A Conference "On Presidential Power In America"

September 25, 2006

Re: A Conference On “Presidential Power In America.”

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

As readers of this blog know, this writer is deeply concerned over presidential power. My concern is the opposite of that of the Vice Pretexter. Apparently as a carry over from his Nixonian days, when Congress and the courts cut the imperial presidency back to a size more in keeping with the framers’ intent, the Vice Pretexter thinks the Presidency is too weak. This writer thinks that, abetted by a sniveling Congress and a fearful, incompetent mass media, the Presidency has gotten dangerously close to all powerful, precisely what the founders feared in an Executive. Because the framers feared another George the Third, they would fear George the Forty-Third.

In his classic concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson summarized some of the reasons the President has become so powerful, reasons that are further exacerbated today. Here is what Jackson said:

As to whether there is imperative necessity for such powers, it is relevant to note the gap that exists between the President’s paper powers and his real powers. The Constitution does not disclose the measure of the actual controls wielded by the modern presidential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is. Vast accretions of federal power, eroded from that reserved by the States, have magnified the scope of presidential activity. Subtle shifts take place in the centers of real power that do not show on the face of the Constitution.

Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.

Moreover, rise of the party system has made a significant extra constitutional supplement to real executive power. No appraisal of his necessities is realistic which overlooks that he heads a political system as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effective control into branches of government other than his own and he often may win, as a political leader, what he cannot command under the Constitution.

Today the President claims, and/or asks Congress to give him, more power than ever before. He claims, has been given, or seeks power to fight wars against whomever he chooses and for as long as he chooses. He claims the power to ignore laws passed by Congress. He claims the right to operate secret prisons that hold unidentified prisoners. He claims the power to torture. He claims the right to imprison indefinitely people who may be – and in some cases admittedly have been, innocent. He claims the right to kidnap people off the streets of foreign countries. He claims the right to electronically eavesdrop. He claims the right to use secret evidence before military tribunals. Etc., etc. And to a considerable extent he has been able to exercise much of this claimed authority because, as Jackson said, he has unparalleled access to the (sycophantic) media and is the leader of (a disgraceful) political party -- and, one may add, the courts have lacked the intelligence or courage to stop him.

This blogger is worried by the growth of despotic presidential power unmatched since Nixon’s days, and perhaps even surpassing Nixon’s. For that reason, our law school (the Massachusetts School of Law) is going to hold a conference on October 14 and 15 called Presidential Power In America. The topics to be discussed there will include both constitutional and political ones: among them will be British antecedents and the intent of the framers regarding Executive power, the growth of Executive Power far beyond what was foreseen, the effect of the Supreme Court’s (infamous) 1936 decision on the foreign relations power in the Curtiss-Wright case, the failure of Congress to assert and maintain its power, constitutional doctrines regarding delegation of power to the President by Congress, the media’s failure to hold the Executive accountable or even to report what the Executive is doing, the use of executive privilege, the growth of secrecy, the use of the state secrets doctrine and the effect of leaking, the use of military tribunals, the use of torture, and the effect of war and national security in causing permanent growth of Presidential power.

These and other crucial subjects relating to presidential power will be assessed by speakers and panelists ranging from prominent scholars and authors who began dealing with these issues as long ago as the days of Viet Nam (e.g., Richard Falk, Louis Fisher), to young reporters who have broken huge stories such as the one on George Bush’s infamous signing statements (Charlie Savage of The Boston Globe). An alphabetical list of the 16 speakers and panelists is in footnote 1 below.[1] (Rest assured that the name John Yoo is not among them.)

Because of the importance of the question of presidential power, the proceedings of the conference will be videotaped, edited and made available on Internet video, with excerpts also being made available on standard television. Also the proceedings will be published by Cambridge Scholars Press, a British publisher.

Because of the importance of the topics, the prominence of the speakers, and many readers’ deep concern over what has occurred under the Bush Administration, some of the readers of this blog might like more information about the conference or might even wish to attend. You can obtain additional information, including a full description of each speaker and panelist, and the specific expertise of each, by visiting www.mslawevents.com, or by contacting Jeff Demers at (978)681-0800, demers@mslaw.edu.*



[1] David Gray Adler, Thomas Cronin, Richard Falk, Louis Fisher, Michael Genovese, Daniel Hoffman, Peter Irons, Nancy Kassop, Christopher Kelley, Peter Malaguti, Christopher Pyle, Andrew Rudalevige, Connie Rudnick, Charlie Savage, Robert Spitzer, and Lawrence Velvel.

* This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

Bob Herbert's Recent Truths And Their Consequences

September 20, 2006

Bob Herbert’s Recent Truths And Their Consequences.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

On Monday Bob Herbert of The Times became the first mass media figure I know of to at least partially recognize a truth whose underlying basis has been urged here virtually since this blog began in May 2004. To wit: the real reason that Bush, Cheney and the other pretexters (“pretext,” meaning to lie or, at minimum, to falsely pretend) want there to be retroactive immunity for the federal crime of torture is that the higher-ups are guilty of this felony, are guilty of a crime punishable by up to life imprisonment or execution for those who murdered prisoners and up to life imprisonment for coconspirators like Bush, Cheney, Rumsfeld, Wolfowitz and the rest of that pretexting crowd. Yet, though Hebert had the courage to recognize the foregoing truth, even he, who was among the first to say Bush is incompetent, did not have the courage to explicitly say that Bush and Cheney are liable for crimes. Instead Herbert spoke only of a need “to cover the collective keisters of higher-ups who may have authorized or condoned war crimes,” and he said that, if defendants can see the evidence against them, there is a “possibility of evidence emerging that could lead to charges of war crimes against high ranking officials.”

