Saturday, May 29, 2010

The slow death of law, part 2

      This post continues the previous one here.  It focuses on three articles.  The first, a post by Scott Horton, on “the Khadr Boomerang” makes intelligent legal points about this case – argued over even within the administration – and the American use of drones to murder civilians.  Khadr is accused of violating international law in killing a soldier.  As Horton points out, if he threw the grenade that killed Sergeant Schiff, he can be charged with murder. But the charge has to proceed under domestic law where the crime occurred.  The boomerang which worries lawyers in the government, is that “civilian” contractors often fire off the drone missiles (even the CIA has been “privatized,” Erik Prince, head of Blackwater/Xe can do what he wants, see here so long as he “keeps the secrets"). The privatization of the military/intelligence complex has also undermined  any probity in the CIA – there are CIA people like Ray McGovern, former Presidential daily briefer for 27 years, and now leader of Veteran Intelligence Professionals for Sanity who incarnates this, see here – which has been eaten from within by this parasite.  Neither CIA nor Xe men in Langley are “soldiers” in the act of war.  

      The launchers of these missiles will never  be tried in the United States (for the government practices “untruth, injustice and the Nazi way” as Saturday Night Live once satirized Superman – uebermensch – using his x-ray eyes to see that Jimmy Holstein was not circumcised, and flying him to Auschwitz on the way to “defeat” the Russians at the Battle of Stalingrad…).  But by the alleged principles the US is using in the Khadr case, they could be tried internationally. Khadr was 15 years old when the US troops captured and tortured him. That the US did not treat him as a minor (a not fully mature adult and thus not fully responsible for his actions) is a major indictment of American policy, even if one sets aside torture and indefinite detention.   Naturally, Secretary of Defense Robert Gates has chosen to be secretive about all this.  Law is a public matter and when one tortures and throws away children, one probably needs to do it in the dark…

      Horton’s column is brilliant legally, but insufficient on political context.  The US and Nato invaded Afghanistan, using proxy troops who were both partisan and criminal (General Dostum, whom Obama has supposedly allowed to be investigated, murdered some 4,000 prisoners, just to get the US invasion off to a flying start).  This 15 year old was fighting an invading army.  Horton might have said: perhaps the British should have tortured say, some 15 year old relative of George Washington.  All movements against invaders have less political strength (and ordinarily murderousness*) than aggressors.

      In contrast, the “civilian” contractors are mass murderers at a distance, using drones to take out innocents (82% on their account).  They do seem like major league criminals and with almost no justification.  3,000  innocents were murdered September 11th.  But that Pakistanis randomly taking food to or doing tasks near suspected Taliban or 100 Yemenis at a wedding party or many others should be murdered by drones has nothing to do with the ostensible cause.  Worse yet, the drip drip drip of these murders probably has an even worse affect morally and politically among Arabs toward the United States of America than the taking down of the World Trade Center does toward Arabs among Americans.  Think of anti-Arab racism here, and then putting yourself, in the Rawlsian original position, empathize with the relatives of those killed in Yemen.  Ask yourself about what you might feel about robotic, video screen killers from across the seas, whose face is but a missile…See imagine here.

       The fourth article from the New York Times May 27 by Charlie Savage (following Horton's post the day before; Horton, an influential international lawyer. often breaks stories which surface in the Times, even on its editorial page, shortly thereafter) underlines that Phillip Alston, UN Special Rapporteur, will shortly report against civilian murder by drones.  In this, he concurs with Howard Koh, the State Department lawyer.  If intelligence or Xe operatives fire the missiles, they are guilty of murder.  Their case would be comparable, Koh thinks, to that of Khadr.

     But Koh and Alston are wrong that soldiers firing the missiles would not commit murder.  It may perhaps, as Koh thinks, not be a legal problem. But it is certainly a moral and political problem.  No “soldier” takes a risk firing a drone from thousands of miles away.  Worse yet, at minimum, 82% of those taken out are murdered innocents.  And that would seem, even by the "refined" standards of the State Department, to be illegal.

        Savage, who had reported for the Boston Globe (owned by the Times) has written a good book Takeover: the Return of the Imperial Presidency and the Subversion of American Democracy.  It focuses on Cheney's centrality in advancing executive power at the expense of the other branches of government – Savage thinks this is very problematic.  He even speaks, for example at p. 317, of the restriction on news coverage about the military commissions and on what citizens learn from the press about tyranny and the rule of law.  This latest article, though it does not go far enough in exactly the way his book sometimes criticizes, is okay.

     But the fifth article, also by Savage, from the main right hand column on the front page of the New York Times a week ago Saturday, “An Appeals Panel Denies Detainees US court access,” is far more problematic.  Savage talks about three men, arrested far from the battlefield in Afghanistan, flown there and imprisoned in Bagram.  Note that the Bush/Obama claim – “Afghanistan is a central battlefield in a war” with an indefinite enemy, located anywhere, and unending - neglects the following relevant facts:  a) that America aggressed against, conquered and occupied (with NATO allies) this territory and it is not currently meaningfully independent, b) that to refer to the guerilla war there against the US as inhibiting its capacity to do justice to these men transported to Afghanistan from elsewhere is a farce (about equivalent to the Bush excuse that Guantanamo, seized as a colonial conquest in 1898 on the territory of Cuba, is “foreign territory” (“you know. my pinkie doesn’t belong to me and if I poke your eye out with it, it is not I who did it)”;  c) that the US seizes randomly and holds prisoners in Guantanamo  or Bagram in order to make their imprisonment supposedly “beyond the reach of law” (though the control strings were jerked from Rumsfeld and the “principals” and today Gates  in Washington), and d) the release of some 650 out of 700 prisoners from Guantanamo reveals, unsurprisingly given that US soldiers, foreign invaders, who cannot speak the language and have to rely on local informants, arrest, torture and hold indefinitely many innocents. The American military is like a large, mad bull, trampling random people.   

        Even the last 50 prisoners at Guantanamo are not  to be tried, because they have been tortured and there is no reliable  evidence against them (Obama promises that their cases will be reviewed occasionally; “it is not Devil’s Island” Obama might say.  But it is the nearest thing to it that any formerly law-governed regime has attempted.  As Kim Lane Schepple aptly put it for the Bush period, America is undergoing a transition from a parliamentary regime to a police state.  Obama is now furthering this process.  

       These individuals  are being thrown away because Obama is frightened one of them might engage in a terror attack for which he would be blamed.  By doing this, he probably ensures that some of their friends, relatives or compatriots will have  motivation to engage in such an attack. Rampant terror or tyranny works as long as you can scare people. Cheney was scary (every time he opens his mouth or Liz, it is like some malicious Wizard of Oz, out from behind the curtain: any decent person just shakes her head and wonders at the madness).

        Further, the US just doesn’t have that much reach.  It can’t scare that many people, that long (particularly with its losing occupations and economic collapse).  Obama’s new national security strategy will emphasize negotiation, working with others, and not occupation.  That is a good direction.  But rendition, illegality and torture, not to mention drone missiles, do not remotely walk that path.    

       In fact, being itself the enemy of liberty and law as well as  racist and foolish about who “the enemy” is makes America less secure and more likely to be the object of a terrorist attack; this in turn strengthens the war complex and the violation of the law at home; this in turn leads to expanding wars and increased  financial dependence on China even though America is broke, and creates even more danger for ordinary Americans: this is the frightening cycle of increasing American aggression abroad and tyranny at home.  See my Must Global Politics Constrain Democracy? and The Sorcerer's Apprentice here.  This cycle is very hard to break.   Once again, Obama campaigned to undercut both.  But he is baited constantly from the Right.

