Tag: war on terror

On Corrupting the Constitutional Order

Michael Gerson, former speechwriter to Bush the Younger and perennial libertarian antagonist, has denounced Rand Paul’s foreign policy views. That should surprise no one, but the manner in which he did so bears discussing.

Gerson’s bill of particulars is as follows:

The younger Paul has proposed defense cuts, criticized foreign aid, led opposition to U.S. involvement in Syria, raised the possibility of accepting and containing a nuclear Iran and railed against “possible targeted drone strikes against Americans on American soil.”

Each of these is its own argument, but what’s more interesting is how Gerson broadens the discussion in an attempt to paint the younger Paul in a conspiratorial light:

His libertarian foreign policy holds that America is less secure because it has been “too belligerent” and that decades of international engagement have both corrupted our constitutional order and corrupted other nations with our largess or militarism.

Reasonable people can disagree about the extent to which U.S. foreign policy has gone off the deep end in recent decades. Also, with due acknowledgment of the victims of U.S. “engagement” in places from Laos to Iraq, people could also disagree about the extent to which our militarism has “corrupted other nations.” But nobody with a lofty perch like Gerson’s should dispute the idea that international engagement has corrupted our constitutional order.

You could fill a library with the volumes that demonstrate how war and preparation for war—which is what Gerson means by “engagement”—have contributed to the growth of the state and the evolution of American political, economic and legal institutions. As that last link shows, influential American legal scholars are hailing Nazi jurist Carl Schmitt as “our hero” in providing the legal case for an unchecked presidency, with James Madison playing the republican bad guy.

And it is the height of irony that Gerson holds up for ridicule the idea that our foreign policy has corrupted our constitutional order the very same week that a U.S. Senator—who is a strong partisan of the CIA—gave a 40 minute speech lambasting the Agency for spying on the legislature in the context of the latter’s investigation of the CIA’s use of torture, or if you prefer, “enhanced interrogation techniques.”

Warrantless NSA spying on Americans, senior Executive Branch officials baldly lying to Congress about it with no consequences, the tortured legal reasoning that led to Guantanamo Bay, the American president claiming the power to assassinate a US citizen with no meaningful legal or legislative oversight on the grounds that he’s talked it over with his legal team, the internment of more than a hundred thousand American citizens for the crime of having had the wrong ancestors… One could go on.

The people who framed our constitution were the sort of people who opposed forming a standing army at a time when European empires were mucking around in the Western hemisphere. So whatever his disagreements with Rand Paul on foreign policy, Gerson could stand to consider—or better yet, do some reading—about how war and militarization have “corrupted our constitutional order.” It’s a bit of an open-and-shut case.

Bin Laden’s Death, One Year On

The killing of Osama bin Laden marked a significant achievement in America’s long war against al Qaeda. Yet, following last year’s Navy SEAL raid in Abbottabad, Pakistan, it became clear that disrupting, dismantling, and defeating al Qaeda did not require the occupation of distant lands. Indeed, even in the absence of the terrorist leader’s death, the sad and simple truth was that the protracted wars of occupation waged in 9/11’s name were an enormous drain on American taxpayers and counterproductive to the goal of stopping terrorism.

Certainly, bin Laden’s killing does not mean the end of al Qaeda, but it does provide another reason to bring our ongoing sacrifice in blood and treasure in Afghanistan to a swift end. Moreover, Americans should be circumspect about planners in Washington expanding the War on Terror to distant enemies in Pakistan, Yemen, the Horn of Africa, and elsewhere. Al Qaeda and its associates have always been manageable security problems, not existential threats to America that require endless war by remote control.

The lesson of 9/11 and its Saudi terrorist financier is that would-be terrorists have reduced their dependence on specific base camps and physical havens. They can plan, organize, and train from virtually anywhere in the world, from Kandahar and Hamburg to Malaysia and Los Angeles. Indeed, the very al Qaeda terrorists responsible for 9/11 not only found sanctuary in poverty-stricken Afghanistan, but also in politically free and economically prosperous countries like Germany, Spain, and the United States. In this respect, policymakers and prominent opinion leaders must stop conflating the punishment of al Qaeda with the creation of stable societies, particularly when propping up corrupt and illegitimate foreign governments and waging counterinsurgency campaigns distracts from the conceptually simpler task of targeted counterterrorism measures to find and eliminate terrorist threats.