Since there already is ample evidence that Bush and his top henchpeople knew of and desired torture in an effort to get information, it is ineluctable that Herbert is ultimately speaking of Bush, Cheney and the other top pretexters, though he did not mention their names or offices. As well, Bush’s pretext that all he seeks is clarity of the law for low ranking officers is, well, just another of his pretexts (“pretext,” remember, meaning to lie or, at minimum, to falsely pretend). The truly pertinent law is sufficiently clear already (despite attempts by Bush and his allies to obfuscate the problem by either refusing to discuss specific actions or by alluding to things like playing loud music). Anybody can know you can’t waterboard, can’t beat prisoners, let alone beat them within an inch of their lives or unto death, cannot inflict great pain upon them, etc. Beyond the adequate clarity, moreover, The Pretexter-In-Chief and the Vice Pretexter have never given a damn for other people, for low ranking people: their actions in fomenting this war and its scores of thousands of killings speak louder than all their pretexting words in this connection, as does the very fact that they have sent no members of their families, in harm’s way, but only members of other people’s families.

Perhaps some men and women in the CIA and the military may deserve sympathy in a way, because the pretexters put them in a position where they felt they had no choice but to do bad stuff, since they knew the pretexters wanted it done. Yet they could have refused to join in it. The FBI refused to join in it. And surely the CIA and military people knew that following orders is illegal when the orders themselves are illegal -- that is, after all, the principle of Nuremberg, which we established, and is taught to our people, one gathers. And the CIA people, at least, did know that what they were doing was illegal, as evidenced by the fact that their fear of ultimately being put in the dock led to their initial requests for the CYA memoranda written or approved by reprehensible lawyer-savages like John Yoo, Jay Bybee, David Addington, Alberto Gonzalez, Jack Goldsmith (who may be a bit less reprehensible and savage), and others.

There was another truth, propounded here since the beginning of this blog, and later admitted (at least defacto) by the government and recognized by the media, that appeared in Herbert’s column on Monday. This truth is that the reason the Pretexter-In-Chief and his henchpeople want military tribunals, not civilian courts, to try detainees is that evidence obtained by torture, and the so-called fruits of this evidence, i.e., other evidence it led to, cannot be used in the civilian courts. Thus, the entirety of cases against top Al Qaeda figures could collapse in the civilian courts, since evidence against them was obtained by torture or is the fruit of such evidence. And the cases will equally collapse before military tribunals if the Prextexter-In-Chief does not succeed in ramming through a bill allowing evidence obtained by torture, and the fruits of such evidence, to be used by the tribunals. We are not dealing, you know, with interrogation techniques that the top pretexter pretextingly tries to sanitize by calling them “alternative” techniques of interrogation. We are generally dealing, rather, with torture, plain and simple; waterboarding, beatings and murder are the heart of the problem.

All of this gives rise to some most interesting ideas and questions. To begin with, it is commonly said by The Pretexter’s opponents that what is at stake is whether our own men, when captured in this or future wars, will be tortured because we torture people. The pretexters generally don’t respond to this, except to say that terrorists are in a different position when captured. Well, I would never belittle the views of the pretexters’ opponents, many of whom are or were military people, the very kind of people who could in fact be tortured by others if the pretexters get their way -- while the pretexters often have no combat experience or even military experience whatever, or even were draft dodgers, like the Vice Pretexter. It also remains, true, however, that one conceivably can doubt whether the treatment given Americans captured by terrorists, or captured by certain of the nations the pretexters seem eager to fight if they can get away with it (e.g., Iran, Syria), will turn on whether we engage in torture. One cannot be sure about this, but one can have doubts.

This reinforces the idea that there is something else equally (or in are way even more) at stake here. What is at stake here is morality. Decent people in this country -- in its civilian body, in its military, in its law enforcement agencies, recoil in moral horror at torture: at waterboarding, at beating people mercilessly. The spirit of this morality was caught beautifully by Herbert on Monday when he said, “Torture? Secret prisons? Capital trials in which key evidence is kept from the accused? That’s the stuff of Kafka, not Madison and Jefferson”. Of course, we have a lot of people who are not decent, who are not moral, people who often are called red state savages here (regardless of where they live) and who favor the torture, the secret prisons, the capital punishment without defendants seeing the evidence against them. I reiterate: What is at stake in the current battle over what Bush wants is morality. It is, one notes, an already “accomplished” (by The Pretexter and Co.) lack of morality, and threatened future lack of morality that gives rise to the increasing hatred which people of the world feel for us already and will feel even more strongly if The Pretexter’s pretexting views prevail (because of a pretexting Congress that has no guts and often no morality). Morality is the fundamental point here.

Then there is the question of the possible trials themselves, a question arising regardless of whether or not Bush gets his bill enacted. If evidence obtained by coercion and torture is inadmissible, evidence of the specific tortures used against specific individuals is likely to be offered to prove torture and inadmissibility. Such evidence will be introduced at trials, and will become public, thus revealing immoral acts and furthering demands for investigations of the chain of command all the way up to the Pretexter-In-Chief, exactly the kind of investigations which are the very thing that Herbert correctly implies Bush is fearful of.

Even if evidence obtained by torture is not ipso facto inadmissible, but instead is admissible if reliable, there will still be evidence of the torture itself because the defendants will argue that evidence of the torture will show unreliability and inadmissibility of the evidence against them. Unreliability of evidence secured by torture has already proven to be the case with at least one detainee who was thought (mistakenly, one gathers) to be a high ranking Al Qaeda type. So, once again, evidence of the torture is going to come out and there are going to be calls for investigations of the chain of command all the way up to the Pretexter-In-Chief.

Maybe the Pretexter-in-Chief will try to avoid all this by closing the trials to the press and public, by having secret trials before military tribunals. This in itself could raise a furor, with one of the questions which arise being just what is The Pretexter and his henchpeople afraid of. Beyond this, the defendants’ lawyers will be speaking with their clients, and from them will learn what happened to them. One can rest assured, I would bet, that what the lawyers learn from their clients will become public sooner or later. Probably sooner rather than later precisely because morality will be at stake, and the kinds of lawyers who will represent the defendants are the kinds of people to whom, thank goodness, morality is very important.

