Wednesday, January 7, 2015

Todd Pierce on the double American state: Guantanamo and Ferguson

       Todd Pierce, a former military defense counsel for Guantanamo prisoners, has worked ceaselessly against the Carl Schmitt-ization (Leo Straussization) of phony executive/commander-in-chief power, again made resonant by the Senate Report on Torture. See here.  He sent me the following piece on the "unitary executive," a favored phrase of those who would (again, this is Leo Strauss's chief point in 1933 about the "principles of the Right - fascist, authoritarian, imperial") strengthen authoritarian or what Pierce calls martial rule - tyrannical, illegal and immoral - at the expense of constitutional democracy and decency.  See here.


     Though Pierce sees the role of Mr. Cheney centrally in this regard -  see "The trial of Richard Bruce Cheney" here - he is fully aware of the dark historical background and danger of this authoritarian movement.


      I conjoin his piece with an op-ed by Cliff Sloan in the New York Times.  Sloan was  in charge of trying to close Guantanamo as a concentration camp - its true name - for the Obama administration for two years (the secret site where 3 were murdered - see Scott Horton on the Guantanamo "suicides" here - is not mentioned).  13 years a secret prison and torture house, some prisoners ruled by six government agencies to be freed, but still not freed,  a center of hunger strikes - an act of nonviolence that calls down the compassion of the world - a breeding ground for Monte Christos against the US (nobody expects Al-Qaida to be concerned for the rule of law, but the United States government, and in particular, the cowardly Congress?)  and the criminal Cheney gibbering to keep them there endlessly.


      Cheney was at his most powerful dominating the "dark side" with but few words during the first 6 years of the Bush administration.  His latest outpourings are the arrogant, insane assertions of a war criminal, a King Canute trying to make the sea go back....


       What does the rule of law in America mean?


       Sloan, a decent man and government servant, puts the issue not too strongly:.

      "The road to closing Guantánamo is clear and well lit. We are now approaching the 13th anniversary of the opening of the Guantánamo detention facility. Imprisoning men without charges for this long — many of whom have been approved for transfer for almost half the period of their incarceration — is not in line with the country we aspire to be."


    But if the United States government aspires to be this actual, "efficient" government, it is reprehensible.  (Add in: Guantanamo is a colonial possession stolen from Cuba in the Spanish-American war.  The Obama administration has commendably restored diplomatic relations with Cuba, but insists on keeping the property; I listened to Carol Rosenberg, an experienced reporter about Guantanamo for the Miami Herald, yesterday assert on NPR's "Here and Now" that really it was a matter of opinion whether the US was colonial and in any case, the Obama administration "wanted" it.  Change, with John Rawls, the phrase to Great Britain and Boston or Tampa, and see whether you like this line of "thinking.")

      Pierce was a military counsel for those held - known only by name, not made available to talk face to face with their defense attorneys..., indefinitely detained and tortured  at Guantanamo so the juxtaposition seems particularly apt.   But Pierce's piece suggests that this kind of torture and murder is just the tip of the iceberg of the deep state; the closing of Guantanamo, like other decent Obama actions, would be mainly  cosmetic, not remedying and in other ways, consolidating, as a bipartisan regime - the phrase is Yale law professor Jack Balkin's; see also Michael Glennon's recent work on the Double State - the problem.  

      Learning from Germany once  upon a time and Glennon, Pierce speaks of the dual state: the quasi-legal, in this case, electoral facade, and the secret government arrogating extreme or "martial" powers.  Note that Pierce's is, in fact, a moral differentiation: the secret government, both in Germany and in the US currently, is odious.


Pierce stresses the Office of Legal Counsel which, he notes, is obscure though important.  But this Office played a leading role in authorizing torture under Bush, and then when Jack Goldsmith headed it, withdrew John Yoo's torture memos (Goldsmith and James Comey had to engage in a complex plot in a private, invented language to do this, in Goldsmith's case, having to threaten to and then resign - read Jane Meyer, The Dark Side).  It is, as Pierce says, a shadowy office but a vital one in determining/perfuming Presidential action, including as he suggests, possible murders of American dissidents and civilians as "terrorists" on US soil.


