February 1, 2005
Re: Odd Days, Executive Branch Criminals, And The Wide Road To War
From: Dean Lawrence R. Velvel
We live in odd times. At least they seem odd to those in their 60s who suffer from the conceit that in their youth they were inculcated with some of the more admirable views of the 1950s and early 1960s. In those days, honesty, competence, hard work, modesty and, increasingly, concern for others were celebrated. The idea that we would have a President and Cabinet members who were criminals, and a Department of Justice which did everything it could to abet the crimes, was unthinkable. To be sure, there were those with bad ideas in those days, southern racists and militarists prominent among them. But I daresay that ever-increasing opinion went the other way.
But today we have a president, cabinet officers, subcabinet officers, government lawyers, judges, and cabinet nominees who beyond dispute are guilty of crimes because they knew of, welcomed in the hope it would extract information, and unsuccessfully tried to immunize torture, torture which apparently even went to the point of approximately two to three dozen deaths in captivity. Of course, that these people are guilty of crimes is not something that the mainstream press is yet willing to say. It lacks the courage, especially as to Bush himself. Nor are the Democrats willing yet to say it, much less bring impeachment proceedings against this crowd of criminals, since it would not at this point be good politics -- Bush just won the election, after all, which for at least some time in the future will immunize this twice accidental president against being brought to book. Nonetheless, to use phraseology that was a favorite of a conservative, Bob Bork, despite the current weak knees of the press and the Democrats, "there is no legitimate argument" that Bush and company are not guilty of crimes. It was, indeed, the fear that its people were engaging in crimes that initially led the CIA to request the preposterous and now (only) partially abandoned legal opinions authorizing torture despite American laws against it.
One remembers the days -- only about seven or eight months ago -- when it was possible to still hope that the mess at Abu Ghraib was confined to sex and to Abu Ghraib itself. But more and more came out, is still coming out, and is likely to continue coming out about what we are doing and who authorized it. The latest revelation is that Michael Chertoff, who was first made a federal court of appeals judge and now has been nominated to be the Director of Homeland Security, was deeply involved in torture mongering when he was head of the Criminal Division of the Department of Justice. The CIA asked Chertoff if specific techniques of torture would subject its operatives to possible prosecution. One of the techniques which Chertoff approved as legal in certain instances was waterboarding. Waterboarding? Waterboarding is not torture? There may be other methods of torture as devastating, but it is hard to imagine one that is more devastating.
Waterboarding has been described in a new book by Mark Danner called Torture And Truth. Actually, all that one needs to know, in order to understand what it is, is that it was used by France in Algeria, and by governments in Latin America, e.g., in Argentina and Uruguay. There seem to be two versions of it. In the French version the prisoner is laid on his or her stomach on a flat board, with the head extending over the end of the board. Under the head is a basin of liquid: filthy water, water mixed with urine, or other delights. The board is then tilted so that the prisoner’s head is dipped into the liquid, which soon covers his mouth and nose and the prisoner understandably believes he is being drowned. The Latin American version uses a table and an oil drum filled with water. When the table is "appropriately" lifted, the head is submerged in water and the person believes he is being drowned. Waterboarding induces immense fear because, to quote from Danner’s book, "as a Uruguayan army interrogator put it, ‘There is something more terrifying than pain, and that is the inability to breathe.’" Yet waterboarding is not torture? Boy, if Chertoff’s judgment is that this is not torture, I sure wouldn’t want Judge Michael Chertoff of the Third Circuit Court of Appeals opining on any law case I’m involved with.
Chertoff was the third government torture-criminal to be rewarded by nomination to a federal appeals court. Jay Bybee and William Haynes (whose appointment has been held up by Senate Democrats) are the other two. Chertoff now is also the second torture-criminal to be nominated for a Cabinet level position, with Gonzalez being the other one. It is to the credit of the Democrats on the Senate Judiciary Committee that, after first lauding Gonzalez as a poor boy who made good and saying they would vote for him, they changed their minds and voted against him. But he passed the Judiciary Committee by a 10 to 8 straight party line vote (and will pass the full Senate too). The straight party line vote for him in the Judiciary Committee numbered, of course, Arlen Specter, the three-dollar-bill Philadelphia phony, the pretend liberal or pretend moderate who is desperate to stay in his reactionary party’s good graces so that he may remain Chairman of the Judiciary Committee. Since he voted for an architect of our pro-torture policy, one is driven to the conclusion that Specter, a Jew, must never have heard of the holocaust or of the physical and mental torture perpetrated by the Nazis (not to mention Joseph Stalin). Oh well, anything for political position, I guess.