      For instance, in Savage’s article, Senator Lindsay Graham, a comparatively “moderate” Authoritarian, expresses this “thought” clearly:

    “Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker in the long-running debate over detentions called the ruling a ‘big win’ and praised the administration for appealing the lower court’s ruling.”

        Obama launched the appeal and receives praise from the decadent Graham – the man who, with Senators McCain and Warner, was responsible for the anti-torture resolution in the Senate, a moment of standing up for decency against Bush - and then turns a blind eye to all the actual torture.  He did not say a word about Bush’s signing statement that the President would do what he wanted with regard to torture in order  to get  McCain – a shadow of a man - elected President.

    ‘’ Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,’ he said. ‘It also would have dealt a severe blow to our war effort.’”

       The words “enemy combatant” are an internationally  despised, Bush administration slogan to perfume American criminality.  Graham’s anti-torture statement appeared to be against this and for the rule of law and decency.  But now, law is out of sight, out of mind: 

     “’There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release.  It simply makes no sense and would be the ultimate act of turning the war into a crime.”

       The words “make no sense” are, psychologically, a projection.  Graham is a lawyer and a military lawyer, but he is also a shadow man (he affects principle; he has none).  The idea that America can throw away law, that it can breach international and domestic law, that it spits on the Constitution and so forth in a never ending “war”  needs – except in the publicity cycle of the war  complex – some justification, but Graham offers loud and empty words…

       Contrary to Obama the campaigner, Obama’s Presidency exacerbates aggressions and enhances illegality (secret, torture sites as the Red Cross has now underlined, at Bagram, indefinite detentions, renditions to Pakistan, and the like). 

     Listen to the war complex speak through  Savage, who knows better than this  as one can hear in his unexplained choice of words so that the ordinary reader will not be alerted to the deep issues involved here.  “Reporting” for the Times forbids any commentary on deep issues concerning the Bill of Rights, the rule of law and what America is at its best, though of course it is also a license to broadcast, as serious, ludicrous falsehoods, for example, that the US can take prisoners picked up randomly in distant places to Afghanistan – the field of American aggression and occupation – and because they are now indefinitely detained/tortured on the “field of battle” claim that it need not bring them before a court.  English is often an obscure – one might say foreign - language in New York Times “reporting.”

      “A federal appeals court ruled Friday that three men who had been detained by the US military for trial had no recourse to the American courts.  The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas without judicial oversight.”

       No mention, here or later, of the principles of law at all.  No mention that “the victory for the Obama administration” was actually “the victory for the Bush-Cheney administration” which Obama and many others, including the author of the article, Charlie Savage, rightly criticized for its illegal and immoral practices.

     “The detainees two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base.”

        Even for a New York Times’ reporter, the facts would seem to be an issue here.  If the US transferred these prisoners from elsewhere, their detention and torture could not be “justified” by a supposed claim of the dangerous field of battle.  Are not ace reporters, on the front page, right-hand column of the Times, supposed to verify pretty accessible facts? If there were counterevidence to their “claims,” surely Savage would cite it; later on in the article, he says only that “the government has disputed the second Yemeni’s claim.”[i]

    “The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed (the government has disputed the second Yemeni’s claim).”

         That two of these men were seized elsewhere and brought to Bagram for the purpose of indefinitely detaining/torturing them is not in dispute.    The Obama case – at that time, solicitor-general Elena Kagan’s case – is a travesty, based on lies.  It should have been laughed out of court.    That is why the “court” that decided this does not deserve to be called a court of law.

        Bush-Cheney and now Obama seek to render the battle field “everywhere,” making no one, who falls under police state suspicion, able to avail themselves of even a hearing or day in court, to raise the issue that they may be innocent.  Where is the majesty of the law in America that Presidents do this?

      There is hysteria about big government on the Right (when it does decent, common good-serving things like provide green jobs or health care). But the Right cheers for  the biggest and nearly  most repulsive element of the government – the military/intelligence apparatus.  Worse yet, it advances BIG GOVERNMENT in throwing away many ordinary people – the chief objection historically of decent people who believe in the rule of law. Fighting decent government on the one hand, these authoritarians also advance tyranny. 

       Thus, Senators Lieberman, Scott Brown and McCain recently introduced an even more extreme  police state measure into the Senate (the President can declare a citizen an “enemy combatant” and disappear her).  This “court” and these senators’ resolution incarnate what Jack Balkin calls a National Surveillance State.

     “But a three judge panel of the United States Court of Appeals for the District of Columbia ruled that the three had no right to habeas corpus hearings in which judges would review evidence against them and could order their release.  The Court reasoned that Bagram was on the sovereign territory of another government and emphasized the ‘pragmatic obstacles’ of giving hearings to detainees ‘in an active theater of war.’”

      Savage knows, but does not tell the reader, that habeas corpus is the central principle of Anglo-American law. This is no small thing that Obama is throwing away.

        In addition, the American occupation created the puppet Karzai government.  The claim about “sovereign territory” is a pretence.  That the three men are “judges” in a “court” is true in name only.  They are like Nazi judges or inquisitors or Stalin-era creatures.  In England and the lower court, there are judges.  Ironically, two of these three judges were appointed by Clinton and Carter.  Off the bench, one might suppose, they are Democrats.  But on the bench, their views on the law swing with power; as this decision  reveals, they have no fealty to law.

       In contrast, John Bates, a W. appointee, upheld the law:

       “The men’s case was originally heard by Judge John D. Bates of the Federal District Court, an appointee of former President George W. Bush. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantanamo, arguing that courts should not interfere with military operations inside active combat zones [sic].”

      “But in April 2009, Judge Bates ruled that there was  no difference between the three men who had filed suit and Guantanamo prisoners.”

     The law was obvious, given the facts, and Judge Bates upheld it.

      “His decision was limited to non-Afghans captured outside Afghanistan – a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said.”

     Given that American officials run secret prisons and have black torture sites, for instance at Bagram, even within those prisons, why should the word of American officials be presented in “reporting” as trustworthy?  Is the fourth estate today more than a fanciful stitcher of “the emperor’s new clothes”? 

     Savage uses the term “officials” to suggest what he thinks about it, but most readers would hardly draw the obvious conclusion from this - he said the moon is made of green cheese, she said: it isn’t, there is no fact of the matter - sort of “reporting.” According to “our” government, waterfalls flow upward to the sky, but of course “reporters” don’t have eyes…

     The detainees’ lawyers spoke plain English, however, and Savage is able to cite them:

      “In urging the appeals court to let Judge Bates’ decision stand, lawyers for the detainees argued that reversing it would mean that the government would be able ‘to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

       Whether the tyrant can break the law is now, in America, so these “judges” say, at the authority of the tyrant.  He can “switch the Constitution…off at will.”

     The argument of Chief Judge Sentelle is memorable in its disdain for the rule of law:

      “But in the appeal panel’s decision reversing Judge Bates, Chief Judge David B. Sentelle said there had been no such gamesmanship” –note Savage’s odd use of a highly loaded term without even a pretence of citation (who is editing these articles on the front page?).  It was plainly what Bush had done before the Supreme Court Boumediene decision and habeas corpus is not “gamesmanship.”

     “…in the decision to bring the three detainees to Bagram because it happened years before the Supreme Court’s Guantanamo rulings.”