     Given Obama's taking out of Abdulrahman Awlaki, the 16 year old son of an American citizen, pro-American, Colorado State University-educated Imam turned by the Iraq aggression into an enemy, as well as American 16 year old cousin, along with 8 random Yemenis at a rural food stand in Yemen with drones - something Obama is, to this moment, not questioned about in the commercial press or Congress despite "Terror Tuesdays" at the White House where he and Brennan and others sort out targets, see here and here - what Todd points to is a danger.


    Given the continuing imprisonment endlessly without charge and forced feeding/torture at Guantanamo and Obama's acquiescence/help in CIA suppression of the truth about the Senate Torture Report (why isn't the full version available to the public?  who is protected by this secrecy, the people or those in power who did the crimes?), Todd's words are very important.


     Todd notes that lawyers who gave "counsel" to perfume crimes such as  John Yoo - currently just given a chair at Berkeley "Law" School (really, why not an Al Capone Chair at Boalt, too  - Al was surely a lesser criminal?) - were tried and sentenced at Nuremburg.


      Todd's piece identifies a secret or deep government which lives off and strengthens American militarism, in spite of and often against law and the ordinary democratic process.  Its flourishing  is a function of the American government having a trillion dollar per year  war complex (a military-industrial-congressional-media-think tank/academic-weapons and training to repressive militaries in other countries - consider Egypt...- and the like).


    It is a double government, a parasite state (Marx) living inside and increasingly dominating - by bipartisan acquiescence of politicians who are mostly millionaires and need a lot of money put on their nose to run...- the legal/electoral facade.   The former is, as Glennon puts it, efficient, the latter merely traditional and legitimate...


     We the people are transparent to the efficient government (it spies everywhere); it is secret from us.  The Senate torture report is hopeful and yet  perhaps a last gasp at law; whether charges will be brought against the miserable officials of the Bush administration and the lawless CIA flunkeys remains to be seen.  See here,  here and here.


        But as Todd suggests, the secret government is preparing to dissolve a people which includes protestors and, as Bertolt Brecht once suggested of East Germany during a 1953 uprising, "elect a new one."


      As Obama's regime shows, Democratic neo-neo cons cooperate in this (military interventions abroad, allowing or protecting torture and murder as "necessary" government pursuits...).


      Listen carefully to what the OLC memo, barely modified by the Obama OLC, says about shooting people domestically:

     "Furthermore, according to Delahunty and Yoo, terrorists operate within the continental United States and 'conceal themselves within the domestic society and economy,' which makes it difficult to identify them. By this logic, everyone is now “suspect.” Furthermore, they wrote, 9/11 created a situation 'in which the battlefield has occurred, and may occur, at dispersed locations and intervals within the American homeland itself. As a result, efforts to fight terrorism may require not only the usual wartime regulations of domestic affairs, but also military actions that have normally occurred abroad.'”


             Then conjure the Pentagon arming suburban police forces as in Ferguson with tanks and other military weapons (mainly to keep down a majority poor black population).  Foreign policy - having an empire of 1280 military bases abroad, constant interventions or wars - thus comes home.

            Michael Brown was struck down by a demented cop, but the whole apparatus that defends this - including the New York police who affirm the extinction of Eric Garner and turn their backs on Mayor de Blasio for telling the truth to his son and naming it in public - stems from Empire abroad.

      This "anti-democratic feedback" of foreign policy, particularly imperial policy (what America's has been in modern times, though in a few cases, fighting the Nazis for example, also just)  is the name that I give for this process in Must Global Politics Constrain Democracy? (Princeton, 1999). But the murder of unarmed Michael Brown, the Pentagonized, mainly white (3 black officers among 53) Ferguson police force is a vivid illustration of it.


