Monday, May 4, 2009

David Swanson on an even worse Bybee memo

I'm taking the liberty of quoting the essay in full. This needs to be seen by as many eyes as possible:
Jay Bybee wrote another memo that nobody has noticed, one purporting to authorize crimes far worse than torture, the same crimes the torture was itself intended to create false justifications for. On October 23, 2002, Assistant Attorney General Bybee signed a 48-page memo to the "counsel to the president" (Alberto Gonzales) titled "Authority of the President Under Domestic and International Law to Use Military Force Against Iraq." This was another secret law, but instead of authorizing particular uses of torture (which in reality were far exceeded, engaged in prior to the memos, etc.), this one authorized any president to single-handedly commit what Nuremberg called "the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole." And while the torture memos extensively and grotesquely limited the days of sleep deprivation and the hours of waterboarding, the aggressive war memo included only a single paragraph at the bottom of page 47 requiring that:
"Were the President to determine that the use of force in self-defense is necessary to counter the threat posed by Iraq's WMD program, such force should be proportional; in other words, it should be limited to that which is needed to eliminate the threat posed by Iraq."
When this memo was written, our president, vice president, and top cabinet officials were screaming about Iraq's vast quantities of weapons, but Bybee was already crafting his justifications around the idea of weapons "programs."
The result was guaranteed to be massive death, no matter how "proportional" to the nonexistent threat. But the permission was also guaranteed to be wildly exceeded by anybody's definition. The result has been 1.2 - 1.3 million deaths according to Just Foreign Policy's updated figure based on the Johns Hopkins / Lancet report, and according to the British polling company Opinion Research Business's estimate as of August 2007. According to the United Nations High Commissioner for Refugees (UNHCR), the number of Iraqis who have fled their homes has reached 4.7 million. If these estimates are accurate, a total of nearly 6 million human beings have been displaced from their homes or killed. Many times that many have certainly been injured, traumatized, impoverished, and deprived of clean water and other basic needs, including the need to have parents.

And what has accumulated in the evil of the whole? The current occupation of Iraq has seen the United States target civilians, journalists, hospitals, and ambulances; use antipersonnel weapons including cluster bombs in densely settled urban areas; use white phosphorous as a weapon; use depleted uranium weapons; employ a new version of napalm found in Mark 77 firebombs; engage in collective punishment of Iraqi civilian populations; including by blocking roads, cutting electricity and water, destroying fuel stations, planting bombs in farm fields, demolishing houses, and plowing down orchards; detain people without charge or legal process without the rights of prisoners of war; imprison children; torture; and murder. Michael Haas has published a well-documented book with the clear title: "George W. Bush, War Criminal? The Bush Administration's Liability for 269 War Crimes." Jay Bybee's liability must not be minimized.

Bybee's memo declares that a president has the power to launch wars. Period. The "authorization to use force" passed by Congress is treated as gravy on top of this basic power. According to Bybee's copy of the U.S. Constitution, Congress can "issue formal declarations of war." According to mine, Congress has the power "to declare war," as well as every related substantive power. In fact, there are no incidental formal powers anywhere in my copy of the Constitution.

Bybee dismisses the War Powers Act by citing Nixon's veto of it rather than the law itself, and upholds the "authorization to use force" without mentioning the requirements it included for the president, requirements he later met by lying about weapons and ties to 9-11. Bybee cites letters written by Bush as authoritative. He even cites a Bush signing statement. And, of course, he cites and relies on previous memos produced by his office, the Office of Legal Counsel in the Department of Justice.

Bybee relies heavily on the "Bill Clinton sort-of did it and might have done it, and therefore it is legal," argument. For good measure, he throws in Truman and Bush Sr. and Kennedy and Reagan, not to mention an Israeli ambassador's opinion of a U.N. declaration condemning an aggressive attack by Israel. The thrust of the argument is that, because Bush Sr. and Clinton launched strikes into Iraq it's OK for Bush Jr. to launch a whole lot of them. This would be the same as arguing that because Bush Jr. and Obama launched strikes into Pakistan, Obama or any future president can launch a full-scale war there. Legally, this is nonsense. The strikes are as illegal as the war would be. Politically, it's something to consider: do we really want to maintain silent acceptance of such strikes?

