Monday, January 30, 2012

Saving the land: indigenous resistance to the Enbridge Gateway Pipeline

Warner Naziel and Freda Hudson two members of the Wet'suwet'en tribe in British Columbia, came to Auraria last Thursday to speak about the Keystone XL Pipeline, temporarily stopped by Obama but still a threat to cut across the United States, and an equally great threat, the Enbridge Northern Gateway pipeline in Canada. Before, though I support the campaign, I had not heard of the latter...

Above a table of food, there were twinned photographs of the pristine wilderness, the mountains soaring above the Athabasca River, and the wreck, worsened by the sludge of tar sands, at the same place. The indigenous territory that the pipelines and the Canadian government seek to destroy is, as Glenn Morris of UCD mentions below, larger than the size of England.

Their people, Warner reported, had pursued a court case, and the Canadian supreme court had ruled in their favor. There is a declaration against the pipeline signed by 61 indigenous tribes in this territory (below).

Hearing of the covert attempts of mining companies to survey and begin to wreck the land, Warner and Freda each had to drive, on three separate occasions, with a small number of others, to block them. Confronting the Company representatives, they told them firmly to get all their equipment off two days later, and the Companies had had to do so (in one case, the workers applauded…Not everyone dreams to be an instrument of ecological destruction…).

Warner and Freda were very glad to be in Denver, and to speak before an audience of over a hundred (provided food by the one native American restaurant in Denver), mainly of native american, black and chicano students.

I talked with Freda and Warner afterwards for a while, and they told me of going to a meeting with Pacific Trails Pipeline and some bought off First Nation leaders who did not have title two the land where they were the only two to stand up. And how good the courage to do so felt...

But there are 61 tribes in the movement, defending the earth.

Each was both a quiet and fiery speaker, every word worth taking in. They began and ended with two songs (this, too, is part of indigenous cultures…). See here.

The organizers showed the film Petropolis, without sound, which contrasted the scenes of the wilderness and river with the environment desecrated by the tar sands. I just listened to the two speakers…

Warner's clan has a creation story in which a woman is the last survivor of a tribe destroyed in war. She lives in the forest for two years, but is terribly lonely. One cloudy day, she decides to take her life. She is lying on the ground, contemplating death. But the sky opens up, light comes through, and a voice from the heavens, asks her to join him, saying she will never be alone. She goes to the heavens, and has several children. But lonely for home, she brings them back, people of the sky, of the sun, to the forests...

Against all the crimes of the Canadian administration against indigenous people (the crimes of stealing and starving children among the greatest), they are strongly here. For these are the first nations, each with a sense of ancestors going back thousands of years (think of what most Americans and Canadians recall about heritage...).

Warner also described poor people today, cut off from urban jobs, who live by fishing in the one lake not polluted, hunting for moose on Wet'suwet'en lands. Both Freda and Warner told of how some waters were poisoned, some fish with two mouths. Those who catch them toss these fish aside, but often eat ones with the poisons inside…Warner is an anthropologist and ethnographer in first people studies. He spoke of a young student who has a rare form of cancer (not so rare, however, wherever tar sands production emerges). We heard of another case, fortunately cured at least for a time, from someone in the audience…

They had learned, each said, the importance of standing up for the land. The declaration below speaks of an Enbridge spill in Michigan in 2009 into the Kalamazoo River (see also Greg Palast's commentary on pipeline "safety" below). They spoke of how the companies/government were determinedly pushing the pipeline (the government is a puppet of the companies with a deal promised to the Chinese for tar sands production, what they had wanted to put the pipeline through the United States for; the proposed Keystone XL pipeline would have poisoned the Ogallala Acquifer in Nebraska, which provides water to 9 states, including Colorado; it would also have pushed climate change far beyond what is even now likely - James Hansen, the government climatologist, has said that putting the tar sands into production is “game over” for preventing New York being under water, and was among the 1500 arrested for doing civil disobedience in front of the White House).

Warner also spoke respectfully of Barack Obama for rejecting the crazed efforts of the Republicans and Hilary Clinton’s State Department for the pipeline. See the earth cries out here on the AIM protest at Metro led by Tom Poor Bear from Pine Ridge who interrupted Obama’s speech and forced him to confront the issue. But this is no permanent victory – and University of Colorado at Denver AIM, led by Scott and Tessa, also reported on a future demonstration in Commerce City, and education to prevent a renewed application for the Keystone pipeline.

Someone in the audience asked if perhaps in 400 years, Keystone-Enbridge-the Canadian government-the US government could be made to repair the damage...The person had not perhaps listened, quite. What Warner and Freda spoke to is that there will not be clean earth for two more generations without a fight (this is true of the tar sands and nuclear energy – see here). The poisoning of the earth means a rapid decline of human life. Perhaps companies can sell fancy bottled water (full of chemicals) to those who can still buy it. In Cochabamba, Bolivia several years ago, there was a fight of poor people against the privatization and rationing of water (Palast has a chapter on this in The Best Democracy Money can Buy) This will also be the century of water wars…See here. We must – the two speakers were on fire to do so – stand up for the earth.

Despite the corruption – the dimwittedness of the 1% (global warming will leave them, for a time places to go, but not really so long) in North America (even Obama knows about the climate and has done little) – a movement from below can stop this.

Warner and Freda spoke of the NGOs who had sold them out to the companies, not even told them of meetings, and about young anarchists who had come out beside them to fight against Enbridge and Keystone (it was a remarkable tribute to these anarchists and one that participants in Occupy might want to listen to…). Occupy can certainly move in this direction (along with 360 and others organizations, some of whose participants were at the meeting). But as with American wars, the time to stop the destruction is now.

Here is a note from Glenn Morris announcing the meeting:

"The American Indian Student Educational Progams & Outreach office at UC Denver is hosting two First Nations guest speakers, Warner Naziel and Freda Hudson for a Tar Sands Pipeline Awareness Project night, this Thursday, January 26th from 7-9pm. Join us for a discussion on the Canadian Tar Sands, the Northern Gateway Pipeline and the Keystone XL Pipeline."

"As most of you know, the Tar/Oil Sands Project is the largest industrial development on earth, with plans to devastate an area of indigenous peoples' territories in northern Alberta, Canada the size of England. Although the Obama administration has denied the permit for the Keystone XL Pipeline for the time being, the Canadian government has vowed to pump that same oil across First Nations' territories in Alberta and British Columbia -- destined for China and Japan via the Northern Gateway Pipeline. First Nations in Canada have pledged to stop the Northern Gateway Pipeline from crossing their territories, which implicate all of British Columbia. See their declaration: here. "

"Warner and Freda hail from Wetsuwetan, an Indigenous territory located in British Columbia. These two First Nation warriors have been fighting courageously against the Tar Sands Project and the Northern Gateway Pipeline, that is planned to cross their homeland territory. American Indian students from UC Denver protested the Keystone XL Pipeline during a campaign visit from President Obama this past fall; we decided that an information night on campus about the tar sands/pipelines was necessary."

For Immediate Release: Dec. 2, 2010

Enbridge plans dead in the water: 61 Indigenous Nations say “NO” to
pipeline in Fraser River watershed

“...this project isn't going anywhere.”

VANCOUVER (Coast Salish Territory) – Sixty-one Indigenous Nations have come together in a historic alliance to protect the Fraser River watershed and to declare their opposition to the proposed Enbridge Northern Gateway Pipeline. Signed in Williams Lake last week, and published in a full page ad in the Globe and Mail today, the “Save the Fraser Gathering of Nations” declaration is based on Indigenous law and authority, and it states:

We will not allow the proposed Enbridge Northern Gateway Pipelines, or similar Tar Sands projects, to cross our lands, territories and watersheds, or the ocean migration routes of Fraser River salmon.

The declaration is the second major First Nations declaration banning tar sands pipelines from BC this year, and it makes clear the nations see the federal review process for the project as a violation of their laws and rights under international law, including the UN Declaration on the Rights of Indigenous Peoples, which Canada signed last month.

“The Enbridge pipeline would risk an oil spill into our rivers and lands that would destroy our food supply, our livelihoods and our cultures,” said Chief Larry Nooski of Nadleh Whut’en First Nation, part of the Yinka Dene Alliance opposed to the Enbridge project. “Our laws do not permit crude oil pipelines into our territories. This project isn’t going anywhere.”