The future trials, however, are not the only reasons why the Pretexter-in-Chief and his henchpeople can find themselves in deep yogurt. If the Democrats win either house of Congress in November, the yogurt could hit the fan. Armed with the subpoena powers of the house they capture, the Democrats may mount aggressive investigations of all the actions of The Pretexter, The Vice Pretexter and their pretexting henchpeople. In connection with torture, and in connection with the Iraqi war, no doubt there are many Democrats -- not to mention a host of the party’s supporters -- who would be chomping at the bit, and applying pressure, for this to be done.

Nor is this all. Hundreds of detainees have now been released, and their stories are slowly finding their way into the media here and in other countries. This will likely increase, so that, in this way too, ever more will become known about what was wrought by the Pretexter-In-Chief and his henchpeople.

Then, too, there is the question of prosecutions abroad, perhaps even mounted in absentia if this is necessary because the defendants won’t show up and won’t be forcibly extradited by the United States because of its immorality. A lot of what has been ordered, desired, or done by Bush and company, and by CIA and military people acting under their aegis, is illegal under international law and sometimes, one gathers, under the domestic laws of the countries in which the acts were committed (e.g., snatching someone off the streets of a foreign country for rendition). Foreign countries have jurisdiction over these criminal violations of international law and their own domestic laws. (Italy has thus issued an arrest warrant for CIA officers who kidnapped a Muslim there.) They can bring prosecutions against American violators. If necessary, they could, as indicated, try the culprits in absentia, as has been done under international law when necessary and desirable.

All of this could result in American actions being brought ever more before the public eye and the bar of justice, and, even if Americans charged abroad with pertinent crimes will not be extradited by the United States, their movement around the world could at least be inconvenienced. For some the inconvenience might be very great.

So . . . . . Always remembering the definition of pretext (“pretext,” meaning to lie or, at minimum, to falsely pretend), it would appear that, one way or another, the Pretexter-in-Chief, the Vice Pretexter and their corps of henchpeople pretexters are going to be in it for fair sooner or later. What they have done, ordered, desired, and been complicit in is likely to become ever more public by one means or another. One’s great fear, of course, is that even though their horrid actions are detailed in public, the American people, especially because of the perhaps one third who are instinctually red state conservatives-to-reactionaries, will still fail to care a damn, or at least to care enough of a damn, about what the pretexters have wrought, will fail to care, or to care enough, about the war, the torture, the lying, the foreign and domestic disasters, about punishing those responsible for the disasters, just is nobody was punished for the pretexting, immoral, hopeless disaster that was Viet Nam. Even so, one can be fairly confident that history will punish the Bushian pretexters and the country, the U.S., which succored them. And unhappily for us, other nations, given the justifiable dislike, even hatred, of us that many of them have developed because of the pretexters’ actions, might in various ways punish us long before history does.*

* This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

Comments on Pretexting

To: velvel@mslaw.edu
Date: Mon 9/18/2006 10:55 AM
Subject: comments on pretexting



Men like Bonhoeffer, during the most trying of times, were never afraid to speak out against the evil. The fear of death prevents all too many from standing against the storm of evil, yet with their silence, they facilitate the death of a world.
I take it as the extreme insult for those sympathic to the current regime's foreign policy to castigate me for being in dissent. I and others of my time fought the undeclared war in Viet Nam and have not only struggled with the reality of that nightmare but have had to see this country remain in the control of those that never learn history's lessons.
How many more names on how many more walls and monuments will take for the bloodlust of the American ruling class to be sated?
Do Americans really prefer attending ceremonies honoring the dead to ceremoniously electing people to office that would prevent the causes of those deaths?
United we stand has a hollow ring in a land where the beacon of hope for humanity is now the spotlight shining down on dissenter's that understand the heavy price we will pay for our actions, casting us as the abettors of the enemy.
The great tragedy coming from the Bush policy is that all the deaths of Americans in previous wars will have gone for naught. They will have sacrificed not to bring peace to the world but to bring to power those that cause perpetual war.
It is the great shame that they will have died not in vain, but for a lie.
And the lie continues. Freedom does not ring in America.

denny cautrell
gainesville fl

Re: The Pretexter Stain: Let History Know You Want To Be Included Out.

September 14 , 2006

Re: The Pretexter Stain: Let History Know You Want To Be Included Out.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

I.

Though George Bush, Dick Cheney and their cohorts are liars, one has always been reluctant to apply the word “liar” to the President of the United States. “Liar” is such a harsh word, a word so out of keeping with the (false?) conventions of professional and civil discourse. True, Lyndon Johnson, Richard Nixon and Bill Clinton, like Bush, were also liars, so that one might argue, only half facetiously, that over the years the word “liar” and the word “President” have become practically equivalent, practically synonyms. This argument would augur for it being permissible, as well as factual, to call the President a liar. But still the word “liar” has a harsh ring and the conventions remain against it, at least in written discourse.

On the other hand, to merely say that the President was “incorrect,” or that he made a “false” statement, sounds so weak in comparison with the venality and mendacity of the false statements. (WMDs anyone? Saddam supports Al Qaeda anyone? By fighting them in Iraq we are creating democracy throughout the Middle East anyone?)

So, since the use of “liars” is against convention, and “incorrect” and “false” are too namby pamby, what word shall one use?