     Yet a shred of affection for law still poked up even in Sentelle:

    “Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantanamo in the future, writing, ‘We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than speculation”

          This is a war over law within the court system, trying to hold the Constitution against emerging executive tyranny. The Appeals Court, featuring two judges appointed by Democrats out of 3, is for tyranny.  The lower court, run by a judge stood for the rule of law (W. also appointed some people who care about the law).   It is a war in which the Constitution and separation of powers was upheld on the Supreme Court by the vote of one, then 87 year old man, Justice John Paul Stevens.  In this case, there will be no honorable review, as Savage suggests in his rather horrifying conclusion:

       “It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantanamo case.  Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.”

    “The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.”

      Law in America hangs by a thread.

 

May 25, 1:26 PM, 2010 · No Comment ·  

The Khadr Boomerang

By Scott Horton

In the military commissions prosecution of the Canadian child warrior Omar Khadr, the United States charges murder and attempted murder in violation of the laws of war, in connection with an incident in which a grenade was hurled at American soldiers, leaving one dead and injuring several others. The theory underlying this charge is that Khadr was not a member of any lawful armed force, and his throwing a grenade was an unprivileged act of homicide or attempted homicide. It’s uncontroversial that throwing a grenade with the intention of killing others is a criminal act that can be charged as homicide or attempted homicide unless it’s a privileged act. However, there is a strong opinion among law-of-war scholars to the effect that it is not a violation of the laws of war, but rather a violation of the criminal law of the nation where the incident occurred. Thus, the Khadr prosecution rests on a faulty or eccentric legal position. Now the Vancouver Sun has disclosed that senior lawyers inside the Obama Administration fully recognized that the prosecution of Khadr rested on a false legal premise and attempted to stop and change the prosecution, apparently without success.

Officials in the Obama administration demanded a game-changing rule change for the Guantanamo Bay military tribunal that would have likely scuttled the war crimes murder charge against Canadian-born terror suspect Omar Khadr, Canwest News Service has learned. The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say. Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate. Prosecutors said in the wake of the Bush Administration they were prepared to take about 60 Guantanamo detainees to trial—among them the accused co-conspirators of the Sept. 11, 2001 attacks.

The Sun notes that the dispute erupted between lawyers at the State and Defense Departments, with the nation’s senior international law officer, Legal Adviser Harold Koh, arguing that the provision should be dropped, while the senior Defense Department lawyer, Jeh Johnson, supported the provision.

I recently discussed Koh’s attempt to justify the use of drones for targeted killings. I noted that Koh had failed to address an obvious legal issue—that the drones were being operated by civilian contractors, not uniformed military personnel who are privileged to used lethal force under the law of war. The drone warfare raises the same issue that the Khadr prosecution does: if the operators of these systems are not privileged to use lethal force, are they committing a crime under the law of war when they do so? The language adopted in the manual for military commissions argues that they are, but the position taken by the State Department to justify the use of drones assumes the opposite. These positions are difficult to reconcile.

Does this mean that the prosecution of Omar Khadr for homicide as a violation of the law of war could boomerang on the United States? It’s clear than some of the Obama Administration’s best legal minds are concerned about precisely that. And it’s clear that the posture taken in the prosecution of Khadr presents a troubling precedent for civilian contractors, not just those who operate the drones. It is not likely, of course, that the United States will ever charge any of its contractors with “homicide under the law of war” for the use of lethal force in a conflict setting, but the prosecution of Khadr opens the door for others to do so.

The Sun report only serves to highlight the shortcomings of the process of setting the military commission rules. The Gates Pentagon prepared the manual for the military commissions completely behind closed doors. It disregarded established procedures under which proposed procedural rules are disclosed for public comment and the views of the military bar itself are explicitly solicited. We now see that it turned to secrecy because it had something to hide: the rules were recognized as flawed and weak even within the Obama Administration, where they were subjected to appropriately sharp criticism. Had they been publicly aired, the Pentagon would have been forced to work out the contradictions in them. But it opted to keep the country and the bar in the dark.

The Obama Administration owes the country a clear explanation of its legal policy positions with respect to law-of-war issues. What it has served up instead is a series of half-baked and unresolved controversies that undermine confidence in the military justice system. Common Article 3 of the Geneva Conventions, which the Supreme Court has held to be binding on the military commissions, says they must be a “regularly constituted court.” But at every turn, the Pentagon has taken shortcuts that compromise the credibility of these tribunals.

 

U.N. Official to Ask U.S. to End C.I.A. Drone Strikes

By CHARLIE SAVAGE

Published: May 27, 2010     

WASHINGTON — A senior United Nations official is expected to call on the United States next week to stop Central Intelligence Agency drone strikes against people suspected of belonging to Al Qaeda, complicating the Obama administration’s growing reliance on that tactic in Pakistan.

Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, said Thursday that he would deliver a report on June 3 to the United Nations Human Rights Council in Geneva declaring that the “life and death power” of drones should be entrusted to regular armed forces, not intelligence agencies. He contrasted how the military and the C.I.A. responded to allegations that strikes had killed civilians by mistake.

“With the Defense Department you’ve got maybe not perfect but quite abundant accountability as demonstrated by what happens when a bombing goes wrong in Afghanistan,” he said in an interview. “The whole process that follows is very open. Whereas if the C.I.A. is doing it, by definition they are not going to answer questions, not provide any information, and not do any follow-up that we know about.”

Mr. Alston’s views are not legally binding, and his report will not assert that the operation of combat drones by nonmilitary personnel is a war crime, he said. But the mounting international concern over drones comes as the Obama administration legal team has been quietly struggling over how to justify such counterterrorism efforts while obeying the laws of war.

In recent months, top lawyers for the State Department and the Defense Department have tried to square the idea that the C.I.A.’s drone program is lawful with the United States’ efforts to prosecute Guantánamo Bay detainees accused of killing American soldiers in combat, according to interviews and a review of military documents.

Under the laws of war, soldiers in traditional armies cannot be prosecuted and punished for killing enemy forces in battle. The United States has argued that because Qaeda fighters do not obey the requirements laid out in the Geneva Conventions — like wearing uniforms — they are not “privileged combatants” entitled to such battlefield immunity. But C.I.A. drone operators also wear no uniforms.

Paula Weiss, a C.I.A. spokeswoman, called into question the notion that the agency lacked accountability, noting that it was overseen by the White House and Congress. “While we don’t discuss or confirm specific activities, this agency’s operations take place in a framework of both law and government oversight,” Ms. Weiss said. “It would be wrong to suggest the C.I.A. is not accountable.”

Still, the Obama administration legal team confronted the issue as the Pentagon prepared to restart military commission trials at Guantánamo Bay. The commissions began with pretrial hearings in the case of Omar Khadr, a Canadian detainee accused of killing an Army sergeant during a firefight in Afghanistan in 2002, when Mr. Khadr was 15.

The Pentagon delayed issuing a 281-page manual laying out commission rules until the eve of the hearing. The reason, officials say, is that government lawyers had been scrambling to rewrite a section about murder because it has implications for the C.I.A. drone program.

An earlier version of the manual, issued in 2007 by the Bush administration, defined the charge of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.

But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that C.I.A. drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage — an offense under domestic law not considered a war crime.

“An accused may be convicted,” the final manual states, if he “engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.”

Under that reformulation, the C.I.A. drone operators — who reportedly fly the aircraft from agency headquarters in Langley, Va. — might theoretically be subject to prosecution in a Pakistani courtroom. But regardless, the United States can argue to allies that it is not violating the laws of war.