Bybee claims not only that a president can simply launch any war he wants, and that the "authorization to use force" somehow adds to that complete and total power, but also that -- in terms of international law -- attacking Iraq would be justified both as authorized by the UN Security Council and as an act of self-defense. The war would not be so much a new war, Bybee claims, as the suspension of a cease-fire that Iraq suspended first. And the Security Council would have authorized a war even though the Security Council itself might claim otherwise. Bybee redefines self-defense as "anticipatory self-defense" and argues that the authors of the UN Charter could never possibly have meant otherwise. And he adds that, in an age of nuclear weapons, anticipatory self-defense can justify launching a war against any nation that might conceivably acquire nukes, even if there was no reason to think that nation would use them to attack yours:
"We observe, therefore, that even if the probability that Iraq itself would attack the United States with WMD, or would transfer such a weapon to terrorists for their use against the United States, were relatively low, the exceptionally high degree of harm that would result, combined with a limited window of opportunity and the likelihood that if we do not use force, the threat will increase, could lead the President to conclude that military action is necessary to defend the United States."
This memo justified a war of aggression and all the crimes and abuses of power abroad and at home that were justified by the war. Jay Bybee has a lifetime appointment as a federal judge wearing black robes drenched in the crimson blood of his victims. His crimes are on paper in black and white for the world to see. If he is not impeached and prosecuted, similar horrors await our planet in the near future.
You'll notice near the end of the essay that there is a link to the Bybee memo in question, in pdf format. Obviously, the hope is that you'll download it, read it on your own, and then decide for yourself as to what conclusions can be drawn.

At Notes From Underground, we've tried to periodically draw attention to the estimates of those killed in the current phase of the Iraq War (that is, the phase initiated by Bush II on March 20, 2003; it is been noted elsewhere that the first phase was initiated by Bush I, and the second supposedly humanitarian phase launched by the Clinton regime), the internally displaced, along with such practices as the use of white phosphorus, depleted uranium bombs, the use of 40,000 pound bombs on heavily populated areas, destruction of Iraq's infrastructure, urbicide, and of course torture. Analysis of the reasons for this particular phase of the Iraq War has been provided as well from time to time (both here and elsewhere). Just as a friendly reminder:
The far less feel-good narrative is that those who pushed for and executed the war knew exactly what they were doing, and are quite comfortable with the massive human displacement that has resulted. In other contexts, it gets referred to as "shock therapy," and indeed Naomi Klein refers to Iraq as just one more test case for Friedmanesque neoliberalism in her recent book, The Shock Doctrine (here's a video that gives you some idea of what to expect from the book - not a substitute for reading the book of course!!). Heck, RickB of Ten Percent makes something of a reference to Klein's book in his post The Surge Doctrine - which is what turned me on to the article I just excerpted (a tip o' the hat to you RickB!). The complete drain of qualified scholars and technicians has guaranteed that Iraq - or whatever it eventually becomes - will be stuck with US and UK firms running the country (for a hefty fee, of course), while the rest of the government is little more than a hollowed-out shell. For some corporate executives, it's quite a racket they're running. The masses of now-disposable humanity, kept largely out of sight and out of mind is by design. Those few Iraqis who manage to make any semblance of a living there will accept ridiculously low wages without complaint for fear of losing even that pittance. As long as the chaos remains contained outside of The Green Zone, everything is just hunky-dory.

