documents sought in these lawsuits “are in many cases the documents that the public most needs to see,” Jaffer said. “It makes no sense to say that these documents are somehow exempt from President Obama’s directives.”

Groups that advocate open government, civil liberties and privacy were overjoyed that Obama on his first day in office reversed the FOIA policy imposed by Bush’s first attorney general, John Ashcroft. The Bush Justice Department said it would use any legitimate legal basis to defend withholding records from the public. Obama pledged “an unprecedented level of openness in government” and ordered new FOIA guidelines written with a “presumption in favor of disclosure.”

But Justice’s actions in courts since then have cast doubt on how far the new administration will go.

Justice: FBI did enough
In a FOIA case seeking access to the rules governing the FBI’s Investigative Data Warehouse – a computer database containing searchable documents about Americans and foreigners – Justice lawyers told a district court here Thursday, “It is not clear that the new guidelines, once issued, will be retrospective to FOIA requests that the agency already has finished processing.”

They asked the court to rule instead that the FBI has done enough. The bureau has reviewed 878 pages, withheld 76 and released some portions of 802.

To withhold some material, the FBI cited discretionary FOIA exemptions and ones that require balancing privacy and public interests. David Sobel, attorney for the Electronic Frontier Foundation, a San Francisco-based group that advocates civil liberties in cyberspace and brought the lawsuit, said those decisions might come out differently under the new guidelines.

The issue isn’t retroactivity, Sobel said. “The issue is whether the new administration is going to devote legal resources to fighting old battles now that the president has announced a fundamental change in the government’s approach to FOIA.”

Other lawsuits in which Justice’s civil division has expressed opposition to delays until the administration writes its FOIA guidelines and uses them to review Bush decisions:

  • One seeking documents about the Automated Targeting System used by Customs officers to screen all travelers leaving or entering the country.
  • A case seeking records of lobbying by telecommunications companies to get legal immunity for cooperating in warrantless domestic wiretapping.
  • A case seeking Justice’s legal opinions justifying that wiretapping. One of the plaintiff attorneys, Meredith Fuchs, of the National Security Archive, a private group that publishes formerly classified government documents, said, “I’m somewhat surprised they did not take the opportunity to look at these again, but maybe it’s because the administration doesn’t have all its top Justice appointees in office yet.”
  • Three cases seeking Justice legal opinions about detention and interrogation of terrorism detainees. Civil division attorney Caroline Wolverton wrote the ACLU’s Jaffer that Justice would proceed “consistent with the principles” in Obama’s FOIA order “and also with due regard for the legitimate confidentiality interests of the executive branch and the national security interests of the United States.”

Jaffer called that “a nonresponse response.”

Two cases may be reviewed
So far, Justice has expressed willingness to review Bush decisions in two cases, only one because of FOIA changes.

Only in Sobel’s lawsuit for anti-counterfeiting treaty documents has Justice joined a plaintiff to obtain a court delay to give the administration time to write FOIA guidelines and use them to “review its determinations on the documents at issue.”

But that case is unusual because Justice is represented by its Office of Information and Privacy, not by the civil division that handles all the other FOIA lawsuits. The information and privacy office provides governmentwide guidance on how to obey the FOIA. Attorneys in these cases worry that the information and privacy office doesn’t have the clout of the much larger civil division and may not control administration policy.

The civil division has sought a delay to review one case – involving three 2005 Justice legal memos on the definition of “cruel and unusual” interrogation tactics. But its request didn’t mention the new FOIA policy. Instead it said Obama’s Jan. 22 executive order on detention and interrogation might alter the government position.

Even if the new administration reviews Bush decisions, that’s no guarantee the outcome will change.

Last week, Attorney General Eric Holder announced a review of every court case in which the Bush administration used a different legal tool to preserve secrecy: the state secrets privilege it invoked a record number of times to have lawsuits thrown out. On the same day, however, civil division attorney Douglas Letter cited the state secrets privilege in asking a federal appeals court to uphold dismissal of a lawsuit accusing a Boeing Co. subsidiary of illegally helping the CIA fly suspected terrorists to allied foreign nations where they would be tortured.

Three times Letter assured the judges his position had been approved by Obama administration officials.

“This is not change,” said ACLU executive director Anthony Romero. “President Obama’s Justice Department has disappointingly reneged” on his promise to end “abuse of state secrets.”