Mr. Alston, the United Nations official, said he agreed with the Obama legal team that “it is not per se illegal” under the laws of war for C.I.A. operatives to fire drone missiles “because anyone can stand up and start to act as a belligerent.” Still, he emphasized, they would not be entitled to battlefield immunity like soldiers.

Mary Ellen O’Connell, a Notre Dame University law professor who has criticized the use of drones away from combat zones, also agreed with the Obama administration’s legal theory in this case. She said it could provide a “small modicum” of protection for C.I.A. operatives, noting that Germany had a statute allowing it to prosecute violations of the Geneva Conventions, but it does not enforce domestic Pakistani laws against murder.

In March, Mr. Koh delivered a speech in which he argued that the drone program was lawful because of the armed conflict with Al Qaeda and the principle of self-defense. He did not address several other murky legal issues, like whether Pakistani officials had secretly consented to the strikes. Mr. Alston, who is a New York University law professor, said his report would analyze such questions in detail, which may increase pressure on the United States to discuss them.

 


*Suicide bombers, however, do rampantly kill innocents.

[i]   He is not, after all, Judith Miller or Michael Gordon, purveying Cheney/Ahmed Chalabi smoke in the campaign for American aggression in Iraq.  See Amy and David Goodman, “The Lies of the Times” in Exception to the Rulers.

Thursday, May 27, 2010

The slow death of law, part 1

           Several articles in the last few days have made a new stage of Obama’s Presidency – the consolidation of the abolition of habeas corpus, of the disrespect for a system of law and decency, of an emerging and, sadly, bipartisan tyranny - clear. Jack Balkin, the constitutional lawyer who teaches at Yale (see Balkinization website), has named this bipartisan movement across Republican and Democratic administrations a new stage of law: a national surveillance state. 

       When they were out of power, Democrats objected to this.  But once in power, many Democrats forget the very reasons they opposed a police state under Bush.  Correspondingly, Republicans are invested in protecting war criminality and other crimes (Rove’s firing of federal attorneys and bending the law to influence elections as in the strange tale of the jailing of former Governor Siegelman of Alabama).  

       Balkin offered this concept to describe how dramatic shifts in/against the law become bipartisan and hence, politically acceptable over time.  This instance is special and frightening, however, because it attacks the very basis of Anglo-American law: habeas corpus, the right of each person to a day in court and not to be tortured.  In the Bush-Cheney administration, the stick was bent so far to Reaction – to an authoritarian regime, one reliant on illegal spying on Americans, arbitrarily  locking up suspects indefinitely, torture even of American citizens (Jose Padilla), and now killing Americans by Presidential order and without any judicial proceeding (Obama’s order about the American citizen, the imam Awlaki who, now that there is an assassination order out on him, the New York Times reported last week, is apparently broadcasting incitements to murder American civilians - to murder innocents as a response to the American murder of innocents).   

     Now Obama is a constitutional lawyer and taught constitutional law at Chicago.  In his campaign, he spoke about how the Bush police state makes us less safe and/by making us less free.  This emerging, bipartisan tyranny is particularly sad because as a candidate, Obama named the danger, barred water-boarding and some other forms of torture by executive order his second day in office, and plainly knows better.  He is moved here, as much as in his betrayals of the anti-war movement (he is an anti-"dumb Iraq war" candidate, but even though he is withdrawing troops from combat, he plans to leave a garrison of 100,000 – 50,00 soldiers, 50,000 mercenaries – on bases in Iraq), by crass political considerations. 

          The strictly authoritarian party now mislabeled Republicans or “conservatives” seeks to use the infinitely expansive and vague  “war on terror” to abolish American law.  They live on scaring citizens, so that even the slightest gestures at courage and principle – say, trying Khalid Shaikh Mohammed in New York City as Attorney General Eric Holder, in his best moment in office so far, wanted to.  But the “courageous” leaders of the United States of America, with its $708 billion official military budget (2 1/2 times Cold War levels - see here), 800 bases abroad (the French have 5, no one else any), will give up law at the threat of a terrorist attack, without notice.   Bin Laden could not do this to the United States; only Bush-Cheney and Obama could sacrifice what is decent in America to the supposed needs of a "war on terror."

        In addition, America fires drone missiles at Pakistan, a country we have not declared war on (we just aggress in this case, Somalia and Yemen, without the affectation of law).     

         Murdering 60 civilians, the Pakistani government says, for every terror suspect (recall that our “intelligence” about the tribal areas is weak; we have not killed  Bin Laden in 9 years; Pakistani officials may have been generous to the United States in suggesting that it only murders 60 innocents for every “terrorist”).  The rightwing or warmonger "think" tanks in Washington say, “oh, we’re much better than that.  We only kill 5 innocents for every terrorist.”  Good to know that on a warmongering, pro-"American" account, one intended to smooth the way for such activities, the CIA/Xe fires off missiles from Langley to murder “only” 82% civilians.  Al-Jazeera rightly named this "collateral murder," except that there is nothing collateral about it.  See here.

         Candidate Obama would have recognized that these policies of a President are crazy and counterproductive (they are also evil).  Such actions  make ever new people who hate America for murdering their parents, friends, children, and create a political screen, and, as an outlier, recruits for terrorism.  In addition, they make the over-technologized American military look like cowards (a mirror of but worse than the Company in Avatar).  It is not clear to me how self-respecting military or “intelligence” people carry out such murders (now one has but to carry water to a suspected terrorist’s house and appear on the distant screen of some agent who doesn’t even speak the language – good enough "evidence" to off the watercarrier...) or how President Obama, a decent and intelligent man, looks at himself in the mirror every morning. 

         The US has sought to prevent legal discussion of these murders, but Phillip Alston, the UN special rapporteur "on extra-judicial, summary or arbitrary executions" and an American law professor, is about to deliver a report June 3 addressing the culpability of private citizens/non-soldiers (CIA and Xe operatives) in carrying them out. The UN special rapporteurs on torture (Manfred Nowak) and now summary executions have both directed reports and recommendations for judicial action against American leaders.  I will comment more on this in the second part of this post, but the issue Alston raises, while indeed a form of criminality, is nothing to the moral outrage and political counter-productiveness among ordinary people which American long-distance murder  creates (see Charlie Savage in the New York Times today here).

         For fear of being condemned by the Republicans, most Democrats are willing to sacrifice even core principles of law.  A bipartisan consensus about torture – at minimum that those who did it are above the law; more likely, that many forms of torture probably go on at black sites, like the one at Bagram. There is another reason: again, the torturers are too much of the Bush administration and the leaders of the CIA (not to mention Rove).  Colin Powell probably resisted enough not to be on trial for torture (aggression is a different matter - Powell is guilty of that - but American officials will not be subject to Nuremberg/Tokyo prosecutions for this, the first and greatest of international crimes).  Every other Bush official concerned with foreign policy, "legal advice" and treatment of prisoners, however, is a prime candidate.  

         Further, holding the support of the American people for the 5 aggressions and occupations – Iraq, Afghanistan, Somalia, Pakistan, Yemen – depends on lack of pubic awareness.  Defeated and frightened by protest, the elite abolished the draft after the Vietnam war.  Bush launched the first modern war without taxes – cutting taxes especially for the rich – while borrowing from China.  Talk about a shell game: “There is a dangerous threat," Bush shouted, "shop til you drop…” 

        Ordinary people do not like either war or occupation (Obama had to put his popularity on the line to put over the escalation in Afghanistan).  But even being broke and in a depression (17.2% real unemployment, 9.7% official unemployment, as David Leonhardt strikingly revealed in the New York Times here), the costs of the war are concealed from ordinary Americans, borne only by the minority who enlist and are re-upped or face stop-loss in the national guard, as well as their families and friends.  