As this is being written, what if anything the Democrats will do about Chertoff is anyone’s guess. But think of it -- if he is approved by the Senate, we will have as Director of Homeland Security, with all the incredible power of that position when it comes to interfering in citizens’ lives, a man of such impeccable integrity that he sanctioned gross torture. One can hardly be faulted for wondering whether anyone will be safe if Chertoff thinks, or someone persuades him to think, that some criminal governmental action or other is necessary to protect the nation. Break-ins, incommunicado detentions for months or years on end, beatings -- why not? They all will assist in making the nation safer, won’t they?
One can imagine that, from the standpoint of people like Bush, Cheney, Addington, Rumsfeld, Cambone, etc., and from the standpoint of their right wing supporters, we should affirmatively want as Director of Homeland Security a guy like Chertoff who gave a pass to waterboarding. No wonder the torture mongers are rewarded by federal judgeships and cabinet positions, or, with the help of major universities like Harvard and Berkeley, with prestigious law school professorships.
Since the Democrats, in the current state of matters, are not likely to do anything with regard to Chertoff, Gonzalez, Bush, Cheney, Rumsfeld, etc., is there any hope of anything being done in the foreseeable future (or ever)? Probably not. But if there is any hope, it most likely lies with media like The New York Times and The Washington Post (and with their reporters who specialize in these matters), with individual writers or columnists like Mark Danner, Sy Hersh, Bob Herbert and Maureen Dowd, and with a handful of lawyers like Scott Horton. Though this blogger – I think rightly -- regularly takes the media to task for inadequacies, it is also true that the organizations and people I have just named have been doing a fine job of exposing what has gone on with regard to torture, and in keeping on the pressure. If this continues to be done without surcease, it is not impossible that within a year or so it may become as clear to the rest of the country as it already is to a few that culpability for serious criminal conduct runs all the way up to Bush and Cheney. Their criminal conduct is far worse than anything the impeached Bill Clinton ever did, bummy character that he is, and is just as bad or worse as anything the resigned-one-step-ahead-of-the-posse Nixon ever did. (Nixon’s crimes never killed anybody, although his policies killed hundreds of thousands or millions.) Nixon and Clinton were far more popular at given times than the second Bush ever has been, and there was a time when the thought of impeachment of either of them seemed as farfetched as does the impeachment of Bush and company now. Yet look what ultimately happened to them.
* * * * *
So the current scene, with criminals in office or advancing to higher office, is odd to someone raised in the culture of the ’50s and early ’60s. But the scene is not just odd; it is also tragic. We are faced today with a situation in Iraq which looks to have no end. Bush, of course, has trumpeted the recent elections there, because there was a relatively high turnout. But this election and Bush’s trumpeting of it no more mark the end than (as Frank Rich recently said) did the American takeover of Baghdad on April 9, 2003, Bush’s announcement that major combat operations were over on May 1, 2003, the capture of Saddam Hussein on December 14, 2003 (over a year ago), or the (partial) handover of sovereignty on June 28, 2004. There are still religious and tribal feuds, there are still insurgents, there is still growing hatred for the occupiers, and so on.
Female American soldiers are being placed closer to male combat troops because we lack sufficient forces. The army, its director of operations recently said, is still operating on the assumption that there will be more than 100,000 American troops in Iraq until at least the end of 2006, two years from now. And Bush keeps saying he will stay the course. People have a habit, you know, of not taking Bush at his word (e.g., like thinking after the election that he might sack Rumsfeld although he often said he wanted Rumsfeld to stay). Well, not to take Bush at his word is a serious mistake. He may be an intellectual midget. He may have prepared for the presidency by being a serial failure in business. He may brag that he doesn’t read and that he ignores details -- disasters both. But he does intend to do what he says he’s going to do when it comes to fighting wars.