Torture Report Erodes War Criminal President Bush’s Defense

February 16, 2009

Jason Leopold | Consortiumnews.com, Feb 15, 2009

A key line in George W. Bush’s defense against war crimes charges has weakened with the disclosure that an internal Justice Department watchdog has concluded that the legal advice, which cleared the way for Bush’s policies on torture and other abuse of detainees, was tainted by political influence.

An investigation by H. Marshall Jarrett, head of the Justice Department’s Office of Professional Responsibility, reached “damning” conclusions about numerous cases of “misconduct” in the advice from John Yoo and other lawyers in the Office of Legal Counsel during the Bush administration, according to legal sources familiar with the report’s contents.

OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.

One part of the OPR report criticized Yoo’s use of an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under U.S. law, the sources said.

The report also criticizes Yoo’s legal theories that the President of the United States had the right to suspend Fourth Amendment protections against unreasonable searches and seizures, the sources said. It is believed that Yoo’s legal theories led to a warrantless wiretap program after 9/11.

The OPR report was completed late last year but was kept under wraps by Attorney General Michael Mukasey while Bush finished out his days in office, the sources said.

Bush’s Defense

The OPR’s findings could influence whether Bush and other senior officials are held to account for torture and other war crimes. Bush has pinned his defense on the fact that he had received advice from Yoo and other Justice Department lawyers that the brutal interrogations of “war on terror” detainees did not constitute torture or violate other laws of war.

Bush’s line of defense could collapse if it were determined that the lawyers were colluding with administration officials in setting policy, rather than providing objective legal analysis. Already, extensive evidence exists, including Yoo’s own writings, showing that he participated in high-level administration meetings to discuss and set policy.

For instance, in his 2006 book War by Other Means, Yoo describes his involvement in frequent White House meetings regarding what “other means” should receive a legal stamp of approval. Yoo, who was a deputy assistant attorney general assigned to the powerful Office of Legal Counsel at the Justice Department, wrote:

“As the White House held its procession of Christmas parties and receptions in December 2001, senior lawyers from the Attorney General’s office, the White House counsel’s office, the Departments of State and Defense and the NSC [National Security Council] met a few floors away to discuss the work on our opinion. …

“This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism. We certainly did not all agree, nor did we always get along, but we all believed that we were doing what was best for the nation and its citizens.

“Meetings were usually chaired by Alberto Gonzales,” who was then White House counsel and later became Bush’s second Attorney General. Yoo identified other key players as Timothy Flanigan, Gonzales’s deputy; William Howard Taft IV from State; John Bellinger from the NSC; William “Jim” Haynes from the Pentagon; and David Addington, counsel to Vice President Dick Cheney.

What Yoo’s book and other evidence make clear is that the lawyers from the Justice Department’s OLC weren’t just legal scholars handing down opinions from an ivory tower; they were participants in how to make Bush’s desired actions “legal” even if the arguments were professionally flawed.

For instance, the Aug. 1, 2002, OLC opinion known as the “torture memo,” which opened the door to abusive tactics such as waterboarding, which subjects a detainee to the sensation that he is drowning, was rescinded soon after Jack Goldsmith became head of the OLC in fall 2003.

Goldsmith later described the opinion as “legally flawed” and “sloppily written.” The OPR report concurs in Goldsmith’s judgment, the sources said.

Congressional Interest

Asked to comment about the OPR report and the disclosure that Mukasey blocked its delivery to Congress, staffers for Democratic Sens. Dick Durbin and Sheldon Whitehouse said they were working on a letter to Jarrett to inquire about the circumstances that resulted in the report being kept under wraps.

A year ago, Whitehouse and Durbin discovered the existence of the internal probe after writing a letter to the Justice Department’s watchdog agencies requesting an investigation into the role “Justice Department officials [played] in authorizing and/or overseeing the use of waterboarding by the Central Intelligence Agency… and whether those who authorized it violated the law.”

The questions posed by the senators included whether the legal advice met professional standards and whether the lawyers were “insulated from outside pressure to reach a particular conclusion?” Whitehouse and Durbin also asked what role was played by Bush’s White House and the CIA in possibly influencing “deliberations about the lawfulness of waterboarding?”

Jarrett responded by saying the senators’ concerns were already part of a pending investigation that OPR was conducting into the genesis of the Aug. 1, 2002, legal opinion.