        America has a mercenary army and is fighting the most undemocratic of wars/occupations.  Despite considerable discontent and major protests in the past (including the pre-war protests and the election of Obama), an increasingly bipartisan consensus in the two party elite on  an aggressive imperial police state is unfolding before our eyes.  The five stories in this post and the next make it clear that much of this is unnecessary, that it is possible for leaders to stand up against this and for decency (what Obama seemed to be, still, to some extent, is on Palestine and Iran), and provide an alternative.

     The first concerns the accession of Nick Clegg in the Tory-Lib Dem alliance in England.  He sought to turn back Labour’s criminal erosion of civil liberties there, and the new Tory Prime Minister, Cameron, agrees.  Further, the Tory Foreign Minister William Hague has announced judicial investigations about the Labour government’s involvement in torture.  This will run, if allowed to proceed, high up – Tony Blair and perhaps David Miliband, inter alia.  

         As Scott Horton rightly underlines, this is what a democracy does about war criminality.  It does not bloviate, with Obama, about “looking to the future.”  It assesses responsibility, and works to remove the stain of Torquemada or Himmler, from its record:

     In a recent ruling, some of Britain’s most senior judges suggested strongly that they were also highly dissatisfied with the government’s statements on the subject, which they characterized as misleading. It’s clear that the Labour government was engaged in the same sort of dissembling about torture that marked the Bush Administration, using wiggle words with secret meanings. If the truth is now to emerge, it serves the public interest in Britain, just as it would serve the U.S. public interest, for it to emerge from a detached and depoliticized process–so the formal judicial inquiry is the appropriate tool, just as a commission of inquiry would be for the United States.”

     Unlike the Obama administration’s trend (starting decently about barring water-boarding and releasing torture memos but recently in dramatic and continuous decline), under this new coalition, Britain moves, once again, toward the rule of law.  It conducts itself as a self-respecting parliamentary government, one which insists on the law, and will not allow itself to become desperate and criminal.

       Perhaps it was lucky for Britain that Labour was in power to be suborned by the U.S. (Blair was “Bush’s poodle” as the British anti-war movement aptly named him).  The Tories and the Lib-Dems were gutless sycophants about the war even in this campaign (see here), but they stood up against torture and for civil liberties.  In America, Bush and Cheney turned the Republicans into authoritarians.  The conservative friends of law – say, Scott Horton and Andrew Sullivan – were outside this party.  So there is no defense of law or liberty from a conservative perspective within mainstream American politics, no one to call Obama to account (to force him to  “be Obama”).  The main pressure in American two party competition is toward Reaction or as I call it, a right-wing two step.  Hence, the sad drift…

       The second article, “Tainted Justice,” a Monday editorial from the New York Times denounces the initial use of a military tribunal on Omar Khadr.  Khadr, a Pakistani born in Canada,  was detained at the age of 15 as an enemy combatant, fighting alongside his father against the American invasion of Afghanistan.  He was tortured in Bagram and Guantanamo for 8 years.  The editorial tells his story:

     “During a recent pretrial hearing at Guantánamo, it emerged that his initial questioning at Afghanistan’s Bagram prison occurred while he was sedated for pain and shackled to a stretcher following his hospitalization for severe wounds suffered in the fighting.”

      “His first interrogator, identified at the hearing only as Interrogator One, was an Army sergeant later convicted of detainee abuse in another case. He used threats of rape and death to frighten the teenaged Omar Khadr into talking. Another witness recalled seeing him hooded and handcuffed to his cell with his arms held painfully above his shoulders. When the hood was removed, he testified, he could see that the teenager was crying.”

    If you can take this in without shuddering for Khadr and for America, you are stronger than me.

         Omar was a child whom Americans tortured.  The law treats minors as not having reached full adulthood.  Further,  the US is bound by international agreements – the Geneva conventions, the Convention against Torture - as well as decency on this matter; Article 6, section 2 of the Constitution, the Supremacy Clause, makes such treaties the highest law of the land.

         The US tortured a confession out of him; as is well established since World War II among military people,  torture never yields valid information, but rather what the torturer wants to hear.  See What the torturer knew here.  What does it say of the United States of America that it tortures children?

      The fantasy “24” is mercifully gone as of this week, but its true face haunts the military commissions.  As the Times editorial points out, justice internationally and in the U.S.  mandates some attempt to rehabilitate children.  The US has probably made Khadr more on an enemy – 8 years of torture and indefinite detention will do that - if it has not broken him, as it did Padilla (whose defense attorneys describe him as a "chair"); it will also shock every person who hears of the case.  Could an enemy have plotted to degrade American military tribunals more thoroughly than this?

      At best, the military commissions are a jury-rigged, political replacement for the rule of law which would have dealt with this case comparatively decently and efficiently (the law would have cut him loose swiftly, perhaps more swiftly than even the Times suggests)   No one could bring down what is decent in America with a bomb; it takes American officials, including now Gates-Obama, to do that.

       Though Obama pursued closing Guantanamo seriously for a while, he has now reneged on this goal. As President of a somewhat reformed torturer regime, he cannot bring confessions secured under torture into a courtroom.  Hence, the military commissions.  But what can one say – the editorial does pretty well – about making the first case one of a tortured and thrown away for 8 years, child? 

      The Times is a pro-government newspaper,  For instance,  it hid information about Bush spying illegally on Americans for over a year, probably costing Kerry the 2004 election.  If the Times had acted responsibly, this outrage would at least have required an even greater shifting of votes from Kerry to Bush through computerized voting machines which leave no paper trial (see my Corrupt before a vote was cast here).  More importantly by failing to oppose executive illegality, it undercut America decency. Its editorial gives a mild approximation of how decent people abroad see us.  See Imagine here

New U.K. Government Opens Formal Torture Inquiry

By Scott Horton

How does a newly elected government concerned about civil liberties and the accountability of its predecessor react to credible claims that intelligence operatives were involved in the torture of prisoners? Britain’s new foreign secretary, Conservative William Hague, shows the way. The Guardian:

"A judge will investigate claims that British intelligence agencies were complicit in the torture of terror suspects, William Hague, the foreign secretary, said tonight. The move was welcomed by civil liberties campaigners and may put pressure on the Labour leadership candidate and former foreign secretary David Miliband, who was accused by Hague, while in opposition, of having something to hide. Miliband has repeatedly rejected the accusation and broadly indicated that he or his officials may have been misled by foreign intelligence agencies about the degree of British complicity."

"Hague’s remarks appear to have caught the Foreign Office by surprise, as no details were yet available on how the inquiry will be conducted, its terms of reference or when it will start work. Hague will come under pressure to ensure the inquiry is public and comprehensive. He first called last year for an independent judicial inquiry into claims that British officials had colluded in the torture of Binyam Mohamed, the former Guantánamo detainee and a UK resident. Mohamed claimed that he was tortured by US forces in Pakistan and Morocco, and that MI5 fed the CIA questions that were used by US forces."

The usual issues will surround the inquiry. Will immunity be offered for testimony? Will the proceedings be open to the public? What judge will be tapped to handle it?