From the headwaters of the Fraser, to its mouth at the Pacific ocean, nations along the watershed say critical salmon runs would be threatened by a proposed 700,000 barrels per day of crude oil and toxic hydrocarbons crossing the top of the Fraser watershed as proposed.

“St'át'imc territories are downstream of the proposed pipeline, putting our communities at risk,” said Chief Art Adolph of Xaxli’p, a community of the St'át'imc nation whose territories cover the middle and southern parts of the Fraser watershed. “An oil spill into the Fraser River could be devastating for our people. Since time immemorial the river provides for us, and we have an obligation to protect it.”

“Oil spills from the Enbridge pipelines would be inevitable,” said Chief Jackie Thomas of Saik’uz First Nation. “That risk to our livelihoods is unacceptable. Enbridge has spills all over North America, including the big Michigan spill earlier this year. We refuse to be next.”

For more information:
Chief Larry Nooski, Nadleh Whut’en First Nation, 250-613-7102,
Chief Art Adolph, Xaxli’p First Nation – St'át'imc Nation, 250-256-4800
Chief Jackie Thomas, Saik’uz First Nation, 250-570-7392

And here is some reporting, a little speciesist though the acronym for petroleum inspection gauge invites it, from Greg Palast underlining the cover-ups - and premeditated murderousness - of oil company "safety":

The Pig in the XL Pipeline
Insider reveals concealed "error" in pipeline safety equipment that could blow away the GOP's XL pipe dream

For Firedoglake

by Greg Palast

"They threatened me. Last night I got a call and they threatened me. If I talked."

"Pig Man #2," a pipeline industry insider, had a good reason to be afraid. He was about to blow the whistle on a fraud, information that could blow away the XL Keystone Pipeline project.

His information: The software for the crucial piece of pipeline safety equipment, the "Smart PIG," has a flaw known to the industry but concealed from regulators.

The flaw allows cracks, leaks and corrosion to go undetected - and that saves the industry billions of dollars in pipe replacements. But there's a catch. Pipes with cracks and leaks can explode - and kill.

Federal law requires the oil and gas industry to run a PIG, a Pipeline Inspection Gauge, through big oil and gas pipelines. The robot porker, tethered to a GPS, beeps and boops as it rolls through, electronically squealing when it finds dangers.

But whistleblowers told us at Channel 4 Dispatches (the "60 Minutes" of Britain) that the software is deliberately calibrated to ignore or minimize deadly problems. They know because they themselves worked on the software design team.

This week, President Obama refused to issue a permit for the Keystone XL Pipeline, but invited its owner, Trans-Canada, to re-apply. The GOP has gone wild over Obama's hesitation, screeching that slowing the Canada-to-Houston pipe for a full safety review is a jobs killer.

But it's the Pipeline that's the killer. Here's what Pig Man #2 told me, on camera, his face in shadow:

When his team found the life-threatening flaw in the program, they immediately created a software patch to fix it. But then their supervisor ordered them to bury the fix and conceal the problem.

With the PIG calibrated to the danger sensitivity required by law, oil and gas companies would have to dig up, inspect and replace pipe at a cost of millions per mile. That's not what the oil companies wanted from their contractor that designed the PIG program.

The programmers' bosses took no chances. "We had to sign nondisclosure agreements." They were required to conceal "any problems of this sort or the nature of the software we worked." It could not "be made public at all. Under threat of lawsuit." Nice.

With the error left in place, he said, "People die."

Pig Man #2 was shaking a bit when he said it. On September 9, 2010, a gas pipeline exploded, incinerating 13-year-old Janessa Greig, her mom and six others.

A PIG - an honest PIG - would have caught the bad welds in the old pipe.

Trans-Canada says that Keystone XL won't contaminate the Ogallala Aquifer, the Plains states' crucial water source. Keystone's permit application boasts that we can rely on XL's "full pigging capability."

Sure. Last summer, an ExxonMobil pipeline burst and poisoned parts of the Yellowstone River - only months after it had been "pigged."

The danger of a muzzled PIG goes beyond Keystone XL. New gas fields opened by hydraulic fracking will require over 100,000 miles of new transmission pipe.

This week, Newt Gingrich called Obama's temporary block on the XL Pipeline, "stunningly stupid"; and Mitt Romney said Obama's decision threatened America's "energy independence." (Mitt, the oil is from, uh, Canada.)

But the real question is, can we trust these pigs? And not just the ones in the pipeline.

Saturday, January 28, 2012

How torturers “think”

Explicitly adopting Carl Schmitt’s arguments as American "law," Adrian Vermeule and Eric Posner, Harvard and Chicago law professors, assert thunderously in The Executive Unbound: After the Madisonian Republic, would not lead to a Hitler:

“More generally, Weimar has received too much attention in this setting. Civil libertarians invoke the shadow of Weimar to imply and occasionally say that expanding government’s powers during emergencies would produce another Hitler. It would not and if it did there is nothing civil libertarian judges could do about it.” (2011, Oxford University Press, p. 39). See here.

The less anybody knows about Weimar, the more they might swallow such sentences…

The last clause is remarkable for its a) belligerent acquiescence in a police state, for example Guantanamo, accompanied by disregard for international and American law, b) downplaying of what standing up for the law by judges and lawyers may do, either as an example or to inspire fellow citizens. Standing up for the law is doing their job as justices; acquiescing in executive tyranny is the opposite…

Scott Horton has long invoked the hero Helmuth von Moltke who gave his life to fight for law in Nazi Germany and his wife Freya below.

Vermeule and Posner broaden the trite neoconservative/political Straussian meme at the opening of the Introduction to include the Alien and Sedition Acts which they do not think wrong but “useful executive action”, not to be judged ex ante, but at most ex post facto. No one should trammel the executive, they assert, by abstract rules – read: the law; they even refuse to judge morally ex post facto (after the fact). Even Hitler wasn't bad...

These author cannot see through “the eyes” of the executive, they say acquiescently, and so the executive must be allowed to act “illegally” in crisis...But empathy, for Vermeule and Posner, is cramped. They look up, never down (they are not citizens, on an equality, with others...). They do not see through the eyes of victims, for instance those in concentration camps for Japanese-Americans which they commend or of the tortured. Instead, they strut as would-be Guantanamo or Bagram guards. They offer the circumlocution “harsh interrogations” p. 1, which is of course a Bush/New York Times propaganda or a non-American English expression - they are all clear enough on torture when America "enemies" do it - to deny the rule of law

Vermeule and Posner are but vassals to a duke (in an Ezra Pound translation of an ancient Chinese poem, there are the revealing lines: “fat as snakes the duke’s vassals/glide out to consume/what they get from the duke.”)

They disparage principled judges who care for the core of law and its root in the Magna Charta (1218) – laws with regard to the rights of each citizen, notably habeas corpus and the right not to be tortured – with the certainty that they know….

They praise a pattern in American history of tyrannical acts: for instance, the Alien and Sedition Acts, Lincoln’s abridgment of habeas corpus in the Civil War, concentration camps for Japanese Americans during World War II, and Guantanamo. They insist that after the crisis, the rule of law will be restored (this is Herbert Storing’s error in his original and subtle article on Lincoln and FDR*).

They assume that the pattern will hold (for a seventh time given their six cases…). Why?

The first part of the pattern also exists, to some extent, in the Roman republic and Weimar Germany. But the emperors and Hitler were not defeated. Some argument and historical knowledge is needed here. Vermeule and Posner tell would-be serious lawyers: “it will all be all right. In any case, mere judges can do nothing…

Though they insist on ignoring Weimar, they themselves invoke…Carl Schmitt whom they misleadingly style as an advocate of Nazism before 1933 (pp. 38-39) He was an assistant, as Todd Pierce tell us, to General Kurt von Scheicher and for authoritarianism (likened to the miracles of Jesus) as opposed to the rule of law (in turn, likened by Schmitt to the “Jews” supposedly wooden affection for law). They do not know this is the pure stuff as far as anti-semitism goes, though even they might have detected a whiff...See here and here.

One might surmise that they favor some new facsimile of Nazism themselves (not a bad bet for some of the original and most important transmitters of this doctrine like Leo Strauss - see William Altman The German Stranger - see here) or , more likely, are just sycophants of executive power and contradict themselves – abandon reasoning – to flail at the rule of law.