And now, just to make matters even worse on the international front, we have learned that the Pentagon has used and is increasing its capability to secretly use special operations forces all over the world. In particular, it may use them in Iran, a country which much of the rest of the world is already deeply afraid we will attack, so that there will be another war. (Is it purely fortuitous that a shallow, John Wayneist, war-flick-in-print-type-book, a sort of shoot-’em-up in print that glorifies the army’s special forces and that was written by a reporter who was at times embedded with them and who had the army’s cooperation, has just been published?)
In the midst of all this, surprisingly enough, there is the beginning of a small movement, including some conservatives, to get out of Iraq. Some House Democrats have submitted a sense of congress resolution calling for withdrawal; the submitters had the guts to take the position, anathematized by conservatives since Nixon and Agnew, that if you really want to support our troops, the best way to do so is to get them out of a country where roughly 1,400 have been killed and over 10,000 have been wounded. Marty Meehan, a House Democrat, has called for phased withdrawal. Former Secretary of State Baker has spoken of the need to draw down our troops. Max Boot, who as far as I know has never heard a shot fired in anger nor heard of an American war he didn’t like, and who strongly favored the invasion of Iraq, has said that, although we are not yet quite in a Viet Nam-type situation of "‘suffering a lot of casualties with no obvious gain,’" still "‘you can certainly see a building sense of frustration about whether we’re making progress.’" Boot’s comments are symptomatic of the fact that even supporters of the war are beginning to see it as potentially another Viet Nam (which is very ironic, since it was Bush the Second’s father who was so proud after the first Gulf War that we had "licked the Vietnam syndrome").
Those who want to see us get out of Iraq, especially Democrats, and who might even want to take action in Congress to accomplish this, are laboring under a terrible handicap, however. It is one that was never even thought about until years and years into the Viet Nam War, because until Viet Nam the relative authority of the President and Congress to decide on war had not been much considered. As part of doing extensive work on the question of the constitutionality of that war, it is probably fair to say that this blogger did more than anyone else to figure out the problem then, yet the problem is so simple and so obvious that it was and remains embarrassing to him to have taken years to figure it out. "How stupid can one be?" is the bothersome thought in this regard.
The problem in mind is this: once Congress has authorized war, or once the President has taken us into war without Congressional authorization, because of the presidential veto power it takes a two-thirds vote in each house of Congress to get us out. A simple majority in each house cannot do it. So it is easy to get into a war but hard to get out of one. As was noted near the end of the Viet Nam War by a federal trial court judge whose decision against war was immediately reversed by the Second Circuit Court of Appeals, only one-third plus one in either House of Congress can keep us in an existing war because it only takes one-third plus one in either House to uphold a veto of a bill that would get us out. This is not even to mention other political complications, which shall be discussed below.
Unhappily, there is no question that Congress has authorized war in Iraq, Afghanistan, Iran or anywhere else that Bush and his right wing crackers may decide to go to war. The Congressional law specifically authorizing force in Iraq said that "The President is authorized to use the Armed Forces . . . as he deems to be necessary and appropriate in order to -- (1) defend the national security of the United States against the continuing threat posed by Iraq." The Congressional resolution authorizing the war in Afghanistan is far broader and far worse: it authorizes war anywhere and everywhere the President wants. It says that "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Plainly, all the President has to do to launch a congressionally authorized war against Iran, Syria, any other country, or any person or organization, is to "determine" that the desired enemy in some way helped or harbored the September 11th terrorists and war will help forestall future attacks against us. To make such a determination is no trick at all for an Executive that already has "determined" that Iraq had WMDs, that Iraq helped the September 11th terrorists, that Iran and Syria aided or harbored them, or, in other language-and-fact-distorting findings, that gross torture is not torture at all.