Notwithstanding the Guardian’s suggestion of surprise, this development was widely anticipated. Hague, while serving as shadow secretary, sharply criticized Miliband over his management of the torture issue. In a recent ruling, some of Britain’s most senior judges suggested strongly that they were also highly dissatisfied with the government’s statements on the subject, which they characterized as misleading. It’s clear that the Labour government was engaged in the same sort of dissembling about torture that marked the Bush Administration, using wiggle words with secret meanings. If the truth is now to emerge, it serves the public interest in Britain, just as it would serve the U.S. public interest, for it to emerge from a detached and depoliticized process–so the formal judicial inquiry is the appropriate tool, just as a commission of inquiry would be for the United States.

The new coalition Conservative-Liberal government in Britain is slowly revealing its hand. A number of commentators have wondered how these two parties could mount a consensus program, given that they seem to represent the extremes of the parliamentary spectrum. However, British parliamentary history points to some significant common ground–especially in the Old Whig tradition of the late eighteenth and early nineteenth centuries. The Old Whigs put a premium on personal freedom and endorsed a moderate, steady reform agenda. Their greatest spokesman, Edmund Burke, emerged as a hero to later generations of Conservatives (many of whom are shocked to learn that he was actually not just a Whig but at times a sharp critic of the Conservatives). As Andrew Sullivan has recently argued, the emerging program of the Cameron-Clegg government in fact highlights a revival of civil liberties. It should therefore come as no surprise that the government now moves decisively to do what its Labour predecessor sharply resisted: a comprehensive formal investigation of torture allegations. At this point, no issue is more fundamental to the civil liberties agenda. The Obama Administration should watch and learn a bit about how a modern democracy approaches the question of accountability for torture.

EDITORIAL

Tainted Justice

Published: May 23, 2010

       Justice Department and Pentagon officials have chosen a troubling case for the first trial under the revisions that were adopted to the Military Commissions Act in 2009 — a Toronto-born Guantánamo Bay detainee named Omar Khadr. Mr. Khadr, 23, has been in detention since he was 15, when he allegedly threw a hand grenade during a firefight in Afghanistan that fatally wounded Sgt. First Class Christopher Speer.

Mr. Khadr was not a mere bystander. He was indoctrinated into armed conflict by his father, a member of Osama bin Laden’s circle who was killed by Pakistani forces in 2003. But if his trial goes forward this summer as scheduled, he will be the first person in decades to be tried by a Western nation for war crimes allegedly committed as a child.

That has drawn justified criticism from United Nations officials and civil liberties and human rights groups. The conditions of Mr. Khadr’s imprisonment have been in clear violation of the Geneva Conventions and international accords on the treatment of children.

During a recent pretrial hearing at Guantánamo, it emerged that his initial questioning at Afghanistan’s Bagram prison occurred while he was sedated for pain and shackled to a stretcher following his hospitalization for severe wounds suffered in the fighting.

His first interrogator, identified at the hearing only as Interrogator One, was an Army sergeant later convicted of detainee abuse in another case. He used threats of rape and death to frighten the teenaged Omar Khadr into talking. Another witness recalled seeing him hooded and handcuffed to his cell with his arms held painfully above his shoulders. When the hood was removed, he testified, he could see that the teenager was crying.

In January, the Supreme Court of Canada condemned the questioning of Mr. Khadr by a Canadian official who then shared the results with American prosecutors. The ruling cited Mr. Khadr’s lack of access to counsel and his inclusion in the military’s notorious “frequent flier” program, which used sleep deprivation to elicit statements about serious criminal charges.

A ruling from the military judge on the admissibility of Mr. Khadr’s statements is not expected for several weeks. But there’s already a bad lingering taste from the hearing, which began just hours after Defense Secretary Robert Gates formally approved a new set of rules for the tribunals and before Mr. Khadr’s lawyers or the judge had a chance to review them. The rules are an improvement over those that governed the Bush commissions, but they have flaws, including the use of hearsay.

During the hearing, the Pentagon barred four reporters from covering any military commission because they printed the name of Interrogator One, even though it has been public for years and is readily available on the Internet. The administration needs to restore the reporters’ credentials.

It also needs to press forward with negotiations on a plea deal. The evidence that Mr. Khadr threw the deadly hand grenade is not clear-cut. Even if it were, it would be impossible to overlook his abuse in custody, and status as a juvenile, which deprived him of mature judgment.

After Mr. Khadr’s eight-year ordeal, it would be no disrespect to Sergeant Speer to return Mr. Khadr to his home country under terms designed to protect public safety and strive for his rehabilitation.

Saturday, May 22, 2010

On "enemies" and extermination: Heidegger, Schmitt and Strauss



    Paul Stucky, a fine graduate student who has spent some time previously studying Being and Time, is taking a seminar with me on Hegel and Heidgger. Normally, I spend more time in this seminar – it is only 10 weeks – on the Philosophy of Right which is a more striking work in political and social theory – the foundation of a decent modern democratic theory, even though Hegel is oddly, perhaps, fearing persecution by the authories, more likely, because he feared the class struggle in England in which he saw little possibility of decency or universality from the regime, a monarchist – and hard for most of us to take in the structure of. I have met only two people whose minds work like Hegel’s, who get the argument theoretically – follow the unfolding of the concept - without much effort. The rest is spent on Being and Time or on What are Poets for? [Wozu Dichter?]. This year, however, I suggested – and the whole class agreed - to focus the second part of the course on Heidegger’s 1943 The Essence of Truth: Plato's Cave-Metaphor and the Theaetetus. Paul not only did a fine talk on Being and Time, but has dug around in Heidegger’s earlier lectures on Greek thought, which feed into the 1943 lectures.

       Four days ago, while I was away in Portland, the class met, and Paul brought in a ferocious citation from Heidegger during his earlier 1933-35 lectures on The Essence of Truth, for which he usefully provides the English and the German below. This citation is also in Emmanuel Faye, Heidegger: the Introduction of Nazism into Philosophy, p. 168. Faye says some important things about it - notably about its link to the Nuremburg anti-semitic laws of 1935 and the Gleichshaltung [Nazi coordination of German life and blacklisting of Jews], but does not fully explore either its striking relation to Carl Schmitt’s The Concept of the Political or its further relationship to Leo Strauss’s critique, one which strengthens Schmitt’s argument as a fascist. In the context of my current posts on Heidegger’s vision of Plato’s cave-metaphor, Strauss's hinting assertion at the conclusion of his remarks - to get beyond the horizon of Hobbes and "liberalism" - takes on a frightening new resonance. The despised liberalism turns out to be roughly any worries about individuals or individuality at all. Instead, Strauss seeks a return, following Heidegger, to the Greeks as the supposed realm of a national (for Heidegger, racial) collective and destiny. For Strauss, of course, a national revolution should have included assimilated or German Jews. 

       Strauss's phrase about returning to the Greeks set in motion Heinrich Meier’s insistence – as well as that of other followers – that Strauss was yet to “become Strauss,” that is, to become a Plato and Xenephon scholar in America with a few casual and quickly taken back allusions to “constitutional democracy.”

       But actually, as I have shown in these posts here and here (and will post more on the 1943 Essence of Truth shortly), Heidegger had already moved to the Greeks. Strauss admired Heidegger as "the one great thinker" of our era. Strauss’s supposed “becoming Strauss” was nothing but his "esoterically" becoming Heidegger, the national socialist (minus only, after 1940, Hitler's explosive enmity toward Jews; anything less genocidal from Hitler Strauss surprisingly seems to accept – see Shadings: "they consider me a 'Nazi' here" - Leo Strauss, December 3, 1933 here and Blitzkriegs here). 