Even Harvey Mansfield, a leading publicist in the Wall Street Journal and the Weekly Standard, for executive power - see here and here - and a knowing student of Leo Strauss, expresses some concern that they let the cat of the bag by praising Schmitt. See his somewhat arch if sharply against democracy (the mere tyranny of the majority, Leo Strauss in Tocquevillian dress), in a New York Times review here. They do not practice, as Strauss and Mansfield do, exoteric - hidden - writing...(see Leo Strauss, Persecution and the Art of Writing).

Apparently, the first draft of this volume elevated Carl Schmitt at the expense of Madison at the outset. That much was altered in the editing...

Below are two pieces by Scott Horton on Helmeth James von Moltke, son of a leading World War I general (a reactionary one), who stood up, at the cost of his life, for the rule of law. Horton draws pointed contrasts between decent lawyers and Bush administration war criminals (of whom Vermeule and Posner are would-be accomplices). In this increasingly sordid context, we might recall what integrity, courage and decency look like.

Sunday, October 08, 2006


When Lawyers Are War Criminals

Scott Horton

To the memory of Helmuth James von Moltke

"In France, innumerable summary executions occur, even as I sit here writing. Each day certainly more than a thousand people are killed, and thousands of German men experience murder as a matter of routine. And yet all of that is child's play compared to what's going on in Poland and Russia. Can I learn about this and just sit at the table in my heated apartment and drink tea? Don't I establish my complicity simply by doing nothing? What will I say in the future, when someone asks me: and what did you do during this time?"

- Helmuth von Moltke, in a letter to his wife, Oct. 19, 1941

Talking about the Nuremberg Tribunals inevitably seems to involve "bad Germans," so I want to talk about a man who deserves to be remembered in the course of this meeting. He was more than merely a "good German;" indeed, he was a man whose powerful moral example serves as a model for all of us today, a man who represents the ethical pinnacle of our profession. And the strange thing is that he was a staff lawyer at the German defense ministry during the Second World War. His name was Helmuth von Moltke. His tenacious advocacy of the Geneva and Hague Conventions in the face of withering criticism and suspicion from the Nazi hierarchy saved the lives of thousands of civilians and prisoners, particularly on the Eastern Front and in the Balkans. It also led inextricably to his execution at the hands of the Nazis in 1945.

Disgusted by an atmosphere in which law was constantly subverted to political expedience, Moltke envisioned harsh prosecutions of politicians and lawyers who engaged in such antics as an essential purgative. In a draft dated June 14, 1943, Moltke envisioned a special international criminal tribunal to be convened at the conclusion of the Second World War for the purpose of bringing to justice those who violated the laws of war. Lest there be any doubt, it was principally the men he worked with every day in the Wehrmacht whose punishment he foresaw. In view of mounting evidence of a crime of genocide, and out of concern that international customary law failed yet to provide a medium for its punishment, he advocated an expansive posture for prosecution. "Any person who violates the essential principles of divine or natural law, of international law, or of international customary law in such a fashion that makes clear that he contemptuously disregards the binding nature of such law shall be punished," he wrote in a plan for a post-war tribunal in 1943.

This conference has turned on a great deal of discussion of Robert Jackson and his visionary role in the Nuremberg process, but it is truly remarkable that so much of Jackson's vision was commited to paper two years earlier, and its author was not only a German, but the scion of his nation's most prominent military family.

I come to the example of Moltke for another reason, namely that he very properly puts the emphasis not on the simple soldiers who invariably operate the weaponry of war, but on those who make the policies that drive their conduct. And in that process, his stern gaze falls first on the lawyers. In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said "the basic building blocks of civilization"? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?

These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system.

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

United States v. Altstoetter: Lawyers As War Criminals

Concerned about the level of resistance faced by German troops in the occupied territories, Hitler instructed Field Marshall Keitel to issue a special decree authorizing extraordinary measures pursuant to which political suspects would simply "disappear" to special detention facilities and might face summary court proceedings. The death penalty appears as the punishment most frequently contemplated. The decree, issued on the same day the Japanese attacked Pearl Harbor (December 7, 1941) and as the German drive on Moscow stalled and the Soviet counteroffensive had begun, is known as the "Night and Fog Decree" (Nacht- und Nebelerlass), a reference to the covert action it authorized. Contemporaneous documents make clear that it was motivated by the high level of casualties German soldiers were sustaining behind the front in occupied territory. Pacification of this territory was given a high priority.

A team of Justice Department lawyers worked with Keitel and his team at the German General Staff (OKW) on the drafting of the decree and further steps for its implementation. This included a series of highly particularized rules setting out how such detainees were to be treated by police, justice officials and others. The rules specified how such individuals would be permitted to make wills, issue final letters of farewell, what would be done with children born to detainees and how their death could be recorded in the registry. Other lawyers prepared parallel orders creating special secret courts and detention facilities for those interned under the Nacht- und Nebelerlass. These courts were crafted under domestic German law and thus constituted a projection of German law into the occupied territories.

These arrangements flouted the protections of the Hague Convention, specifically the right of "family honor, lives of persons" and the right "to be judged under their own laws." To the extent applied against uniformed service personnel, they also violated the Geneva Convention on Prisoners of War of 1929. However, the Justice Department lawyers advanced the view that the Hague and Geneva Conventions were inapplicable because their adversaries did not subscribe to these documents. This decree was applied brutally, and with particular force in France. A total of at least 7,000 persons were detained; a large number of them perished.

The Justice Department lawyers justified these acts as steps available to an occupying power in order to protect its troops against terrorist acts or insurgency. Further, the occupied territories could be divided, roughly, into three categories: (i) areas directly incorporated into the German State (for instance, Austria, Alsace-Lorraine, the Eupen-Malmédy region of Belgium, Danzig and portions of Poland); (ii) areas under German occupation and direct administration (such as Bohemia and Moravia); and (iii) areas under puppet régimes (such as Hungary and Slovakia). As for the first, they asserted the right to treat persons found within those territories under German law. As to the second, they claimed the right as occupier to promulgate new rules and orders, and to derive them from Germany. As to the third, they relied on the acquiescence of régimes like Vichy France and Hungary. Their positions on these points were at least colorable from a legal perspective.

The Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, "not farmers or factory workers," they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were "recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war." That is to say, they were customary international law. Further, the United States charged, this decree "would probably cause the death of human beings," grounding a charge of homicidal intent.

After trial, the two principal Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years' imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.

The Present Crisis

Between the fall of 2001 and early 2004, US Government lawyers engaged many of the same issues and took decisions very close to those taken by von Ammann and his colleagues in the German Justice Department. In particular, the Nacht- und Nebelerlass has a close cousin in the United States extraordinary rendition project on a policy plain, though we should quickly note two essential distinctions: the total throughput in human terms has been dozens, not thousands of persons, and it has not involved death sentences, though not a few persons (to be exact: 98) have died in incarceration under circumstances suggesting that torture was involved, if they were not indeed tortured to death. These lawyers adopted a mantra, namely, to quote Alberto Gonzales, that the Geneva Conventions were "quaint" and "obsolete," and did not apply to a "new kind of warfare." In so doing, they thoughtlessly moved in the same paths traversed by lawyers in Berlin sixty years earlier. Indeed, at the General Staff trial, the world public learned for the first time of the valiant struggle of Moltke when one of his memoranda was put into evidence. It pleaded in forceful terms for respect of the Geneva Convention rights of enemy soldiers, civilians and irregular combatants on the East Front, mustering a series of arguments that bear remarkable similarity to a memorandum sent by Colin Powell to President Bush sixty years later. And in the margins, in the unmistakeable pencil scrawl of Field Marshall Keitel, were found the thoughts that these rules were "quaint" and "obsolete," they reflected the "outmoded notions of chivalric warfare." This was cited as an aggravating factor justifying a sentence of death against Keitel.