The truth of the matter, although the mainstream press clearly does not yet have the guts to say it, is that September 11th was not a disaster to George Bush. It was a godsend to him. This is an unusual and to many people infuriating thing to say, but it is just as obviously true. Bush was a guy who until September 11th didn’t have a clue. Like his daddy, he was not big on the "vision thing." But along came September 11th and he suddenly found that he could be the President who not only made the world safe for democracy (again), but who spread democracy all over the world in the process of saving America from Islamic fundamentalists. Now that was a vision; and George the Second embraced it. And an obsequious Congress played along by enacting a broad scale resolution authorizing him to make war anywhere, everywhere and forever so long as he performed the easy trick of determining that the enemy of choice in some way aided or harbored the terrorists of 9/11. That this resolution, as said, authorizes war forever is merely underlined by the constant statements by Bush and his crowd that the war against terrorists is a war without end (and by their intent to hold captives for tens or scores of years if necessary).
Can Congress do this? -- can it give the president its constitutional power to determine whether we shall fight a war, and allow him to exercise its power into the indefinite future? Although the very idea would make the founders turn over in their graves, the answer today, unhappily, is yes. Congress now can do this. Until the 1930's there was a constitutional doctrine which would have prevented it, the so-called (non) delegation of powers doctrine. Under that doctrine Congress could not delegate away its powers to the Executive Branch or to administrative agencies. But in the 1930's, due to the New Deal, this changed. Now Congress can totally delegate away its decisionmaking power, and, in the field of war, that is what it has done since the Gulf of Tonkin Resolution of 1964 -- forty years ago.
So Democrats in Congress who may wish to put an end to the Iraqi or any other war are faced with the fact that Congress has authorized such wars (so long as the President performs the easy trick of relating the intended enemy to 9/11). And the authorization, once made, cannot as a practical matter be rescinded. If the President’s party controls Congress, as during Nam and as true now, the Congressional Committee chairs and leaders will not let a war-ending bill get out of committee. If it somehow got out of committee, the controlling party’s Congressional troops will be marshaled against it on the floor. If it were somehow to pass Congress, the president will veto it. He will veto it even if it is part of a more general and important law, such as a military appropriations bill, because he knows that Congress will have to reenact the military appropriations bill, sans its war-ending clause. (We can’t have a military that has no money, after all.) He will similarly veto it, if it comes in the form of a bill saying no funds can be used to fight a particular war or against a particular enemy. And once he vetoes it his veto will stand if as few as one-third plus one member of either House refuse to override it. Moreover, the threat of veto is not some merely lawyerish hypothetical. It was done by Nixon in the last part of the Viet Nam War, and, in order to override his veto and at long last get us out of that war, Congress had to agree to allow the war to continue for awhile. Does anyone really doubt that, like Nixon, Bush would veto a bill that puts an end to his military adventures? Anyone who doubts it has not been watching or listening to George Bush for the last few years.
So the chances for success of those who would like to see an end to the war in Iraq are slim indeed. Though it is hard to fathom, to really grasp, that that war and/or new wars may continue for years, one look at Viet Nam shows that wars, once entered or authorized, can continue endlessly if backed by a determined President. By 1965 or 1966 there were lots of people who wanted to see an end to American participation in the Viet Nam War. But that war, backed by two presidents, did not end for America until 1973, seven to eight years later, and was secretly expanded to neighboring countries (Laos and Cambodia), just as the present Iraq war may be expanded to (and already may have been secretly expanded to) neighboring countries like Syria and Iran. And when necessary, our war in Indo China was financed by monies secretly transferred from other accounts by the Executive (as the Bush Administration may also have done already in regard to Iran, though one cannot yet know).
What can be done to avert the horrid possibility of long lasting, expanding war - - a possibility that seems all too plausible under true believer George and his various henchmen in DOD and elsewhere -- does not readily spring to mind. Continued exposure by the press of iniquitous conduct by Bush and his administration, pressure of one type and another from foreign governments who find Bushian America a major threat to peace, pressure from Democrats and others who want peace to break out, and, withal, bringing the pot to a boil that promises a major defeat for the Republicans in 2008 would seem to be the only, and all too slow, candidates to cure the situation. There is an old Russian proverb, relating to the massive deaths in war, that says it is a wide road that leads to war, but only a narrow path home again. The same idea is true relative to the general problem of getting into and out of war. It is easy to get into war. The carelessness and stupidity of our presidents and congresses have definitively proven that since at least 1964. But getting out of war is another and much harder matter entirely. And as has been regularly shown, it is not a matter that presidents and congresses usually even think about, and certainly do not think hard about, when taking the wide road to war.*