             On August 22, 1933, Heidegger wrote Schmitt a letter, inviting collaboration in the struggle or war (polemos), the coordination (Gleichshaltung) of the University as a tool of the Nazis, the firing of Jews, the sole focus on World War. On Nazi authority, Heidegger extended the Fuehrer-prinzip to the university, naming himself Rektor-Fuehrer:

“Most honored Mr. Schmitt,

       I thank you for having sent me your text, which I already knew in the second edition [Schmitt had sent the 3rd edition of The Concept of the Political] and which contains an approach of the greatest importance. I would be most appreciative if I could speak with you about this viva voce [with a living voice] some day. On the topic of your quotation of Heraclitus, I especially appreciated the act that you did not forget the basileus [king], which alone gives the whole saying its full content, when it is fully interpreted. For years I have had such an interpretation ready, concerning the concept of truth – edeixe and epoicse [reveals and makes], which appear in fragment 53.[1] But I now find myself also in the middle of the polemos [war] and the literary projects must give way. I would only like to say to you today that I am counting very much on your decisive collaboration, when it comes to the entire rebuilding, from the inside, of the Faculty of Law, in its educational and scientific orientation. Here the situation is unfortunately quite hopeless. The gathering of spiritual forces, which should lead up to what is coming [i.e. aggression, world war, genocide] becomes increasingly urgent. I conclude today with my friendliest salutations.

Heil Hitler!

Your Heidegger"

[Reproduced in Faye, p. 155]. Schmitt did not respond to Strauss’s letters because the latter was a Jew. But apparently, he didn’t answer this letter either (the leading legal official in Nazi Prussia, he no longer busied himself so much with the Faculty of Law).[ii]

Schmitt’s The Concept of the Political was initially published in the same year as Being and Time (1927). Heidegger read it carefully, and his own version of politics, also centered on “the enemy,” was, by 1933, openly anti-semitic and genocidal compared to Schmitt’s book. But The Concept of the Political could easily fit into Nazi rhetoric; Schmitt soon gave the argument this turn as Prussian Reichskanzler under Hitler. Nonetheless, the pre-Nazi version refers more clearly (except perhaps for references to Lenin’s “annihilating sentences on the bourgeoisie”) to external conflict. 

       In the passage Paul emphasizes, Heidegger takes up the central idea in The Concept of the Political. Everything – all social life - is to be geared in the light of having an enemy. Heidegger makes Schmitt (and Strauss’s remarks on Schmitt's text) more precise. One needs an internal enemy, and one must create such an enemy if she does not appear – note the genocidal provocation.

      "The enemy is not necessarily the outside enemy, and the outside enemy is not necessarily the most dangerous. It may even appear that there is no enemy at all."

      One must find or create an enemy:

      "The root requirement is then to find the enemy, to bring him to light or even to create him [oder gar erst zu schaffen]..."

      One must smoke out this enemy for otherwise life will become stumpf (Paul translates this "apathetic"):

      "in order that there may be that standing up to the enemy, and that existence not become apathetic [und das Dasein nicht stumpf werde]."

By stumpf, Heidegger means the life of the “last men” (with Nietzsche and Strauss), but he also concurs with Schmitt (the life of entertainment is the life of Satan – see here). 

      Note the effort that the state must exert to isolate and crush the weak. [iv] Every aspect of Heidegger’s phony masculinity, his breathlessness about others risking death for the fatherland, his costuming himself as a peasant – who is it who needs to be “authentic”? - his use of his powerful position to destroy Jews including his students, is here on exhibit. Nietzsche was a visionary psychologist. Heidegger is as lacking in psychological insight, let alone self-insight, as it is possible for a modern person, especially someone who wrote 4 volumes of commentary on Nietzsche, to be (Strauss is a close second).

      Nonetheless, Heidegger’s philosophy is mysterious, uncanny, leads to deep ecology (if one stops and makes an alternative move quite early in its development) or to authentic mit-sein or being with (say, the American civil rights movement or the Warsaw Ghetto uprising or Sophie Scholl of the White Rose), incorporates personal mortality, has some references to Buddhist enlightenment (he joins with Zen Buddhists, has conversations with D.T. Suzuki), also pointing toward the “unsayable” (Plato’s shining idea of the good).[iii] 

      In his posthumously published Glossarium, Schmitt espouses a grotesque Medieval Catholic anti-semitism (one which made me physically ill to take in). Even Friedrich Stahl, the famous Prussian conservative whom Schmitt praised in the twenties, becomes “the Jew Stahl-Jolson.” See Enmity and Tyranny here. Schmitt offers the thought – the word loony is not fierce enough, perhaps psycho gets to its quality – that every position offered by a Jew is an enigmatic mask which shifts arbitrarily – given the Satanic shape-shifting of the “evil ones” – into something else.[v]

      In this respect, Heidegger, a lapsed Catholic, offers an analogous “thought” 50 years before Glossarium was publiItalicshed (Schmitt was, however, also already a Nazi leader, Heidegger perhaps not quite so original in depravity):

      "The enemy may have grafted himself onto the innermost root of the existence of a people, and oppose the latter's ownmost essence [eigenem Wesen], acting contrary to it. All the keener and harsher and more difficult is then the struggle, for only a very small part of the struggle consists in mutual blows; it is often much harder and more exhausting to seek out the enemy as such, and to lead him to reveal himself,..."

        In Jung’s sense, this is pure projection. It is Heidegger and Schmitt who wear the masks of important people – the university Rektor-Fuehrer, the chief Nazi lawyer – who murder the weak, the unprotected, the victimized. Heidegger goes in and out of fascist or Nazi mode in the most interesting ways (with careful writing and even speaking, he fools a few students like Marcuse and Arendt; he did not fool nor did he intend to fool Strauss or Heyse or Becker – the latter, both Heidegger's students are two of the 6 leading Nazi philosophers; Heidegger and these two made up half the leaders of Nazi philosophy). Perhaps by example, he taught Strauss to distinguish a political inner circle from other students whom he encouraged to go their own way.[vi] 

       Note the image of the Jews assimilating: “the enemy may have grafted himself onto the innermost root of the existence of a people and oppose the latter’s ownmost essence.” This is nothing but Schmitt’s thought in the Glossarium (entry for September 25, 1947)

       "Jews remain always Jews. While Communists can better themselves and change. That has nothing to do with the Nordic race, etc. The assimilated Jew is especially the true enemy [Gerade der assimilierte Jude ist der Wahre Feind]." See Enmity and Tyranny here. 

       Heidegger cultivated the mask, sadly aided by Arendt, of a philosopher high above Nazi attachments see, here. No, Heidegger was a philosophical monster. No victim, he was the aggressor and urged constant provocation to “seek out the enemy as such and lead him to reveal himself.” He was what he projected onto others. He couldn’t just kick Jews once. He had to kick them, lying on the ground, again and again. He talked of the evils of technology. He became himself almost the perfect mechanical item in thought and politics, kicking the life out of helpless people, kicking, kicking... 