   Note that in the aftermath of Ferguson, Senator Rand Paul forcefully and President Obama somewhat wondered about the Pentagon's militarization of the police even in sleepy suburbs. See "Police killings last year: US 459, England and Japan 0" here. This policy is insane, after all, if America is not a police state (consider the efficient state, the 2.3 million prisoners, 25% of the world's prisoners, contrasted with Obama's noble words about a free regime...).


      But those policies are of a piece; martial law includes, as in the case of Japanese-American internment in World War II Pierce underlines, "civilian" (police) actions...


      Pierce also emphasizes Glennon's accounts of the double government, a la Walter Bagehot, a legitimate and an efficient one.  In Bagehot's case, the morals are inverted, however; disregarding a common imperialism, the Queen and the House of Lords traditional or legitimate but ignoble, the emerging regime of the cabinet and Commons, a quasi-democratic and decent one, "efficient."

      In contrast, the actual American efficient and quasi-secret but martial regime - Glennon elides the moral issue - is forced on Presidents, he suggests, more than it is enacted.  I think Glennon's formulation also underemphasizes the decisive innovations in torture and aggression of Mr. Cheney and Mr. Bush - what they dialectically added to the existing monster -  but in considering the difference between Obama the campaigner of behalf of law and decency and his role as President, Glennon's points are stark.  For his National Security and the Double Government, see here and for a recent Harvard National Security Journal (this is a fairly recent journal, capturing, even in its name, the ongoing corruption of the American government and intellectual life at Harvard) article, here.


       This deep government can be exposed, as Pierce's piece does, its ways - including torture - blocked.  But it will take many Snowdens and Greenwalds and Poitrases and Risens (see here for Risen's defiant testimony Wednesday) and Senate Reports and legal hearings, much pressure from below to do it.


      The Women against Military Madness newsletter in which Todd's article appears is here.


Has the U.S. Constitution Been Lost to Military Rule?

by Todd Pierce

On October 23, 2001, the Office of Legal Counsel issued a legal opinion that would shock most Americans if they realized its full implications. By all appearances, it is still in effect, judging by military surveillance operations taking place in the U.S. by the Department of Defense and the military command within it, the National Security Agency (NSA). The opinion was entitled: Authority for Use of Military Force to Combat Terrorist Activities within the United States (emphasis in original).[i]

What is the Office of Legal Counsel—or “OLC” for short—that made such a bold move? It is a secretive office in the Department of Justice. The purpose of the OLC is straightforward. It sits as a de facto court within the White House that decides the legal questions that set the boundaries for how the federal government runs day-to-day. Be they the highest presidential appointee or lowliest bureaucrat, a government official who complies with the OLC’s opinion is generally immune from later prosecution or liability.

They are immune, that is, unless the OLC attorney was giving “good faith legal advice” when, in fact, the lawyers were just following orders to “legalize” an otherwise criminal act. That “good faith legal advice” would not then serve to protect their clients. Lawyers can't help with committing crimes, and when they do––even OLC lawyers––they can be prosecuted when they knowingly help plan or commit a crime. In fact, a lawyer was prosecuted at Nuremberg for his role in committing war crimes. 

The lawyers who wrote the OLC opinion about the use of military force within the United States were Robert Delahunty, now teaching “law” at St. Thomas University Law School, Minneapolis, and John Yoo, who is back teaching the same sort of law at Boalt Law School, University of California, Berkeley. By “the same sort of law” is meant their idiosyncratic belief that the President, acting as “Commander in Chief,” has dictatorial-like powers.

This is the “unitary executive theory”—a radically un-American, unconstitutional and extra-legal ideology that former Vice President and torture enthusiast Dick Cheney has been pushing since the Iran-Contra Affair. In other countries, but particularly Germany from 1933 to 1945, in which citizens lived under a dictatorship, this was called “prerogative” government, as described by German Jewish lawyers. [*"prerogative" meaning Royal prerogative was a phrase of John Locke's elevated in the account of Locke's view by Robert Goldwin, a close student of Leo Strauss and a "one man think tank" in the Ford administration,  as Cheney and Rumsfeld put it in eulogizing him" - AG].  Both Delahunty and Yoo continue working to shoehorn this radical legal theory into respectability with prolific writing of law review articles promoting it.