The Bush Administration apparently assumed that the court system would toe the political line they had drawn. It was clearly taken by surprise when the Supreme Court, in Hamdan, knocked the legal props out from under the Administration's detainee policy, validating the positions taken by the senior legal officers of the nation's uniformed military services and the State Department, which had opposed the Administration on this grounds. The Hamdan decision presents a straight-forward interpretation of the Geneva Conventions, finding that Common Article 3 was applicable to detainees in the War on Terror who did not qualify for prisoner of war protections. This position is also identical to the view embraced by the organized bar in the United States in 2003, in a series of reports that warned the Administration that its legal reasoning was both radical and isolated. But the most striking aspect of the Court's opinion was its forceful and repeated references to the War Crimes Act of 1996. There is little doubt that the Court was concerned that the Administration's policies were not just inconsistent with Geneva, but in fact potentially criminal under American law.

The Administration's response was to propose the Military Commissions Act of 2006, the thrust of which was to attempt to amend the War Crimes Act into oblivion and to make the amendment retroactive. When it became clear that the Administration could not muster a majority for this legislation in the Senate, the Administration entered into a compromise with Senators McCain, Warner and Graham, who had specifically flagged and objected to this effort.

I want to ask today: What has this legislation done to the legacy of Nuremberg? Has it granted impunity to persons who committed war crimes? Is that impunity effective, and might it have unintended consequences?

At Nuremberg, Justice Jackson promised that this process would not be "victor's justice." He said "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well." Powerful words. A moral compact. Did the Bush Administration seek to repudiate Jackson's commitment? This can be answered quite clearly: yes. But did they succeed? That is less clear. But before getting to that point, I want to deconstruct some myths that the Administration has generated to obscure their entire process.

The Camouflage

In announcing the Military Commissions Act, President Bush insisted that he needed the legislation to lay to rest the concerns of 400-500 professional interrogators. These loyal citizens were, he said, concerned that the Supreme Court in Hamdan had called into question the legality of what he called "the Program," a set of "alternative interrogation procedures" which were developed and implemented by his Administrations. This was perhaps the most fact-free speech Bush has ever delivered. But it contained three fundamental misrepresentations.

First, he suggested that the interrogators faced the prospect of prosecution under the War Crimes Act. In fact, as a matter of long-established policy, US service personnel are prosecuted under the Uniform Code of Military Justice and not the War Crimes Act. The CIA personnel and private contractors involved in this process likewise faced no prosecution risk under the WCA because of a memorandum of agreement between the Department of Justice, Department of Defense and CIA done by Michael Chertoff when he headed the Criminal Division. Chertoff undertook that as long as a set of scheduled techniques were used, which are described on an appended memorandum he prepared with Alice Fisher, no prosecutions would be undertaken for death, dismemberment or assaults. Consequently, only one group feared prosecution under the War Crimes Act, and that is the policy makers: John Yoo, Jay Bybee, Alberto Gonzales, David Addington, Jim Haynes and a host of others. This measure was pushed at their initiative, and for their benefit. This is the first dark secret of this measure.

Second, Bush revealed that there was a new "Program," of "extraordinary procedures" that he, personally, had been advised of and had approved. The Program, he complained, had been stopped as a result of the decision in Hamdan. This is part of a general political strategy of spotlighting judges and accusing them of politics when they are bravely enforcing the law. But the facts here are different: the Program was always against the law, and the US Army's own interrogation manuals stated just that. As the current issue of Time reports, and I have corroborated from my own sources, the use of these techniques was suspended when even the President's own lawyers, and I am talking about political appointees in the DOJ as well as the interim general counsel of the CIA, concluded that it was unlawful. They were propelled to this conclusion not by Hamdan, but a half year earlier, by the passage of the McCain Amendment, which banned cruel, inhuman and degrading treatment as well as torture. Placing the blame on the Court was the second lie.

Third - and this is the darkest lie of all because it impunes the integrity of American service personnel – Bush stated that the reach for highly coercive new techniques came at the insistence of the interrogators themselves. But in fact, we now know from an array of leaked documents that these techniques were rammed down their throats, often over courageous opposition, both within the CIA and the uniformed services. When the career professionals refused, DOJ lawyers were enlisted, led by figures like Alberto Gonzales and John Yoo, to override their objections by issuing formal opinions backing orders from the White House to use abusive techniques. Consequently, when we allocate moral and legal culpability for the deaths, torment and scarred lives that this process has produced, it is the torture memo writers who surely deserve the biggest blame. It was their professional duty to say "no," but instead when asked whether they would give a green light to war crimes, they responded by doing their master's unthinking bidding.


The Military Commissions Act seeks to accomplish its objective of granting impunity through three tools. First, it redefines "war crimes" into a series of specifically chargeable offenses, of which two, "torture" and "cruel treatment" are most important for these purposes. Second, it makes the restatement of these crimes retroactive to September 11, 2001. Consequently, a series of criminal offenses under the War Crimes Act will disappear retroactively when the Act goes into force. Third, it strips courts of jurisdiction over habeas corpus petitions and forbids litigants to cite the Geneva Conventions and related international and foreign law in those courts, in an effort to blind the courts to the law which the Constitution obligates them to enforce.

The initial draft makes clear that the White House sought impunity for crimes arising as a result of the use of three techniques that the Bush Administration (and, from the remarkable wording of one of Bush's press conferences, Bush himself) authorized and which constitute grave breaches under Common Article 3: waterboarding, long-time standing (or as it was called by its NKVD inventors, in Russian: stoika) and hypothermia or cold cell. The use of these techniques is a criminal act. The purported authorization of these techniques is a criminal act. The larger effort to employ them constitutes a joint criminal enterprise.

The Act does not alter the fact that these practices are outlawed by Common Article 3. However, by creating a series of specifically chargeable crimes that weave and bob through the historical offenses, the drafters apparently seek to make it more difficult to prosecute these offenses in US courts.

At the core, we have this question: are waterboarding, hypothermia and long-time standing "cruel treatment" as the crime is identified in the Act? And on this point, the legislation's sponsors – Senators Warner, McCain and Graham, say "yes," while the White House says "no." A fair reading would say that the Act creates ambiguity where none previously existed. However, a close comparison of the White House's original proposal with the compromise version that resulted clearly undermines the White House's claims, for the changes seem clearly keyed to forbidding the questioned tactics.

So where do we go from here? Unfortunately its track record up to this point suggests that the Administration will exploit any ambiguity to work its will. Consequently, the burden will shortly fall on Administration lawyers, who will be challenged to pick their path: will it be that of Moltke and Jackson, or will they adhere to the twisted course of Addington, Yoo and Gonzales? That's a stark choice, and one that entails absolute moral clarity.

If the consequence of the Act is to immunize those who authorized these techniques from prosecution, is that lawful? The US position, articulated most recently in connection with Yugoslavia's efforts to immunize its military leaders, was that any such act would only provide evidence of a broader conspiracy to commit war crimes. Consequently, the grant of immunity is ineffective in the contemplation of the international community; moreover, those involved in purporting to grant immunity may thereby be roped into a charged joint criminal enterprise.

Clearly there will be no prosecutions in the US, certainly not under Attorney General Alberto Gonzales, who would figure near the top of anyone's list of criminal conspirators and whose name has already appeared in a criminal indictment relating to Abu Ghraib. But what about universal jurisdiction processes? Spain, France, Belgium, Germany, Switzerland and Italy all have universal jurisdiction statutes. Germany has already entertained a complaint against Rumsfeld, Tenet and others over detainee abuse questions. That complaint was dismissed without prejudice by the German Federal Prosecutor. In his opinion, the Federal Prosecutor stated that the first predicate of the statute had not been met since there was no showing that a prosecution for the crimes shown in the home nation of the defendants would not occur. Considering the political and military position of the United States, the invocation of a universal jurisdiction statute against sitting officers of the government has to be viewed as more than an uphill task. But I think passage of the Act has just made it a whole lot easier.


The legacy of Nuremberg and the solemn undertaking that Justice Jackson gave for the United States at the opening session, are under assault by the Bush Administration, which has embraced a radical world view that rests on a cult of power and a disdain for law. And fundamentally, this Administration has a notorious allergy against accountability in any form. But this conference is evidence that the spirit of Nuremberg has not been extinguished in the United States. And indeed, the flickering candle that was lit at Nuremberg has developed into principles which form the heart of the international legal order. We bear witness to those principles with this conference.