Well, thanks to Hewlett Packard we now have the perfect word. George Bush is a pretexter. He and his cohorts are constantly pretexting. To pretext -- using the word as a verb, in the same way that “impact” got turned into a verb (as in “it impacted me”) -- is to lie. At minimum, to pretext is to falsely pretend, which, when you think about it, is hard to differentiate from lying, although the tone is perhaps slightly less harsh. So, using “to pretext” as meaning to lie (or, minimally, to falsely pretend), George and company pretexted about WMDs, pretexted about the use of rendition and torture, pretexted about the real reasons for using military tribunals (the “real reason was that they knew civilian courts would not let in evidence obtained by torture), pretexted about the competence of the government’s response to Katrina (remember “You’re doing a heck of a job Brownie?), pretexted about judicial appointments, and pretexted ad infinitum and ad nauseum.

Most recently Bush and his cohorts, in a mad fit of trying to keep Republicans in office by politicizing the war in Iraq, have been pretexting shamelessly about the meaning of our current wars. His war against terrorism is “‘the decisive ideological struggle of the 21st century,’” the Pretexter-In-Chief said on September 11th. And “‘the safety of America depends on the outcome of the battle in the streets of Baghdad,’” he said the same day. One might ask, how can the pretexter know, in only the sixth year of the 21st century, that the battle against terrorism is the decisive ideological battle of a century that still has 94 years to go? Could a person in the year 1906 have foreseen the Great War and the problems it left? The rise of Soviet Communism? The rise of German fascism? World War II? The atomic age? The Cold War? Repeated genocides against one group and another? The rise of Muslim fundamentalism? All of which occurred in the 94 years after 1906. Is Bush some sort of clairvoyant, some sort of Nostradamus, who can see the future in 2006 in ways that were denied to the lesser mortals of 1906? Why does one doubt this?

What’s more, doesn’t the “‘decisive ideological struggle of the 20th century’” sound awfully much like Lyndon Johnson’s and Richard Nixon’s statements that we must fight and defeat the communists in Viet Nam or they will threaten and possibly take over the entire “free world”? (Which in truth is not always so free and in some places is not free at all.) Johnson’s and Nixon’s statements were pretexts -- which doesn’t augur well for Bush’s statements about decisive ideological battles. And doesn’t Bush’s statement that our safety depends on fighting them in the streets of Baghdad remind you of, isn’t it defacto identical to, Johnson’s infamous statement that we have to fight them in Viet Nam or we’ll have to fight them in the streets of San Francisco? Johnson’s statement was a pretext. Bush’s isn’t?

Of course, Bush’s most recent pretexts can falsely be argued to be something other than pretexting. One could say, for example, that he is not pretexting, but rather is expressing honestly held opinions, or is merely indulging in politics. Sorry bub. These arguments won’t do. If he is merely engaging in politics, this would signify yet again how low our politics have sunk. And it also raises a somewhat philosophical question. If pretexting might not be pretexting if one believes it (assuming that Bush does), then when is an honestly held belief so stupid, so preposterous, that it is the defacto equivalent of a pretext? Is the statement that the holocaust never happened not a lie, despite its stupidity and counterfactualness, because David Irving and Ahmadinejad really believe it? We open the door to more and continuous pretexting if we allow such nonsense not to be thought pretexting, since people, including Pretexters-In-Chief, can always say, “Well, I really believe it.” (As Lincoln once analogously remarked, if one says the Constitution allows a President to fight a war without congressional approval whenever he says he is repelling an attack, then one is saying the President can fight a war whenever he chooses to say he is repelling an attack. So, too, here a pretexter would be found not to be pretexting because he really believes his own lies, er, pretexts. (It is an old saw that one should never believe one’s own b.s.))

Bush’s pretexts, including really dumb statements such as his most recent pretexts about the supposed decisive ideological struggle of the 21st century and the streets of Baghdad, also bring up other questions. How is it that this country elects leaders of such remarkably little intelligence as Bush and his mentor, the Yale flunk-out (who failed out when only 2% of Yalies did so.) Or, to put the matter harshly, but possibly truly, is it possible that our electorate is so stupid, or so biased, that it is regularly taken in by such people? Sadly, the latter possibility does not seem wholly bereft of accuracy. A woman who sometimes responds to my blogs, and whose responses make plain that she is a person of parts, recently opined to me that, looking around the world, it would seem that about one-third of the population of countries is deeply, instinctually conservative. Her estimate would seem true if not low for America, if you ask me. (Whereas, one would estimate that only a far smaller percentage of the population -- perhaps five or ten percent -- are deeply, instinctually liberal. (Which is one of the reasons why our Revolution was so remarkable and why Tom Paine remained odd man out for so long though he is perhaps the greatest political writer ever.)) Given the heavily conservative tilt of our population, there are overwhelming numbers of people who wish to believe, and therefore will believe, any conservative claptrap that reactionary pretexters like Bush and Cheney spout, no matter how absurd it is. So yes, we are faced with serious mass stupidity by lots of the electorate, aided and abetted by the incompetence and sometimes mass stupidity of the media.

Much of this, of course, contributes to the reasons why the right wing is so angry at higher education, since the right wing (the David Horowitz crowd) thinks the academy has been taken over by the left -- which surely is not true of at least some highly influential places like the University of Chicago Economics Department (and its Political Science department -- I really don’t know) -- and which, even where true, does not seem to be having much effect on the views of students, who are often very conservative these days. The right wing zealots, however, having taken over the three branches of the Federal Government, much of state government, much of the press, and most think tanks cannot stand the fact that elements of the academy resist. (A couple of years ago it was said here, to the seeming consternation of at least one leading conservative blogger, that in view of the conservative takeover of most of America, and notwithstanding the variegated intellectual viewpoints of our own school’s faculty, there was a real question whether liberals were obliged, Horowitzian-like, to insure that there are conservatives on faculties. Lately some others have said the same thing for the same reasons. And, given the press, the think tanks, the multitude of conservative books, and the multitude of conservative students, one need not worry that the conservative view will be shut out on campus.)