The argument was that because of these prerogative powers, the President was subject to no law—neither constitutional law nor international law [The Convention against Torture, signed by Reagan, requires each signatory to prosecute torture when there is significant evidence; this is also American domestic law - AG]. The October 23, 2001 opinion is particularly dangerous, as it essentially granted the President martial law authority, meaning the authority to act outside the Constitution. To reiterate, the conclusion the OLC drew was that the President has constitutional authority to use the armed forces in military operations against those deemed to be terrorists within the United States. Consequently, “these operations generally would not be subject to the constraints of the Fourth Amendment, so long as the armed forces are undertaking a military function.” This is a frightening prospect, since the Fourth Amendment is what protects us against unreasonable searches and seizures, which can lead to arbitrary arrests. [ii]

Furthermore, according to Delahunty and Yoo, terrorists operate within the continental United States and “conceal themselves within the domestic society and economy,” which makes it difficult to identify them. By this logic, everyone is now “suspect.” Furthermore, they wrote, 9/11 created a situation “in which the battlefield has occurred, and may occur, at dispersed locations and intervals within the American homeland itself. As a result, efforts to fight terrorism may require not only the usual wartime regulations of domestic affairs, but also military actions that have normally occurred abroad.”

This opinion by Delahunty and Yoo formed a legal basis for a state of martial law which the Bush administration took to mean that they could fight a “war” against terrorism outside the U.S. Constitution but inside the U.S. geographic area as a “military state,” operating just the way paragons of legality Mubarak’s Egypt and Pinochet’s Chile did. Bush officials argued this was due to necessity, but in fact that was fallacious, as the U.S. military is not, and should not be, considered an antiterrorist force. Militaries exist to defend against foreign armies attacking, not to conduct the police work required for counter-terrorism. But as we’ve seen, when a military takes control of a country, occupying it as in Iraq and Afghanistan, or the Israeli occupation of Palestine, it enforces martial law on the civilians living there—in other words, the military operates as a dictatorship, or as our Supreme Court called it, “martial rule.”

So in writing an opinion authorizing martial law, Delahunty/Yoo asserted that the Fourth Amendment’s protections do not apply to domestic military operations in the United States, regardless of citizenship. They wrote that Federal Armed Forces must be free to use force when they deemed it necessary without being constrained by the Fourth Amendment, “even though force would be intentionally directed against persons known to be citizens.”

Additionally, as a final blow against the Constitution, Delahunty and Yoo stated: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. ‘When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’”

This OLC opinion laid the foundation for all the extra-constitutional actions by the Bush administration that would follow. They are still carried on by the Obama administration today with their assertions that the President can kill American citizens with a drone without any due process (whether inside or outside the U.S.).[iii] It would also explain the military operation currently being conducted against American citizens by the National Security Agency (NSA), a component of the U.S. Department of Defense, in violation of the Fourth Amendment.  

The fruits of that opinion can be seen with an out of control CIA that has been on display with the release of the Torture Report summary released by Senate Select Committee on Intelligence Chair Diane Feinstein in 2014. The acts of torture described in this summary are war crimes because they were committed in the context of, and associated with, wars beginning in 2001. But the war criminals, which could include some lawyers, may believe that there is no accountability for the perpetrators of these war crimes because they are part of, and have the protection of what Professor Michael Glennon describes as a “double government” in his book National Security and Double Government, and in an article by the same name.[iv]

Glennon’s book puts into print, in the open and in the so-called mainstream, what some have known for years. The CIA and other national security agencies constitute a “deep state,” operating outside public view and, as we know now, without constitutional constraints or oversight.