Remarks delivered at the ASIL Centennial Conference on The Nuremberg War Crimes Trial, Bowling Green, OH, Oct. 7, 2006

Posted 4:10 PM by Scott Horton [link]

January 11, 11:40 AM, 2010 · No Comment · Previous · Next

Remembering Freya and Helmuth James von Moltke

By Scott Horton

This weekend we learned that Freya von Moltke died at the beginning of the year at her home in Norwich, Vermont. A lion of the resistance to Hitler and the wife of its best known leader, Helmuth James von Moltke, she was 98. The Times reports:

“He put the question to me explicitly — ‘The time is coming when something must be done,’ ” Freya von Moltke said. “ ‘I would like to have a hand in it, but I can only do so if you join in too,’ and I said, ‘Yes, it’s worth it.’ ” So, with a wife’s assent, began a famous challenge to Hitler. At the height of the Nazi victories, Count Helmuth James von Moltke invited about two dozen foes of Nazism, many of them aristocrats like himself, to imagine a new, better postwar Germany. For him, his wife’s participation was essential, as she remembered the conversation in “Courageous Hearts: Women and the Anti-Hitler Plot of 1944,” a 1997 book by Dorothee von Meding.

Moltke’s correspondence with his wife, published as Letters to Freya, constitutes, along with Anne Frank’s Diary, Primo Levi’s Se questo è un uomo, and a handful of other books, one of the great moral documents to emerge from World War II. In his letters, Moltke, the scion of Germany’s greatest military family, documents the mentality of war—what he called “cowardice, servility and mass-psychosis”–and how it undermined the moral essence of men and women, converting them to “machines with a particular function in a process.” Moltke was no pacifist, but he was a firm believer in international law and the laws of war as essential tools to protect the innocent and soften the harms of warfare. The processes he so skillfully observed can be found in some measure in every society enmeshed in war, not least of all in our own.

Today, January 11, marks the fifty-fifth anniversary of the death sentence that concluded his trial by the infamous Volksgericht for his courageous actions against the Hitler regime.

*Storing, “The Presidency and the Constitution,” in Toward a More Perfect Union, ed. Herbert Storing and Joseph Bessette, (American Enterprise Institute Press, 1995). A student and, in this respect, inspired by Leo Strauss, Storing learned the examples from the Chicago constitutional law professor C. Hermann Pritchett. In Storing's essay for the American Enterprise Institute, these ideas were not yet the awful mantra that neo-con talking heads have made them.

Wednesday, January 25, 2012

Carl Schmitt and Guantanamo at 10: Todd Pierce, a Judge Advocate General officer, speaks out

Will Altman sent me this striking piece from Todd Pierce, a Guantanamo defense lawyer in the Pentagon* from the National Law Journal below. It tracks the introduction and dangerous near triumph of Carl Schmitt’s doctrine stated in the first sentence of his 1923 Political Theology: “he is sovereign who makes the decision in the state of the exception” in the United States at the expense of the separation and balance of powers in the Constitution.

Pierce highlights a 2010 book by Eric Posner (Chicago) and Adrian Vermeule (Harvard) – The Executive Unbound: After the Madisonian Republic, Oxford Press - which echoes and embroiders this doctrine. Vermeule and Posner use the aim of fighting abroad – and Guantanamo – to advance the “legal,” that is authoritarian and anti-Constitutional suppression of dissent here. As Vermeule put it on Balkinization blog,

“We envision the Constitution in 2020 as a plebiscitary, president-centered electoral democracy in which Congress and the courts have been reduced to marginal actors, who carp from the sidelines but for the most part end up deferring to executive power, if only because the executive is the least dysfunctional branch.”

As I stress in Must Global Politics Constrain Democracy?, executive power – put crudely, “Mussolini makes the trains run on time” in the 1930s pro-fascist colloquialization of the executive as "the least dysfunctional branch" - and the Posner-Vermeule apology for it is an example of the anti-democratic feedback of international politics: that aggressions abroad lead to abridgments of the Bill of Rights as well as tyranny at home.

For instance, the Iraq occupation, now lessened (the US has mainly Xe Corporation mercenaries "on the ground"), and the Afghanistan one, as well as the drone war in Pakistan among others, violating international law (aggression, torture, though the latter was limited by Obama who, however, still retains indefinite detention and its symbol, the colonial – seized in Cuba in the war of 1898 – “non”-US territory of Guantanamo), is today coming home to roost.

For the echo of these aggressions, as I stressed in "New Institutions for Peace and Democracy" (in Sir Nicholas Kiddrie, Sir Ronald. Mancham and H.E. Carazo Odio, eds., The Future of Peace in the Twenty-First Century, 2002), is the Patriot Act under Bush, and today, the assertion of a doctrine that the President can murder an American citizen – an “enemy” – far from the field of battle with no judicial proceeding (Anwar Awlaki, who at least arguably was an enemy; his 16 year old son, as plain and grim a war crime and an ordinary American crime as it gets), as well as the new National Defense Authorization Act, which includes an infamous provision, passed by even the Democratic Senate along with the more open authoritarians, that the President can arbitrarily detain Americans without trial. See Glenn Greenwald Monday on the murder of a "former" British citizen, Bilal El-berjawi, by an American drone here.

Pierce puts what I have named the idea of anti-democratic feedback fiercely:

“As evident in Yoo and Delahunty's legal memos asserting unitary executive authority, the legal theory underpinning Guantánamo and the military commissions were an assault upon the structure of our form of constitutional government; lawfare. It was not the inevitable conclusion required by the Sept. 11 attacks, but the exploitation of a tragedy to import a foreign legal ideology, a legal bacillus, into our legal system.”

As Pierce also indicates, Harvey Mansfield, the Harvard follower of Leo Strauss, has advocated these tyrannical doctrines in the Wall Street Journal (with the neo-con proviso – in Mansfield’s case, mere exoteric writing – that of course the Constitution will be restored once the trouble is over just as it has been in the past. See here and here. But why should we think so? When tyranny comes (when the Roman Republic was overthrown, when Hitler was in power), was there “inevitably” such a movement back?.

Lacking political sophistication, Posner and Vermeule wave away worries about Weimar and the Constitution (see especially pp. 38-39 which I will comment on in another post). But to say the least, one needs an honest assessment of what it means to abandon freedom for Americans and decency toward prisoners of war. Pierce, whose father was a prisoner of war during World War II, speaks movingly of these issues.

“I will admit a particular sensitivity to the enforcement of the Geneva Conventions as my father, along with thousands of other American and Philippine prisoners of war, survived the Bataan Death March. This was despite the best efforts of soldiers who set aside the Geneva Convention of 1929 because of their oath of allegiance to the Japanese emperor. Following that war, my father's former captors and their legal advisers were put on trial and convicted of war crimes, including waterboarding and punishing prisoners without fair trials, as required under the 1929 Geneva Convention. This treaty was replaced by the Four Geneva Conventions of 1949 due to the mistreatment of prisoners like my father. “

For the Wall Street Journal, Mansfield invokes Aristotle’s notion of the rule of the best man (Bush, in Mansfield’s patronizing idiom) from book 3 of the Politics.** Who would have the audacity to claim to rule over Zeus, Aristotle says…But, once again, does Zeus give it up? Here is the use of political "philosophy" to sanction tyranny.

In fact, the transmitting connection of Schmitt to Bush, Cheney, Posner, Vermeule, and Mansfield, inter alia, in America is the scholarly and political activity of Leo Strauss, on whose doctoral committee Schmitt served, and who recommended Strauss for a Fulbright in 1932 by which Strauss emigrated to England and then the United States. Strauss’s 1933 letter to Karl Loewith defends the “principles of the Right – fascist, authoritarian, imperial," against the "childish and ridiculous imprescriptible rights of man” as “the only dignified basis on which to oppose the mean nonentity (meskine Unwesen).” For a debate on the significance of the letter which I organized at the American Political Science Association in 2007, see here; for Scott Horton’s translation see here.