In any event, it seems to me that a major share of an electorate is fundamentally conservative, and will accept any conservative pretext, no matter how wrong or even stupid, that is offered by any (continuous) pretexter like Bush. Currently, the only saving grace (if it can be called that) in the long run is that some of these people will ultimately come around to conceding the truth after the facts showing the pretexting have piled up year after year, as they have piled up for years now regarding Iraq, so that even people who voted for and long favored the Pretexter-In-Chief are apparently proving somewhat resistant to Bush’s current pretexts aimed at saving a Republican Congress, thereby enabling him to continue his war indefinitely and to save his own pretexting hide. Possibly, there may also be another saving grace in process of arising. There are some who think that the heavily conservative tilt of the population is, most importantly, a tilt of the older generation, and that the rising younger generation generally does not share it, notwithstanding all the YAFs, YRs, Federalist Societies and other conservative to reactionary student organizations on campus. If this is true, there may ultimately be a change in instinctual preferences. But even so, in the meanwhile, and while others are only slowly coming to grips with the actual facts which confute the pretexts of Bushian cohorts, people like Paul Krugman and the saving five or ten percent who recognized the facts early-on will have to live in frustration that others refuse to accept plain truths that guys like Krugman try to explain to them.

II.

George Bush’s pretexting has been in service of what he thinks a great cause: himself. It would seem a virtual certainty that Bush thinks fate has destined him to be a great man. He even seems to think that God speaks through him. (Does he even think that saving him to be a great man is why God rescued him from being a drunk and a serial failure on the private side? It would never occur to him, I imagine, that God saved him to preside over a disaster -- in government, where competence is not a prerequisite to reaching high office.)

For Bush, September 11th was a godsend, and he should thank his lucky stars that he paid no attention to the warning memo of August 6, 2001 and that the FBI paid no attention to the agent(s?) who was concerned that flying lessons were being taken by one of the persons who ultimately was a hijacker on 9/11. Had Bush paid attention to the August 6th memo, or had the FBI heeded warnings, there might have been no 9/11, and Bush would have been sunk. For on September 10, 2001 he was a nondescript, increasingly less popular president with no significant program, no major thrust, nothing that would allow him to be remembered as the likes of Washington, Lincoln, Theodore Roosevelt, FDR, or even the three dollar bill Kennedy are remembered. One day later, the stage was set for him to be a great man, to be a hero: to be the President who took out Al Qaeda in Afghanistan and around the world, who put down Saddam, who brought peace and democracy to the Middle East. (It is not possible, is it, that this is what was going through his mind during the famous few minutes, highlighted by Michael Moore, of what appeared to be blankness in the grammar school classroom when he was told about a plane crashing into one of the Twin Towers?) Nine eleven gave Bush his “life force” as President. It gave him the ability to pretext about one thing after another in service of his envisioned greatness, to invade countries, to whip the American people, in service of his envisioned greatness, into a continuous state of fear as if we were facing possible Japanese and German invasions in World War II amidst takeovers of truly huge, truly enormous chunks of the civilized world by the Nazi military machine and the Japanese militarists. Nine eleven gave Bush a raison d’etre where before he had none, and enabled him, in his own mind, to pursue the course that would lead to the self imagined greatness that he thought his destiny.

You know, during World War II the Supreme Court ruled that Jehovah Witness children could be forced to salute the flag in school. About a year later the Court reversed itself. Robert Jackson, whom I think the greatest pure writer ever to sit on the high Court, was against the reversal. He opined that, given the quick change of course, the majority’s reversing opinion would in future be of more interest to psychologists than to lawyers. He was, of course, wrong. Lawyers wholeheartedly agree with the second, reversing opinion, which is the opinion considered for decades now in the study of and writing about law, and lawyers wonder how the Court could have reached its first, soon reversed opinion. If there is anything worthy of psychoanalyzing, it is the initial opinion and the psychological reasons for a change of mind that led to the second, widely honored opinion. Yet Jackson’s statement nonetheless has a certain resonance here. It would not surprise me if, in future decades -- say thirty, forty and fifty years from today -- George Bush’s rapid embrace of 9/11, and his continuous use of it for his own, often highly partisan purposes, is a subject of interest and concern to head doctors and their ilk, not just to professors and other students of foreign relations, military affairs, or political affairs. It could well be a psychological case study of the use of disasters, and the underlying reasons for the use of disasters, to lift one to one’s self-imagined destiny of greatness.

Bush’s dreams of glory, his pretexting in their service, and the mindset into which he and his cohorts whipped the American people, have led to horrible events and results, as all know. To recapitulate just some of them, we have engaged in torture; have run secret prisons (as Bush recently conceded); have started a disastrous war in Iraq -- a war which in recent months is getting ever worse, as is the war in Afghanistan too, a war in which nearly 3,000 Americans have been killed, many thousands more, perhaps nearly a score of thousands more, have been seriously crippled for life, and untold numbers of Iraqis have been killed, perhaps 100,000 or more; have let American soldiers who tortured or killed prisoners escape with a slap on the wrist and wouldn’t dream of putting higher ups in the dock for the torture; have held even innocent people in prisons for years on end; have seen the legal profession traduced by professionally despicable memoranda written and approved by reactionary lawyers to give legal cover to assaulters and murderers ranging up to the Pretexter-In-Chief (a service for which the lawyers received judgeships, cabinet positions and prestigious professorships); have spied on American civilians; and have wreaked havoc on our military services, with some people having to serve tour after tour after tour. Now the Pretexter-In-Chief has submitted a bill, and he and his henchmen in the Executive and Congress are seeking immediate passage with the least possible consideration (ala the Patriot Act) of a bill, that will make permanent some of the terrible things, and will permit additional terrible things: among other things the bill would retroactively immunize torture which was a felony under federal law, would allow much torture in the future, would allow people to be put to death without seeing the evidence against them, and would cause rules of the Geneva Convention to evaporate as far as the United States is concerned. All of this is simply unpalatable to any decent person -- as some of it explicitly was to the Armed Services’ various Judge Advocates General when they testified about it to Congress -- but is perfectly fine to the pretexters and the savages who are their allies in the government and the country. And, unpalatable to decent people as it in fact is, it inevitably brings up certain parallels with Nazi Germany, parallels regarding the governors and parallels regarding the governed, parallels, that is, regarding the Nazi officials high and low who drove the policies of that despicable regime, and parallels regarding ordinary citizens and even the now infamously termed “German judges,” who merely went along with the regime. I wish to talk in this blog about a parallel, or partial parallel, regarding the governed.