But beyond setting the U.S. on a course of perpetual war and destroying democracy, the economy, and the Constitution, the opportunity was there for those within the deep state to protect their power even more by placing the country under “martial law.” Though we don’t normally see troops on the streets controlling and keeping an eye on us, and most have not felt the effects of a state of martial law, it is in effect with the constant NSA surveillance now permitted by law and the potential of military detention under Section 1021 of the 2012 National Defense Authorization Act (NDAA). Even though these statutes seem to ratify the underlying military authority put into place, that doesn’t change its character as “martial law.” Martial law exists whenever the military assumes authority over civilian officials. When General DeWitt ordered the removal of the Japanese Americans from the West Coast in 1942, a martial law act, that character did not change because Congress, to its later shame, ratified it by providing penalties for violating DeWitt’s order.

In the 21st century, martial law was effectively imposed when the military (NSA) was given the military mission of surveillance of the population (us), the same mission they were given when Iraq was invaded by the U.S. and the NSA mission was to spy on Iraqi civilians. In the U.S., they were tasked to monitor all of our thoughts as expressed in our communications as if they were conducting a counter-insurgency operation. The Minneapolis antiwar activists being investigated by a grand jury is an example of what occurs when a country is under martial law, as is the persecution of Palestinian-American Rasmea Odeh for her nonviolent political activities which are critical of U.S. foreign policy in the Mideast. (It is not required under martial law that only the military enforces it—civilian law enforcement authority is used to enforce it as well.) [v]  

While seeming to withdraw portions of the October 23, 2001 opinion, a 2008 OLC memo corroborates the meaning of the October 23, 2001 opinion fundamentally, but offered that “appropriate caution should be exercised” before relying on the opinion.[vi] Because they are wrapped in secrecy, we have no way of knowing current interpretations, except that we know the NSA/military is still spying on us through all of our communications and Section 1021 of the 2012 NDAA is still on the books as public law, providing for military detention “pending disposition under the law of war.”

For anyone skeptical that this constitutes martial law, a vigorous advocate of martial law for World War II, Charles Fairman of Harvard University, considered a martial law expert writing in 1942, justified it, to include the removal of the Japanese Americans from the West Coast that was conducted under the military authority of General DeWitt. Fairman cited this routine aspect of martial law from World War II Hawaii: “No action should be maintained against a member of the armed forces for any act under color of duty, or against any person employed in an activity essential to the national defense for any act within the scope of such employment; nor should such a person suffer judgment by default, or be subpoenaed as a witness.”

We have seen this principle applied since 2001 in those numerous cases against various national security officials which are routinely dismissed on the grounds of “state secrets,” which can be presumed to be what the torturers are relying upon.
This is not the first instance of a “dual state” in what was once considered an enlightened, democratic country.  In a book of the same name, a German-Jewish lawyer, Ernst Fraenkel, wrote as the opening line in 1939: “Martial law provides the constitution of the Third Reich.” Fraenkel broke German government into the “prerogative state” and the “normative state.” The prerogative state constituted that part of the German state under martial law and run by the security apparatuses. Prerogative power, which Delahunty and Yoo still advocate for, is martial law, or “martial rule” as our Supreme Court once described it.

But we don’t need to permit our country to fall into the abyss as Germany did, or even to be a less severe version. We do not need to give up our constitutional rights anymore in exchange for “safety,” knowing as we do that to suppress speech and intimidate the citizenry is really only to protect the incompetents of the deep state, who are driving the U.S. into an abyss—though different than the German example, an abyss nevertheless.

All we have to do is to demand accountability, starting with the torturers and their legal enablers, whoever they may be shown to be. Demand accountability of our government for these war crimes committed by our government, or call on international organizations and foreign nations that may be willing to assert universal jurisdiction over war crimes. That is what it took to bring war criminal Augusto Pinochet to justice. There is no statute of limitations for war crimes, so we must not give up until torturers and enablers are held accountable for what the Torture Report has shown to be war crimes. We can do no less unless we want future generations to demand of us: why didn’t we do something?     