In another context, Subcomandante Marcos of the Zapatistas referred to the mass-displacement caused by NAFTA as genocidal. That would seem quite an apt summary of what's going on in Iraq.
What has been particularly startling is simply the banality of the evils committed during the first sorry decade of the much ballyhooed New American Century. In Dostoevsky's classic novella Notes From Underground, the author distinguishes between his protagonist (whom we know as "the underground man") and "men of action." The latter are apparently able to go through life without so much as a thought about what they are doing or why they are doing it. Decades later, Hannah Arendt would make it clear that these "men of action" are the ones most at risk to commit acts of grave evil (her book Eichmann in Jerusalem, in which she introduces the term "banality of evil" is an absolute must-read in order to truly grasp the consequences of action without thought). Harold Pinter, in his Nobel Lecture in 2005 brought up the point once more:
The crimes of the United States have been systematic, constant, vicious, remorseless, but very few people have actually talked about them. You have to hand it to America. It has exercised a quite clinical manipulation of power worldwide while masquerading as a force for universal good. It's a brilliant, even witty, highly successful act of hypnosis.

I put to you that the United States is without doubt the greatest show on the road. Brutal, indifferent, scornful and ruthless it may be but it is also very clever. As a salesman it is out on its own and its most saleable commodity is self love. It's a winner. Listen to all American presidents on television say the words, 'the American people', as in the sentence, 'I say to the American people it is time to pray and to defend the rights of the American people and I ask the American people to trust their president in the action he is about to take on behalf of the American people.'

It's a scintillating stratagem. Language is actually employed to keep thought at bay. The words 'the American people' provide a truly voluptuous cushion of reassurance. You don't need to think. Just lie back on the cushion. The cushion may be suffocating your intelligence and your critical faculties but it's very comfortable.

[snip]

What has happened to our moral sensibility? Did we ever have any? What do these words mean? Do they refer to a term very rarely employed these days – conscience? A conscience to do not only with our own acts but to do with our shared responsibility in the acts of others? Is all this dead? Look at Guantanamo Bay. Hundreds of people detained without charge for over three years, with no legal representation or due process, technically detained forever. This totally illegitimate structure is maintained in defiance of the Geneva Convention. It is not only tolerated but hardly thought about by what's called the 'international community'. This criminal outrage is being committed by a country, which declares itself to be 'the leader of the free world'. Do we think about the inhabitants of Guantanamo Bay? What does the media say about them? They pop up occasionally – a small item on page six. They have been consigned to a no man's land from which indeed they may never return. At present many are on hunger strike, being force-fed, including British residents. No niceties in these force-feeding procedures. No sedative or anaesthetic. Just a tube stuck up your nose and into your throat. You vomit blood. This is torture. What has the British Foreign Secretary said about this? Nothing. What has the British Prime Minister said about this? Nothing. Why not? Because the United States has said: to criticise our conduct in Guantanamo Bay constitutes an unfriendly act. You're either with us or against us. So Blair shuts up.
Got it? No thought. Banality. The terrifying reality of those victimized by imperium is minimized, if not altogether ignored. Those who perpetrate heinous crimes thus far do not only escape punishment, but get promoted - in Bybee's case with a life-time position as a federal judge. Perhaps more terrifying - those who drafted the legal documents, those who promoted these war crimes from the highest levels, are likely much like Eichmann and others who were tried for war crimes after WWII: strikingly normal. Perhaps the common thread is a lack of or an unwillingness to engage in reflective thought - a thread not only common to the individuals involved but to the cultures that nurtured these individuals. Our culture is one that is addicted to "feel-good" messages - what I'm offering up is precisely the opposite. Looking in the mirror, both individually and collectively, at the close of this particular decade will not feel good. Even less comforting for many of my fellow Americans is the realization that they have no control over how others judge us as a nation or as individuals residing within that nation, and that ultimately it will be impossible to suppress those judgments - no matter how harsh they may be. In the famous one-act play No Exit (by Jean-Paul Sartre), there's a famous line in which one of the characters, Garcin, states, "Hell is other people." From as global a perspective as I can offer, let me be the first to say, welcome to Hell.

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