Like Roosevelt’s famous description of Pearl Harbor, the ordinary German citizens of the Nazi period, who went along with the regime for one reason and another, are today remembered in infamy. Whether because of economic desperation, resurgent nationalistic pride, militaristic tradition, significantly authoritarian tradition, anti-Semitism, stab-in-the-back baloney, or simply not giving a damn, they let it all happen, they let their leaders unleash the greatest worldwide military holocaust in history. One of the questions thus asked, often bitterly, of or about the ordinary German citizen by later generations of Germans, and by citizens of the allies, was “What did you do during the War?” The world did not forget the ordinary citizens’ complicity; the history-minded remember it still, and likely will continue to remember it for 200 years from the end of the War. The ordinary citizens were complicit in creating a stain on Germany that will be remembered for hundreds of years no matter how democratic, even paradigmatically democratic, today’s Germany is and tomorrow’s may be

We Americans of today are living through a period that in a crucial way is similar to that of the WWII Germans -- and, it can even be argued, have been living through such a period since Johnson escalated Viet Nam, though we shall concentrate here only on the last four years or so. We are living through a period when the Bushian pretexters have wrought international havoc, have wrought deaths galore, have wrought torture, have wrought abandonment of traditional American morals, have wrought the loss of civil liberties, have wrought all this by wrighting the continuous fear against which FDR warned in his first inaugural, have thus in toto wrought disasters right and left, as many of us now agree, and have wrought pregnant possibilities of even wider wars and even greater disasters in future. By continuous pretexting and the disasters it enabled them to cause, they have stained this country, as the Nazis stained Germany. The world is no more likely to forget this pretexters stain in future than it is to forget the stain on Germany. In future, as was true for the supposedly “innocent” Germans of the War, people are going to wonder and to ask, and history is going to assess the question of, “What did you do when the pretexter stain, the disasters caused by Bush and company, was running riot?”

Few of us ordinary citizens, almost none of us, have done enough, and few, almost none of us, have had the capacity to do more than we did. We are, after all, like the ordinary Germans of the war period, leading ordinary lives; we have no political power, no celebrityhood for attracting attention, no voice, really, in what is happening, notwithstanding that we have the right to vote, a right that, despite the platitudes of politicians about the power of the vote, has become next door to meaningless in modern America where money, power and celebrityhood count for all, morality and decency for very little, and where the two political parties are, in the classic words of George Wallace -- George Wallace for Pete’s sake -- just tweedledum and tweedledee.

In view of all this, I am going to run an experiment for the sake of history. Given the nature of America, and given the nature of Americans, I don’t expect the experiment to be a success, at least not unless and until it is replicated by some person or some group that has a lot of money and an extensively recognizable name. But here it is: A website has been set up entitled “LetHistoryKnow.com.” This website will allow any persons who disagree with any or all of the pretexters’ policies that have led to the historical stain on America, to register their disagreement for history, for their own children, their grandchildren, their great grandchildren. All that one has to do to register his or her disagreement for history and descendants is to pull up the website, LetHistoryKnow.com, type into the space provided for this purpose the (Goldwynesque) phrase, “Include me out,” and type in one’s web name and address and/or, if one is brave, one’s real name and state of residence (not one’s street address). The website will provide a permanent record of those who want history and their descendants to know that they feel strongly enough about enough of the Pretexter Stain policies -- maybe not all of the policies, but at least some of them -- to register their disagreement for posterity, disagreement registered by the phrase “Include me out.” (If enough people register their disagreement with the Pretexter Stain policies, I will, of course, make sure the politicians and the media learn of it.) My own position has been and will be permanently recorded ad nauseum through my blogs, journal articles and books. But in decency, just in case there are risks involved (which I doubt), my name must also be the first one on the register of names on “LetHistoryKnow.com”, so that mine will be the first name exposed to the risks, if there are any. Whether there will be any other names after mine remains to be seen, though I, of course, encourage people to say “Include me out” and to put down their web names and addresses and/or their actual names and states of residence, so that history and/or their descendants will have a permanent record of where they stood during the time of the Pretexter Stain.*



*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. Dean Velvel’s podcast can also be found on Itunes or at http://www.lrvelvel.libsyn.com/

Re: Eric Lomax’s “The Railway Man” And Today’s America

September 6, 2006

Re: Eric Lomax’s “The Railway Man” And Today’s America.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

A few weeks ago I saw one of those lists of the best books on a subject. (I can’t remember where I saw it.) This list was about books on World War II, and may have been divided into various sublists. One of the listed books was Goodbye, Darkness, William Manchester’s memoir of war in the Pacific, which I read many, many years ago. Absent from the lists, to my surprise, was a book which, though it is little known, is certainly one of the greatest memoirs of World War II and has been praised to the skies by the likes of Paul Fussell and John Keegan. The absent book is With the Old Breed At Peleliu and Okinawa, by Eugene B. Sledge. Sledge, a Marine from Alabama, was about 20 years old when he entered the service. He later became a professor of biology in his home state. His book is an all time classic. It ranks in my judgment with two great books of the First World War. Robert Graves’ Goodbye To All That and Siegfried Sassoon’s partially fictionalized Memoirs of An Infantry Officer. One would think Sledge’s memoir should be read by anyone and everyone with the slightest interest in WWII. How it got left off the list I saw escapes me. Perhaps the answer is ignorance of it.