Todd E. Pierce, Major, U.S. Army  (Ret.), served as Defense Counsel in the Office of Chief Defense Counsel, Office of Military Commissions, from June 2008 to November 2012. He was on defense teams representing three clients held at Guantánamo Bay, Cuba. He was co-counsel in the case of U.S. v. Ibrahim al Qosi, who was returned to his native country in July 2011 after serving two years of his sentence. He continues to serve as co-counsel on the appeal of the 2008 Military Commission’s conviction of Ali al Bahlul, for whom two of three convictions have been vacated by D.C. Circuit Court of Appeals on constitutional grounds, with one remaining under deliberation."


[ii] Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[iii] Amendment V provides that no citizen should be deprived life, liberty, or property without due process of law.  However, in September of 2011, American-born and educated Anwar Al-Awlaki was targeted and killed in a U.S. drone strike in Yemen. Also killed in the strike was Samir Khan. Al-Awlaki’s 16-year-old son, Denver-born Abdulrahman al-Awlaki, was killed by American drones while attending a barbeque with cousins in Yemen the next month. For more information about the killings, see investigative journalist Jeremy Scahill’s account in “Inside America’s Dirty Wars: how three U.S. citizens were killed by their own government in the space of one month in 2011.” (The Nation, April 24, 2013)
[v] For more information, see and


New York Times


CreditAdriá Fruitós

WASHINGTON — WHEN I began as the State Department’s envoy for closing the detention facility at Guantánamo Bay, many people advised me that progress was impossible. They were wrong.
In the two years before I started, on July 1, 2013, only four people were transferred from Guantánamo. Over the past 18 months, we moved 39 people out of there, and more transfers are coming. The population at Guantánamo — 127 — is at its lowest level since the facility opened in January 2002. We also worked with Congress to remove unnecessary obstacles to foreign transfers. We began an administrative process to review the status of detainees not yet approved for transfer or formally charged with crimes.

While there have been zigs and zags, we have made great progress. The path to closing Guantánamo during the Obama administration is clear, but it will take intense and sustained action to finish the job. The government must continue and accelerate the transfers of those approved for release. Administrative review of those not approved for transfer must be expedited. The absolute and irrational ban on transfers to the United States for any purpose, including detention and prosecution, must be changed as the population is reduced to a small core of detainees who cannot safely be transferred overseas. (Ten detainees, for example, face criminal charges before the military commissions that Congress set up in lieu of regular courts.)
The reasons for closing Guantánamo are more compelling than ever. As a high-ranking security official from one of our staunchest allies on counterterrorism (not from Europe) once told me, “The greatest single action the United States can take to fight terrorism is to close Guantánamo.” I have seen firsthand the way in which Guantánamo frays and damages vitally important security relationships with countries around the world. The eye-popping cost — around $3 million per detainee last year, compared with roughly $75,000 at a “supermax” prison in the United States — drains vital resources.
Americans from across the spectrum agree on closing Guantánamo. President George W. Bush called it “a propaganda tool for our enemies and a distraction for our allies.” Kenneth L. Wainstein, who advised Mr. Bush on homeland security, said keeping the facility open was not “sustainable.”
In 18 months at the State Department, I was sometimes frustrated by opposition to closing the facility in Congress and some corners of Washington. It reflects three fundamental misconceptions that have impeded the process.
First, not every person at Guantánamo is a continuing danger. Of the 127 individuals there (from a peak of close to 800), 59 have been “approved for transfer.” This means that six agencies — the Departments of Defense, Homeland Security, Justice and State, as well as the Joint Chiefs of Staff and the director of national intelligence — have unanimously approved the person for release based on everything known about the individual and the risk he presents. For most of those approved, this rigorous decision was made half a decade ago. Almost 90 percent of those approved are from Yemen, where the security situation is perilous. They are not “the worst of the worst,” but rather people with the worst luck. (We recently resettled several Yemenis in other countries, the first time any Yemeni had been transferred from Guantánamo in more than four years.)

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