Since Strauss was a Jew and a “political Zionist” with a fascist orientation (he admired Mussolini and defended Blau-Weiss, a movement led by Walter Moses and modeled on Mussolini – See William Altman, The German Stranger, Lexington Books 2011, ch. 2 , here and here - it is common sense to imagine that he thought the Right could provide an alternative to Hitler (my friend Peter Minowitz makes this mistake in Straussophobia, pp. 154-63; I was involved in Scott Horton’s fine translation of the letter and made the same mistake initially as did the first translator Eugene Shepherd). But Michael Zank was responsible for the right translation: meskine refers often to Shylock and Fagin in Italian and French and Strauss invoked the Nietzschean thought - it is an aspect of anti-semitism that also comes from Nietzsche, however much he opposed gutter anti-semitism - that Jewish slaves transformed morality into something resentful and slavish and that this extends subtly and consciously – as a Jewish trick – through Christianity, democracy, socialism and communism to the deteriorated “last men.” However much one may otherwise admire and learn from Nietzsche, the direct connection of this view to fascism and Nazism – in, for example, Heidegger, see here and here – and Strauss and those among his American followers who despise “the last men,” is worth taking in.

In a June 23, 1935 letter to Loewith, Strauss emphasizes that Nietzsche had long "ruled and enchanted him (beherrscht under entzaubert) him" and that he had believed every word of Nietzsche’s “that he understood” (Strauss, Gesammelte Schriften, 3:648-50). In 1929, however, he would trade Nietzsche for Heidegger (see Altman, ch. 3), but he retained this central idea. Thus, in Strauss's 1930 “Religioese Lage der Gegenwart” [“Religious Situation of the Present”], he despises the prophets, with Nietzsche, and stands with the kings.

“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."

"...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.” (Gesammelte Schriften 2:389; trans. Michael Zank).”

These thoughts underlie his phrase about the “meskine Unwesen,” the usurious or Jewish reality which needs to be destroyed, in the 1933 letter.

In the first section of the Genealogy of Morals, this connection of the inversion of values, slavery, Jewishness, Christianity, democracy, socialism and communism is startling. Nietzsche repeatedly refers to the impotence and vengefulness of this view, its stench (he repeats the mantra about the smell) in the smallness of what he calls in Thus Spoke Zarathustra/Also Sprach Zarathustra, “the last men” who huddle together and blink . He idealizes the warrior as much as Schmitt (The Concept of the Political/Der Begriff des Politischen) or Strauss - see his Remarks (Anmerkungen) on Schmitt’s essay, a refinement of it to the Right.

One might even say, of the transformed master morality that Nietzsche seems to endorse and the Uebermensch, the solitary dancer who sees the stars and affirms his existence (eternal recurrence) that it has, in this regard, some element of projection in it. In any case, the genocide against Jews and others which the ideas of slave morality and the last men helped spawn exemplifies accusing others of one's own crimes...Whatever fascists dementedly stigmatized Jews and others for, they in life exceeded...

Here is Nietzsche from the first section of Genealogy of Morals/Zur Genealogie der Moral:

Paragraph vii

"The greatest haters in history - but also the most intelligent haters - have been priests. Beside the brilliance of priestly vengeance all other brilliance fades. Human history would be a dull and stupid thing without the intelligence furnished by its impotents. Let us begin with the most striking example. Whatever else has been done to damage the powerful and great of this earth seems trivial compared with what the Jews have done, that priestly people who succeeded in avenging themselves on their enemies and oppressors by radically inverting all their values, that is, by an act of the most spiritual vengeance."

"We know who has fallen heir to this Jewish inversion of values…In reference to the grand and unspeakably disastrous initiative that the Jews have launched by this most radical of all declarations of war, I wish to repeat a statement I made in a different context (Beyond Good and Evil), to wit, that it was the Jews who started the slave revolt in morals; a revolt with two millennia of history behind it, which we have lost sight of today simply because it has triumphed so completely."

Paragraph viii

“You find that difficult to understand? You have no eyes for something that took two millennia to prevail?....There is nothing strange about this: all long developments are difficult to see in the round. From the tree trunk of Jewish vengeance and hatred - the deepest and sublimest hatred in human history, since it gave birth to ideals and a new set of values - grew a branch that was equally unique: a new love [Christianity]...But let no one surmise that this love represented a denial of the thirst for vengeance, that it contravened Jewish hatred. Exactly the opposite...Has not Israel, precisely through the detour of this 'redeemer,' this seeming antagonist and destroyer of Israel, reached the final goal of its sublime vindictiveness? Was it not a necessary feature of a truly brilliant politics of vengeance, a far-sighted, subterranean, slowly and carefully planned vengeance [in these sentences, Nietzsche for European fascists, makes the Protocols of the Elders of Zion look like pikers...], that Israel had to deny its true instrument publicly and nail him to the cross like a mortal enemy so that ‘the whole world’ (meaning all the enemies of Israel) might naively swallow the bait...What could equal in debilitating, narcotic power, the symbol of the ‘holy cross,’ the ghastly paradox of a crucified god...One thing is certain that in this sign Israel has by now triumphed over all other nobler values.”

Paragraph ix

“But what is all this talk about nobler values?" Let us face facts: the people have triumphed - or the slaves, the mob, the herd, whatever you wish to call them - and if the Jews brought it about, then no nation ever had a more universal mission on the earth...I don't deny that this triumph might be looked upon as a kind of blood poisoning, since it has resulted in a mingling of races [Nietzsche is metaphorical here, but ordinary Nazis and other anti-semites read him literally] but there can be no doubt that the intoxication has succeeded. The ' redemption' of the human race (from the lords, that is), is well under way; everything is rapidly becoming Judaized [Verjudung is a key word for Strauss, what the last men are the result of - see Altman, pp. 263-64 ], Christianized or mob-ized - the word makes no difference. The progress of this poison throughout the body of mankind cannot be stayed."

paragraph x

"The slave revolt in morals begins by rancor turning creative and giving birth to values - the rancor of human beings who deprived of a direct outlet of action compensate by an imaginary vengeance. All truly noble morality grows out of triumphant self-affirmation. Slave ethics on the other hand begins by saying no to an outside, an “other,” a non-self, and that no is its creative act. This reversal of direction of the evaluating look, this invariable outward instead of inward, is a fundamental feature of rancor.”

"The 'wellborn' really felt that they were also the 'happy.' They did not have to construct their happiness factitiously by looking at their enemies as all rancorous men are wont to do...All this stands in utter contrast to what is called happiness among the impotent and oppressed who are full of bottled up aggressions. Their happiness is purely passive and takes the form of drugged tranquility, stretching and yawning, peace, 'sabbath' emotional slackness.. ...[the rancorous person's] soul squints, his mind loves hide-outs, secret paths, and back doors; everything that is hidden seems to him his own world, his security, his comfort; he is an expert in silence, in long memory, in waiting...[again, note the consonance with ordinary anti-semitism, which this revs up to a very high pitch]...A race of such men will, in the end, inevitably be cleverer than a race of aristocrats.”

Paragraph xi

“The exact opposite is true of the noble-minded who spontaneously creates the notion good and later derives from it the conception of the bad. How ill-matched these concepts look, placed side by side, the bad of noble origin and the evil that has risen out of the cauldron of unquenchable hatred!...Deep within all these noble races there lurks the beast of prey, bent on spoil and conquest. This hidden urge has to be satisfied from time to time, the beast let loose in the wilderness [how many instigators/participants in Kristallnacht, had once upon a time, read this passage?]. This goes as well for the Roman [Strauss’s favorites – see the 1933 letter to Loewith], Arabian, German, Japanese nobility as for the Homeric heroes and the Scandinavian vikings.”

"These carriers of the leveling and retributive instincts, these descendants of every European and extra-European slavedom, and especially of the pre-Aryan [Nietzsche is not here courting misunderstand; it is his understanding] populations, represent human retrogression most flagrantly. such 'instruments of culture' are a disgrace to man and might make one suspicious of culture altogether. One might be justified in fearing the wild beast lurking within all noble races and in being on one's guard against it, but who would not a thousand times prefer fear when it is accompanied with admiration to security accompanied by the loathsome sight of perversion, dwarfishness, degeneracy [recall that Strauss agreed with "every word of Nietzsche...that I understood" - these are not hard...]? And is not the latter our predicament today? What accounts for our repugnance to man - for there is no question that he makes us suffer? Certainly not our fears of him, rather the fact that there is no longer anything to be feared from him; that the vermin 'man' occupies the entire stage [again, a proto-Nazi phrase...]; that tame, hopelessly mediocre, and savorless, he considers himself the apex of historical evolution; and not entirely without justice, since he is still somewhat removed from the mass of sickly and effete creatures whom Europe is beginning to stink of today."