Another book that, like Manchester’s, was on the list was one I had never heard of. It is called The Railway Man, by a Scotsman named Eric Lomax. The extremely apt subtitle is A POW’s Searing Account Of War, Brutality And Forgiveness. It was published in 1995 in both Great Britain and the U.S., by W. W. Norton in both countries apparently. I was attracted to it because the list said it was a memoir by a POW who worked on the Siam-Burma railroad, the railroad that the Japanese were building as part of a network that would connect Singapore to various Asian cities and, ultimately, to India, and that was immortalized in The Bridge Over The River Kwai. I have now read The Railway Man. It is a classic. It is wonderful.

Let me tell you about The Railway Man in the briefest possible, most overarching terms. Lomax was a young man who was in the British army and was captured at the fall of Singapore. While a prisoner doing repair and similar works on various types of vehicles, he was tortured mercilessly, as were colleagues, because they were found to have built a radio so that they could get news from the outside world, and, in Lomax’s case, also because the Japanese had discovered a map he had drawn. (Via the radio the POWs learned of the onward march of the Allies in Europe and the Pacific.) The torture and its mental effects beggar description. Suffice to say here that once Lomax and several others were individually beaten brutally, for amounts of time that apparently ranged up to an hour each, by several Japanese soldiers wielding the equivalent of pick handles. Some of the victims died more or less on the spot. At other times Lomax got water treatments -- one of them being the equivalent of the waterboarding done by the CIA in George Bush’s so-called war on terror. There were many other episodes of horrific torture. We don’t have to get into it any further.

After the war Lomax suffered for nearly 50 years from what has come to be called post-traumatic stress syndrome. This had devastating effects on his psyche, his personality and in his dreams. One of the Japanese he could not get out of his mind was a small, slight man who was the interpreter when Lomax was being interrogated endlessly, and tortured, by a brute who was a member of the Kempeitai, which was in effect the Japanese equivalent of the Gestapo. The interpreter was an accomplice to the continuous torture.

Lomax wanted to kill the interpreter.

In about the mid to late 1980s, I gather, Lomax learned who the interpreter was and that he was still alive. The interpreter, Nagase Takashi, had spent decades doing penance for the conduct of the Japanese army towards its POWs; he had felt guilt; he had written a short book about his experiences, a book in which he specifically described a horrific instance of the torture of Lomax; he had built a religious shrine at one end of the bridge over the River Kwai; he had taken anti-militarist positions which outraged his countrymen.

Lomax (initially through his own wife) got in touch with Takashi, and they ultimately arranged to meet, which they did at one end of the bridge over the Kwai. They and their wives spent time together there, at other places on the railroad line, and then in Japan. The interpreter needed Lomax’s forgiveness, desperately I would say. Forgiveness was hard for Lomax to give, but he finally did give it, writing it out in a letter beforehand and reading the letter to Takashi in a hotel room.

There is a picture on the inside of the book jacket of Lomax and Takashi together, in Japan, I would judge, in a railroad station. There is the tall (maybe six foot three or so?) wavy-white-haired, white mustached, suited and tied Scotsman, Lomax, and the short, bald, informally jacketed, tieless Takashi. They are standing side by side, both looking directly at the camera, shaking hands with their right hands, with Takashi’s right arm extended across his body to reach Lomax’s right hand.

This brief description gives a sense of the overall essence of The Railway Man, but certainly does not do justice to the whole of the book or the wealth of details, often affecting ones, that fill it. It is a very moving book, one that causes you to weep inwardly at the horrors in its pages and sometimes at the beauty and emotion in them. It is, as I’ve said, a classic.

Yet, I do not bring it up here just because it is a classic. As readers may have figured out, I read lots of books, the more so because of MSL’s book TV show and its authors’ book talks at night. But few of the books are discussed here. The Railway Man is being brought up here, however.

When a person of my age or older reads The Railway Man, one inevitably is reminded all over again of why Americans of a certain period hated the Japanese so intensely and, one would say, the Germans too after discovery of the concentration camps. (Paul Fussell has written that the discovery of the camps caused American soldiers to begin to hate the Germans, to regard them all as beasts, and sometimes to take no prisoners but instead to kill the Germans without quarter and without mercy. The camps were, he says, the reason the Americans began to feel they were on a crusade. The Russians, of course, did not need the discovery of the camps to hate the Germans, in view of what the Germans had done in Russia.)

The Japanese and the Germans of World War II were savage and evil. There are men a bit older than me who fought the Japanese and even now, or at least until recently, would have nothing to do with them or their products. As well, the war in the Pacific was a race war, and the cruelty of the Japanese towards their enemies is one of the reasons this was so. (I say this knowing full well that America itself had been racist towards the Japanese for 60 some years by the time of Pearl Harbor.) It was the incredible savagery, cruelty, barbarism, and mass murder of the Japanese and the Germans that cause some people of a certain age to sometimes refer even now to the Japanese and Germans of WWII as the Nips and the Krauts. It was the Japanese cruelty in China, Korea and elsewhere that causes those countries to be understandably outraged when Japanese prime ministers visit -- worship at -- shrines to the Japanese dead of World War II, when Japanese militarists want to rearm, when Japanese schoolbooks deliberately omit mention of what Japan did, when Japan refuses to apologize even 60 years later for its horrid actions. Younger generations of Americans, thank goodness, are spared the kind of visceral, bred-in-the-bone-by-events hatred of the Japanese of World War II that still exists in some of their elders, at least on occasion, and, one gathers, that exists in elements of certain Asian populations.

But whether or not one despises the Japan and the Japanese of World War II, and the Germans and Germany of World War II, it is a marvelous thing, it is a world shaking fact, that the Japan and Germany, and the Japanese and Germans, of the last 45 years or so appear to have very little or nothing in common with the savages of the war period. They seem to have become instead, and largely because of the US one gathers, exemplary to the world. They are democracies. They are prosperous. They show no desire to make war. And all this in major part because of American tutelage and aid.