       I should also underline the idea of standing up against the enemy, which Heidegger identifies with Heraclitus’s notion of polemos. He repeats it, almost as a mantra,

       “With grandeur and simplicity, at the beginning of the fragment, there appears the word polemos, war [Krieg]. What is so designated is not the external event or the advance of the ‘military,’ but rather that which is decisive, to stand up against the enemy. I have also translated this as ‘struggle’ to seize the essential, but it is also important to reflect on the following: it is not a question of agon, vying/competition, in which two friendly [freundliche] adversaries measure forces against one another, but of polemos (war [Krieg]), which means that there is something serious in struggle; the adversary is not a partner, but an enemy. Struggle as a holding out in the face of the enemy; more precisely an endurance in confrontation.' Faye, p. 167 [vii] 

      As for Strauss, he hated the prophets, the Jews who spoke truth to power, the proponents of equality. In his 1932 Geistige Lage der Gegenwart (Spiritual Situation of the Present), Strauss says:

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

       “Through Nietzsche, tradition has been shaken at its roots. It has completely lost its self-evident truth. We are left in this world without any authority, without any direction.” (Strauss, Gesammelte Schriften, 2:389; trans. Michael Zank; h/t William Altman).”

Strauss continues insistently: “and even so, the Bible: we can no longer assume that the Prophets are right; we must earnestly ask whether the kings are not right.” Strauss magnifies (as Heidegger did[viii]) Nietzsche’s most reactionary and anti-semitic thought to the Right (Beyond Good and Evil, par 195 [viiia]; all the rest of Nietzsche disappears).

      At the end of this passage Paul brought to class, Heidegger names the “voelligen Vernichtung,” the total annihilation or extermination, which must be visited on “the enemy”:

       "...and to initiate the attack on a long-term basis, with the goal of total extermination [völligen Vernichtung]."

      Heidegger made Schmitt and Strauss (The Concept of the Political and the remarks) even more venemous, focused on a hidden, domestic racial enemy with genocidal intent. The three broadly agreed (Strauss stopped short of extermination). Heidegger as well as Schmitt should have been tried at Nuremberg (see my Enmity and Tyranny here).

       Paul Stucky wrote:

       "Here is the quote I brought to class today. It is from the lectures Vom Wesen der Wahrheit, given in the winter semester of 1933/34 at Freiburg. These would later be revisited in the 1943 work Vom Wesen der Wahrheit."

       "The enemy is one who poses an essential [wesentliche] threat to the existence of the people [des Daseins des Volkes] and its members. The enemy is not necessarily the outside enemy, and the outside enemy is not necessarily the most dangerous. It may even appear that there is no enemy at all. The root requirement is then to find the enemy, to bring him to light or even to create him [oder gar erst zu schaffen], in order that there may be that standing up to the enemy, and that existence not become apathetic [und das Dasein nicht stumpf werde]. 
The enemy may have grafted himself onto the innermost root of the existence of a people, and oppose the latter's ownmost essence [eigenem Wesen], acting contrary to it. All the keener and harsher and more difficult is then the struggle, for only a very small part of the struggle consists in mutual blows; it is often much harder and more exhausting to seek out the enemy as such, and to lead him to reveal himself, to avoid nuturing illusions about him, to remain ready to attack, to cultivate and increase constant preparedness and to initiate the attack on a long-term basis, with the goal of total extermination [völligen Vernichtung]."

         "Feind ist derjenige und jeder, von dem eine wesentliche Bedrohung des Daseins des Volkes und seiner Einzelnen ausgeht. Der Feind braucht nicht der äußere zu sein, und der äußere ist nicht einmal immer der gefährlichere. Und es kann so aussehen, als sei kein Feind da. Dann ist Grunderfordernis, den Feind zu finden, ins Licht zu stellen oder gar erst zu schaffen, damit dieses Stehen gegen den Feind geschehe und das Dasein nicht stumpf werde.
Der Feind kann in der innersten Wurzel des Daseins eines Volkes sich festgesetzt haben und dessen eigenem Wesen sich entgegenstellen und zuwiderhandeln. Um so schärfer und härter und schwerer ist der Kampf, denn dieser besteht ja nur zum geringsten Teil im Gegeneinanderschlagen; oft weit schwieriger und langwieriger ist es, den Feind als solchen zu erspähen, ihn zur Entfaltung zu bringen, ihm gegenüber sich nichts vorzumachen, sich angriffslustig zu halten, die ständige Bereitschaft zu pflegen und zu steigern und den Angriff auf weite Sicht mit dem Ziel der völligen Vernichtunganzusetzen.“ Abteilung II, Band 36/37 of the Gesamtausgabe, pg. 90-91 in section §3 Der Spruch des Heraklit. Der Kampf als Wesen des Seienden a.)Der rest Teil des Spruches. Der Kampf als Macht der Erzeugung und Bewahrung: innerste Notwendigkeit des Seienden.


[i] Heraclitus, 53: "War is the father and the king of all; and some he has made gods and some men, some slave and some free."

[ii] Faye carefully traces his influence on the coordination of the Law Faculty, however,

[iii] At my talk on these matters at Portland State, Joe Clemens, a philosophy student and talk show producer for community radio in Portland, suggested that Zen in China (Chan Buddhism) was also linked to advice to the Emperor. I suspect he is right and there is a whole interesting theme here of Buddhist variants of the Platonic thought – counseling the one ruler, to rule wisely and perhaps not lawlessly, to be explored.

[iv] Schmitt’s and Heidegger’s view (as well as Strauss’s) is actually that of Polemarchos – that justice is helping friends and injuring enemies, in book 1 of Plato’s Republic. But the implication of that view is Thrasymschus – justice is the advantage of the stronger. Imagine Thrasymachus on steroids and one has Schmitt or Heidegger. Contra Strauss, against both Polemarchos and Thrasymachus, Socrates does pose the question: what is justice?

[v] Faye, p. 140, draws an interesting parallel between Hitler’s, Heidegger’s and Schmitt’s use of Satan to refer to jews.

[vi] In Strauss’s case, Stanley Rosen, George Anastaplo, Roger Masters, and Charles Butterworth, inter alia. Robert Goldwin, Joseph Cropsey, Avram Shulsky and perhaps Allan Bloom (more of a Straussian free agent), however, Strauss relied on politically. 

         In Heidegger’s case, neither Arendt nor Loewith nor Marcuse are thought of as Heideggerians. He worked with Jews who distinguished themselves but perhaps Heidegger furthered their distinction by way of a kind of underlying enmity. In this context, of course, Strauss was the unintentionally ironic Jew who followed Heidegger almost all the way down.

[vii] I am indebted to Faye's determined research over many years which has made Heidegger’s Nazism visible even to the New York Times Book Review. 

Note that Heidegger sounds a lot like a Likud activist in Israel talking about the Palestinians. 

[viii] Nietzsche of course opposed gutter Anti-semiterei. There are many other aspects to Nietzsche. So for that matter are there to Heidegger. But Faye definitely gets the anti-individual drift of the racial Gemeinschaft (even in Being and Time) whose authentic historicity or “destiny” is realized, as a collective matter, in the decision of the Fatherland (soon to become the Fuehrer). Heidegger sought a “repeat of World War I,” a fiercer one, in which Hitler would win (achieve Lebensraum – see Faye, pp. 142-44 – or as Schmitt named it Grossraum. See Enmity and Tyranny here. 

[viiia] Paragraph 195 of Beyond Good and Evil is as follows:

        "The Jews ‑ a people `born for slavery' as Tacitus and the whole ancient world says, `the chosen people' as they themselves say and believe ‑ the Jews achieved that miracle of inversion of values thanks to which life on earth has for a couple of millennia acquired a new and dangerous fascination ‑ their prophets fused `rich', `godless', `evil', `violent', `sensual' into one and were the first to coin the word `world' as a term of infamy. It is in this inversion of values (with which is involved the employment of the word for `poor' as a synonym of `holy' and `friend') that the significance of the Jewish people resides: with them there begins the slave revolt in morals."