Paragraph xii:

“Here I want to give vent to a sigh and a last hope. Exactly what is it that I, especially, find intolerable, that I am unable to cope with; that asphyxiates me? a bad smell. The smell of failure, of a soul that has gone stale. “ He elaborates this revulsion in paragraphs xii, xiii and especially xiv.

Heidegger, Strauss and other European fascists did not misunderstand this theme of Nietzsche; quite the contrary, in this respect, Nietzsche founds European fascism and licenses (not, in extenuation, that he could foresee this) its massacres of innocents. ****

Nietzsche was also a brilliant psychologist and an often magnificent writer; nonetheless, his influential idea of master “morality” is sordid, and if enacted, monstrous. The idea that a great soul, a master, relies on millions of slaves and sheds their lives to flourish, like the parasitic vine sipo matador in the sun high above the Malaysian forest (Jenseits Gut und Bose – Beyond Good and Evil, paragraph 258) denies the value of each human life. The sacrifice of millions for the advancement of the few is mass murder, not a moral point of view (hilariously, Strauss repeatedly refers to “the young nihilists” standpoint – his own – in his 1941 lecture, never given at New School, as “moral” and “decent”…(see Altman, ch. 6).

But defense of at least the life of each human is the core of a decent response to Aristotle’s core question: what is a good life for humans? Life is not yet a good life, and moderns have many apt differences with Aristotle (see my Democratic Individuality, ch 1), but the idea that there is no integrity to ethics, that mass murder and exploitation are part of a “moral” point of view, that ethics is just subjective or “phenomenological” and thus, whatever one happens to believe (“Himmler was a decent man…”), is incoherent. Following Nietzsche, this claim confuses an interesting sociological and etymological point - that there was a different kind of ethic in aristocratic times in the ancient world and that this has been replaced a new one now assumed to be general - with a reasonable, ethical examination of which of these two “ethics,” if either, is in fact decent for human beings. Taken at face value, it is evil (mass murder of the last men whose lives are worthless – wertlos – in the phrase of Nazi doctors) or in Nietzsche’s case, an instigation to it... ******

Enacting this confusion, existentialists starting with Heidegger tend to take Nietzsche seriously on this point about ethics, even Sartre and his American followers like Robert Solomon (in a series on existentialism on the web, Solomon offers a lecture on Genealogy of Morals which entirely empathizes with Nietzsche’s scorn for the idea that the “great” exploit the “weak,” and suggests that what we mean by morality is but the idea of the weak, the impotent, those who merely react to the master’s initiative, and, thus, forgetting himself completely, that there is no serious moral objection to slavery…

But is there no moral objection to holding a man or woman in servitude for a lifetime, tossing her life away on a whim? No argument that a system that rules out slavery is superior to that of slave-owners? See my Democratic Individuality, ch. 1.

For Heidegger and other fascists, including Strauss and many of his political followers (Werner Dannhauser, for example), refer routinely to the “last men” who are our fellow citizens and us, and ostensibly need, for the sake of “seriousness” in life – war and the preparation for war – to be dispensed with.*******

As Occupy shows, they mistake the actual and potential fortitude and fierceness of the nonviolent who organize a movement to stop them.

The idea that it would be good to get rid of the last men (see the last sentences of Strauss’s "Restatement" on On Tyranny******** ) is simply false and if taken seriously, monstrous. Even Altman (who is a Platonist), mistakenly takes Nietzsche to have a serious argument about ethics whereas instead, he has an interesting sociology or phenomenology of morals coupled with a psychology which sometimes identifies moralisms (people who suffer oppression are also sometimes resentful). But his claim, as it were, that apartheid is not injustice, that blacks merely “resented” it, or that Desmond Tutu and Nelson Mandela were “steeped in resentment” disintegrates with the example.

Tutu and Mandela are rather models for political healing, once the injustice was ended, and provide a far deeper understanding of the grain of truth in Nietzsche’s thought about eternal recurrence than Nietzche himself or any of his followers…See Tutu, No future without forgiveness.

The Guantánamo facility at 10: an assault on our constitutional government

Todd E. Pierce

The National Law Journal

January 10, 2012

The 10th anniversary of the opening of Guantánamo Bay, Cuba, as a detention facility and the diversion of terrorism prosecutions into a new military commission system is now upon us. Consequently, I thought I would take this opportunity to briefly explain why I, an Army Reserve Judge Advocate General officer with more than 30 years of active and reserve military service, would volunteer as defense counsel for prisoners being held there.

I might add that I consider myself to be a conservative. In the United States of America, that means to conserve the legal order that this nation was founded upon, the Constitution. In fact, as a member of the military, I took an oath to defend the Constitution against all enemies, foreign and domestic. I did not take an oath of allegiance to the "leader," or to the "state," as required in some other nations. Thus, it came as something of a shock to me when Alberto Gonzalez, John Yoo and Robert Delahunty began issuing legal opinions that the Geneva Conventions, a treaty incorporated into our law, were quaint and did not apply, or that the president could, at his or her sole discretion, suspend them.

I will admit a particular sensitivity to the enforcement of the Geneva Conventions as my father, along with thousands of other American and Philippine prisoners of war, survived the Bataan Death March. This was despite the best efforts of soldiers who set aside the Geneva Convention of 1929 because of their oath of allegiance to the Japanese emperor. Following that war, my father's former captors and their legal advisers were put on trial and convicted of war crimes, including waterboarding and punishing prisoners without fair trials, as required under the 1929 Geneva Convention. This treaty was replaced by the Four Geneva Conventions of 1949 due to the mistreatment of prisoners like my father.

Back in 2001 and 2002, when these legal opinions were being issued, astute critics immediately recognized that these opinions were regurgitated leftovers of President Richard Nixon's belief that if the president did something, it could not be illegal — the dictator's prerogative. But this crude anti-American notion had been refined into the "unitary executive theory." Vice President Richard Cheney seemed to take credit for it. But more astute commentators noted that these ideas were actually legal theories expounded by Carl Schmitt, the Nazi "Crown Jurist" of the 1930s. But that seemed a little extreme, or at least bad manners, to point out.

Once the unitary-executive theory began to gain credibility, other advocates of this form of government came out of the shadows, perhaps from "the dark side." One was Harvard Professor Harvey Mansfield in The Wall Street Journal in 2007, who opined about the benefits of "one man rule." But it remained to two law professors, dedicated to the study of arcane legal texts, Adrian Vermeule of Harvard Law School and Eric Posner of the University of Chicago Law School, to openly resurrect Schmitt's authoritarian legal ideology. Or, as they put it, "political theorists interested in emergency powers, and some academic lawyers as well, are much taken with Schmitt; nearly every discussion of emergencies pores over the canonical texts yet again."

In fairness to Vermeule and Posner, leaving them to pore over the Nazi's canonical texts, it should be remembered that Schmitt was not a founder of the Nazi movement. Schmitt only joined the Nazi party when it triumphed over its rival elements in the German military establishment. Schmitt had been legal adviser to those rivals, particularly General Kurt von Schleicher. But what should equally be remembered is that this military faction was seeking to impose its own brand of militaristic dictatorship on Germany, along with an expansionistic foreign policy. These German generals aspired to the form of governance most recently practiced by the dictator Hosni Mubarak and the Egyptian Supreme Council of the Armed Forces.

Schmitt's writings consistently were an apologia for dictatorship and centralized power, whether under military dictatorship of the German High Command or under the Nazis, having further developed his ideas from his book, Die Diktatur. These ideas culminated in 1934, when he justified the murders following the "Night of the Long Knives" as the "highest form of administrative law." Most odiously, he legitimated the authority of Hitler afterward with a paean translated in English as "The Leader Defends the Law."