Therein lies one of history’s most profound ironies, an irony that is extraordinarily upsetting to decent Americans regardless of what states they live in and regardless of what is thought or (lyingly) said by George Bush, Dick Cheney, Don Rumsfeld, their red state savages-allies in Congress, or their red state savages-supporters in the South and elsewhere. The irony is that, while Japan and Germany, with American tutelage, have become peaceful democracies, America has gone in the other direction. It has become the most warlike nation on earth, fighting war after war after war. Japan and Germany learned that down that road of war after war lies ruin, but America has been determining for 45 years now to go down that exact road, and is firmly set on it. Likewise, Japan and Germany used to be the torturers, as so powerfully evidenced in Lomax’s book, but now it is America that is the torturer. It was Japan and Germany that claimed that war, torture, mass killing and other evil were necessary for national safety, and now it is America that claims it will achieve national safety through war. Japan and Germany learned that taking on one country after another leads to other countries ultimately ganging up on them, notwithstanding that they too had allies. Now it is the United States (which likewise has at least some -- at least putative -- allies) that is taking on one country after another (Afghanistan, Iraq, perhaps Iran, perhaps Syria, and who knows what others); and now it is the United States that consequently is finding that other countries, learning from the very Munich analogy that George Bush loves to wrongly cite in his own favor, are beginning to gang up against it, as are international non-state terrorist organizations as well, with the national ganger-uppers so far being, most loudly, countries in the one billion person Muslim world, but with several non-Muslim countries likewise being none too happy with us. It is now America that has taken over the mantle of World War II Germany and Japan, as well as the mantle of the post WWII Soviet Union, which collapsed in part because of the bitter enmity of many countries that affected it in many ways, including straining its economy beyond what it could service, and because of its invasion of Afghanistan, the graveyard of great powers for centuries. It is now America that is warlike and that is using torture, like the Japanese of Lomax’s book, and that is justifying torture and is engaging in, and causing, mass killing -- with the result being three million dead by one hand or another in Viet Nam and, it is estimated, somewhere between 30,000 and 100,000 or more in Iraq.

The irony is just horrid. We have become the World War II Japanese and Germans. We do what they did, and we use similar justifications, albeit we alter them to fit our own circumstances. Meanwhile, the Japanese and the Germans are now the opposite. Oh my.

The savages in our government and their red state allies like to say that their opponents are nothing but cutters and runners, are only 1960s liberals, are treasonous, do not honor the flag, are unpatriotic, and what not. Well, the truth is that the flag they want everyone to automatically worship, and the kind of patriotism that horrible human beings like Bush want everyone to automatically defer to, have become a cover for evil. If opposing that evil makes one a cutter and runner, treasonous, a “mere” 1960s liberal, then I say let’s have more such cutting and running, more such “treason,” more such 1960s liberalism. If accusations of treason and lack of patriotism are to be thrown around, in my view the traitors are those like Bush and his allies who ignore the ideals that give meaning to America, and instead are making this country into one that imitates the barbarism of our enemies of WW II (and of the Soviet Union before and during the Cold War). Those whom Bush and his allies slander seem to lack the wit or courage to say this, however.

You know, liberals like this writer are not pacifists. What liberals of today are, though, is far more likely to pick their spots, when it comes to fighting wars, than are the reactionary radicals who inhabit the top levels of government today -- are far more likely to be cautious today, to try other methods to the uttermost today before launching into warfare, to try to be wise and exercise good judgment today. Far from liberals being pacifists or virtually pacifists, as the right wing likes to imply, the people and the media of this country seem never to reflect that the toughest wars in this country’s history were run at the top civilian level by liberals. The Revolution was run by the Continental Congress, dominated by great liberals of their day. The Civil War was run by Lincoln, a great liberal for his day. The Philippines Insurrection was run by Theodore Roosevelt, a liberal. World Wars I and II were run by Wilson and FDR, both liberals. Korea was initially run by Truman, a liberal (and then by Eisenhower, a moderate, not a reactionary). Viet Nam was run for four years by Johnson, a liberal, before it was run by Nixon. Liberals almost all. Yet, the reactionary, militaristic “thugs in suits” (as I believe Howard Zinn calls them) who run our government today, and the ignorant, often politically spineless savages who are their allies in Congress, the red states and elsewhere, claim that liberals (read Democrats?) cannot run national security and won’t fight where necessary, while the liberals themselves (for sure read Democrats) lack the wit to point out that it was persons of liberal stripe, not reactionaries like George Bush and company, who ran most of this country’s toughest wars. (Those wars include, let it be said, some as misguided as is Bush II’s long war against Iraq, to wit, the Philippines Insurrection and Viet Nam, both of which, it is important to say, were, like Bush’s Iraq war after its first few weeks, insurgencies, not conventional wars. Bush learned nothing from these prior terrible experiences, thus demonstrating his brainlessness yet again.)

I conclude with this: It has seemed to me for some time now that the great problems of this country include a widely prevailing lack of imagination or empathy, so that one does not understand or care about what the other guy may be feeling (and that causes approval of torture as well as other major problems). The causative factors of our disasters, you see, are not confined to wide ranging dishonesty, wide incompetence, wide lack of knowledge of history and current events, and unhappy widespread stupidity. They also, as said, include wide lack of imagination. That lack of imagination is brought up short by Lomax’s book, which hits you in the face with the human meaning of torture, both when it occurs and in later years, and which causes one to reflect, when reading of the torture, that we now do the exact same things that were done to Lomax, and that in this and other ways we have become like the enemies we once abhorred.*

* This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. Dean Velvel’s podcast can also be found on Itunes or at www.lrvelvel.libsyn.com