Because Yoo no longer works for the Justice Department, OPR can only recommend state bar associations conduct a review of his work to determine if he breached ethics and should be punished. The punishment could include disbarment.

The report also recommends state bar associations review the work of Jay Bybee, who was Yoo’s boss at the OLC, the sources said. Bybee signed the so-called torture memo and other controversial legal opinions that Yoo helped to draft.

Troubling Narrative

OPR investigators poured over thousands of pages of internal Justice Department e-mails and White House memos over the past four years and built a disturbing narrative about Yoo’s work, the sources said, adding that OPR investigators also examined Yoo’s book for further evidence that he had fixed the law around the administration’s policy interests.

In War by Other Means, Yoo wrote: “The only way to prevent future September 11s will be by acquiring intelligence. The main way of doing that is by interrogating captured al-Qaeda leaders or breaking into their communications…. In an opinion eventually issued on Jan. 22, 2002, OLC concluded that al-Qaeda could not claim the benefits of the Geneva Conventions.”

In the context of explaining why detainees were not entitled to the benefits of the Geneva Convention or prisoner of war status, Yoo wrote:

“When our group of lawyers visited Gitmo, the Marine general in charge told us that several of the detainees had arrived screaming that they wanted to kill guards and other Americans. …

“Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al-Qaeda detainees want to kill not only guards, but their peers who might be cooperating with the United States. The provision of ordinary POW rights…is infeasible.”

Yoo’s argument that only quiet POWs “in a state of calm surrender” should qualify for Geneva protections might be news to many former U.S. POWs, including Sen. John McCain, who have boasted about their various forms of resistance to their captors.

Yoo added that a few weeks after he returned from Guantanamo “the lawyers met again in the White House Situation Room to finally resolve the issue for presidential decision.”

“If Geneva Convention rules were applied, some believed they would interfere with our ability to apprehend or interrogate al-Qaeda leaders,” Yoo wrote. “We would be able to ask Osama bin Laden loud questions and nothing more. Geneva rules were designed for mass armies, not conspirators, terrorists or spies.”

Long Battle

The OPR probe was launched in mid-2004 after a meeting in which Jack Goldsmith, then head of the OLC, got into a tense debate with then-White House counsel  Alberto Gonzales about the torture memo. Following the meeting, Goldsmith, who had rescinded the memo, resigned.

According to people familiar with the OPR report, Yoo was briefed on the report in January.  Yoo is said to have informed officials at the University of California at Berkeley, where he is a tenured law professor, according to two senior law school officials.

Yoo is now a visiting law professor at Chapman University School of Law in Orange, California, where he teaches foreign relations law. I approached him on campus recently and asked him about the report’s findings but he refused to comment. Chapman University officials also declined to comment.

In a letter to faculty and students last December, Law School Dean John Eastman said “Chapman University officials have received several notes of concern about my decision to offer Professor John Yoo a distinguished visitorship at the Chapman University School of Law.”

“I would encourage those who object to Professor Yoo’s appointment here to read his scholarly work on the subject of Executive power, and in particular the memos he authored while serving in the administration,” Dean Eastman wrote Dec. 18, 2008. “You will find that Yoo’s position, while disputed, is far from ignorant or disrespectful of the Constitution.”

Dawn Johnsen, who has been tapped by President Barack Obama to head the Office of Legal Counsel, has publicly criticized the work of Yoo and other OLC officials under Bush. In a 2006 Indiana Law Journal article, she said the function of OLC should be to “provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”

“The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action,” said Johnsen, who served in the OLC under President Bill Clinton.

In a 2007 UCLA Law Review article, Johnsen said Yoo’s Aug. 1, 2002, torture memo is “unmistakably” an “advocacy piece.”

“OLC abandoned fundamental practices of principled and balanced legal interpretation,” Johnsen wrote. “The Torture Opinion relentlessly seeks to circumvent all legal limits on the CIA’s ability to engage in torture, and it simply ignores arguments to the contrary.

“The Opinion fails, for example, to cite highly relevant precedent, regulations, and even constitutional provisions, and it misuses sources upon which it does rely. Yoo remains almost alone in continuing to assert that the Torture Opinion was ‘entirely accurate’ and not outcome driven.”

[For another story about the OPR report, see Newsweek’s “A Torture Report Could Spell Big Trouble for Bush Lawyers.”]