In Terror in the Balance, Posner and Vermeule argued that the threat of terrorism constitutes a state of emergency necessitating the suspension of our Constitution. Consequently, "Constitutional rights should be relaxed so that the executive can move forcefully against the threat. If dissent weakens resolve, then dissent should be curtailed. If domestic security is at risk, then intrusive searches should be tolerated." Posner and Vermeule followed this in 2010 withThe Executive Unbound: After the Madisonian Republic. Cribbed from Schmitt's Legality and Legitimacy, it seeks to legitimize the administrative state of the sort Schmitt worked to create. Any concern with this centralization of power in our system is dismissed as "tyrannophobia." Evidently, a mental disorder that our founders were afflicted with. As in Schmitt's "dual state," they seek to move us toward a constitutional breakdown through the creation of an administrative state under the exclusive control of the executive, "the Extraordinary Lawgiver" in Schmitt's terminology. Or as Posner and Vermeule ask and answer: "What comes after the Madisonian regime of liberal legalism and the separation of powers? Our answer is a new political order in which government is centered on the executive."

Why does all of this matter? In part, because constitutions and constitutional ideas matter. As evident in Yoo and Delahunty's legal memos asserting unitary executive authority, the legal theory underpinning Guantánamo and the military commissions were an assault upon the structure of our form of constitutional government; lawfare. It was not the inevitable conclusion required by the Sept. 11 attacks, but the exploitation of a tragedy to import a foreign legal ideology, a legal bacillus, into our legal system.

But it matters also because on this 10th anniversary, Guantánamo and the military commissions are metastasizing into our whole legal system. As the French war against the anti-colonialist insurgents of Algeria highlighted, the growing disrespect for "legal niceties" would come to be applied in France itself against political adversaries. Could that happen here? Posner and Vermeule suggest that dissent to policy may need to be controlled, that is, free speech curtailed. Putting aside the potential for misuse against political enemies, is that even desirable for national security? Our allowance of dissent led to our withdrawal from the Vietnam War before the collapse of our economy which, with hindsight, few question any more. Contrast that with the Soviet Union's defeat and total collapse resulting from its war in Afghanistan, purely at the insistence of the Communist leadership.

We have used the vague and overbroad charge of "material support for terrorism" as cause to investigate anti-war groups in Chicago and Minneapolis, predictably chilling speech and dissent. Critics have suggested that recent legislation passed would now require the military to detain such dissidents. Or what about gun store owners, gun manufacturers and the National Rifle Association, all of whom could be accused of having a hand directly or through propaganda in providing firearms downstream to drug cartels in Mexico, alleged to have ties with Mideast terrorist groups? Military detention for them?

We must ask ourselves, because we are passing this nation on to our children and their children: Were the authors of the American Constitution wrong or suffering from a mental disorder (tyrannophobia as described) in believing that blind faith was not sufficient as a bulwark against incompetence, if not tyranny? My father and my uncles, along with the rest of the Greatest Generation, did not think so when they fought against the political ideas of Carl Schmitt in World War II. I think Schmitt's ideas are still worth fighting against today.

Todd E. Pierce is a major in the U.S. Army and has been assigned to the Office of the Chief Defense Counsel since 2008. The views expressed are solely those of the author and do not reflect the official policy or position of the Department of Defense or the U.S. government.

· * I have previously noted the role of Sam Madison, another Pentagon defense attorneys fighting for law. Many of these lawyers really have put themselves on the front line of fighting of Anglo-American justice against the emerging police state, exemplified in the legal black hole of Guantanamo…

**Leo Strauss has a far sharper depiction in his lectures on Aristotle which I tracked, with the help of Mike Goldfield, in "Do Philosophers Counsel Tyrants?," Constellations, March, 2009 here. Finding this hidden message is the source of Heidegger’s and Strauss's reactionary misinterpretation of Plato: that the regimes that decline from philosopher king to tyrant must be made “perfect and a circle” (kuklos), in Aristotle’s words, by a tyrant of a certain kind becoming a philosopher-king.

***See Strauss, "Introduction to [Heideggeriian] Existentialism” and Altman’s instructive ch. 4.

*****The psychology is, sadly, not a feature which influences, for instance, Foucault or Strauss or Heidegger, but one which shook Freud who was superstitious about reading Nietzsche because he was afraid he would find all of his insights already named…

******That Fred was personally an admirable character himself as well as a magnificent writer is true. That these facts rule out the hideous political impact of his views in Europe is false

*******Altman pursues the theme of how Strauss and Heidegger hypocritically shirked World War I while (guiltily?) invoking “manliness” (cf. Harvey Mansfield’s book of that title and his interview with Stephen Colbert where he indicts the unmanliness of Kerry and praises the manliness of Bush – who flew planes for the National Guard and then ducked out even of that, in a war he believed in here) for the rest of us.

Of course they believed in the wars they avoided, whereas opposition to unjust wars, notably civil disobedience, is courageous and willing to pay a price…. In avoidance, they emulated Cheney who had “other things to do” and many neocons who supported recent American aggressions.

********In the peroration of his “Restatement” in On Tyranny, speaking elliptically in the voice of “another,” a courageous nihilist, and joking about Marxism, Strauss was happy with the idea as opposed to the last men and “universal tyranny of technology” that rebellion and nuclear war might produce a “new spring” of stone age humanity:

There will always be men [andres] who will revolt against a state which is destructive of humanity or in which there is no longer the possibility of noble action or of great deeds. They may be forced into a mere negation of the universal and homogeneous state, into a negation not enlightened by any positive goal, into a nihilistic negation. While perhaps doomed to failure, that nihilistic revolution may be the only action on behalf of man’s humanity, the only great and noble deed that is possible once the universal and homogeneous state has become inevitable. But no one can know whether it will succeed or fail. We still know too little about the workings of the universal and homogeneous state to say anything about where and when its corruption will start. What we do know is only that it will perish sooner or later (see Friedrich Engels, Ludwig Feuerbach). Someone may object that the successful revolt against the universal and homogeneous state could have no other effect than that the identical historical process that has led from the primitive horde to the final state will be repeated. But would such a repetition of the process – a new lease on life for man’s humanity – not be preferable to the indefinite continuation of the inhuman end? Do we not enjoy every spring although we know the cycle of the seasons, although we know that winter will come again? Warriors and workers of all countries, unite, while there is still time to prevent the coming of ‘the realm of freedom.’ Defend with might and main, if it needs to be defended, the ‘realm of necessity ”- On Tyranny, 209.

As the first non-Straussian admitted to Regenstein, I discovered Strauss’s memos to future Senator and would-be Republican presidential candidate Charles Percy; to read them in the context of this conclusion is frightening. For instance, on October 24, 1961, Strauss recommends a merciless conquest of Cuba which he thinks will cow the Soviet Union into submission. His words seek a Nietzschean or Heideggerian depth about eschewing the fight against poverty which opposes modern liberalism and radicalism:

“There cannot be a modus vivendi until Russia abandons Communism, in the sense that it ceases to act on the premises of Communism; for it is utterly uninteresting to us and the rest of the non-Communist world whether the Russians go on paying lip-service to Communism, provided they have become convinced that the Free World is here to stay, and they act on this conviction. To bring about this change of mind, the West must be as tough and, if need be, as brutal as the Communists are to the West. The West must demonstrate to the Communists, by words and deeds which allow no possibility of error, that they must postpone forever the establishment of the Communist world society.

But the modus vivendi demands also a radical change on our part – a change of outlook or expectations which will necessarily issue in a change of policies. I can only speak of the change of outlook. Hitherto the West has believed in the possibility of a perfectly just society (federationist or unitary) comprising all mankind – a society rendered possible in the first place by universal affluence and ultimately by the increase in human power to be brought about by technology or science. Everyone has now become aware of the fact that the great enterprise which was meant to bring about the abolition of misery, has in fact brought about what we may call the absolute misery: namely the possibility that, so to speak, a single tyrant can destroy the human race. We must rethink radically the expectation which has pervaded our thoughts and actions in all domains, that the human condition is thinkable without the accompaniment of misery. By this I do not deny that it is the duty of humanity to relieve misery wherever one can [an exoteric remark, for Percy].”

After the Cuban missile crisis and the narrowest miss at nuclear war (Cuba had over 100 armed nuclear missiles of which the Kennedy administration was unaware), Strauss wrote on February 12, 1963:

“Dear Mr. Percy,

I believe that the following points have not been made, or at least have not been made with sufficient audibility: 1) To speak in the only language which Khrushchev understands, Cuba is our Hungary; just as we did not make the slightest move when he solved the problem in his back yard, Hungary, he cannot, and will not make the slightest move if and when we take care of the problem in our back yard, Cuba.”

Compare Minowitz, Straussophobia, pp. 80-82