Wittgenstein, Private Language, and Secret Law

One would like to say: whatever is going to seem right to me is right. And that only means that here we can’t talk about ‘right.’ — Ludwig Wittgenstein, Philosophical Investigations §258

Among the arguments for which the great 20th century philosopher Ludwig Wittgenstein is famous, perhaps the best known—and most controversial—is his argument for the impossibility of a truly “private language.” Since Wittgenstein’s own language was, if not quite “private,” notoriously opaque, it’s a matter of some controversy exactly what the argument is, but here’s a very crude summary of one common interpretation:

Language is, by it’s nature, a rule-governed enterprise. Under normal circumstances, for instance, I use words correctly when I say “there’s a yellow school bus outside,” just in case there is a yellow school bus outside. If, instead, there’s a blue Prius, then I may be lying, or trying to make some sort of signally unfunny joke, or confused about either the facts or about what words mean—but I am, one way or another, using the words “incorrectly.” And indeed, the only way words like “yellow” and “school bus” can have any specific meaning is if they’re correctly applied to some things, but not to others.

Now suppose I decide to invent my own private language, meant to describe my own internal sensations and mental states, maybe for the purpose of recording them in a personal diary. On the first day, I experience a particular sensation I decide to call “S,” and record in my diary: “Today I felt S.” As time passes, on some days I write S to describe my private sensations, and on other days maybe I come up with different labels—maybe T, U, and V. This certainly looks like a private language, but there’s a problem: each time I write down “S,” the idea is suppose to be that I’m recording that I had the same sensation I had the first day—S—and not T, U, or V. But what’s the criteria for “the same”? What makes it true that my sensation on day 27 really is “more like” the sensation S that I had on day 1, and not V, which I first had on day 16? How do I know that this new sensation is really an S and not a V? (Say S was an itch in my hand; will I be correct to use S to refer to an itch in my shoulder? Or a pain in my hand? Or for that matter a pain in my shoulder?) The only criterion is that it seems or feels that way to me. But in that case, I’m not really engaged in a rule-governed language system at all, because in effect S applies to whatever I decide it does. Since I can never really be wrong, it doesn’t really make sense to say I’m ever right in my use either. Since the terms are truly private, there’s no difference between “correctly applying S” and “specifying in greater detail what S means.” What looked like a “private language” was actually just a kind of pantomime of a true, rule-governed language.

I found myself thinking of Wittgenstein and his private language argument, oddly enough, when thinking about the various forms of “secret law” and “secret legal interpretations” that increasingly govern our endless War on Terror. Consider, for instance, the secret legal memorandum justifying the assassination of Anwar al-Awlaki, discussed in an October 8 New York Times piece:

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

Whether or not one agrees with the substantive principle articulated here, this at least sounds like a real rule limiting the discretion of the executive. Except…who decides when a capture is “not feasible” (as opposed to merely risky, costly, or inconvenient)? The same executive who is meant to apply and be bound by the rule. Who determines when the threat posed by a citizen is “significant” enough to permit targeting? Again, the executive.

This is not, one might object, a wholly “private” interpretive problem, because the Office of Legal Counsel provides some kind of quasi-independent check: it will occasionally tell even a president that what he wants to do isn’t legal. But in that case, the president can simply do what Barack Obama did in the case of his intervention in Libya: keep asking different legal advisers until one of them gives you the answer you want, then decide that the more favorable opinion overrides whatever OLC had concluded.

Similar considerations apply to the “secret law” of surveillance. The FBI may issue National Security Letters for certain specific types of records—including “toll billing records”—without judicial approval, but these secret demands must at least be “relevant to an authorized investigation.” A weak limit, we might think, but at least a limit. Yet, again, the apparent limitation is illusory: it is the Justice Department itself that determines what may count as an “authorized investigation.” When Congress initially passed the Patriot Act a decade ago, an “authorized investigation” meant a “full investigation” predicated on some kind of real evidence of wrongdoing. Just a few years later, though, the attorney general’s guidelines were changed to permit their use in much more speculative “preliminary investigations,” and soon enough, the majority of NSLs were being used in such preliminary investigations. Needless to say, “relevance” too is very much in the eye of the beholder.

In most of these cases, the prospects for external limitation are slim. First, of course, anyone who disagreed with the executive’s secret interpretation would have to find out about it—which may happen only years after the fact in whatever unknowable percentage of cases it ever happens at all. Then they’d have to overcome the extraordinary deference of our court system to assertions of the State Secrets Privilege just to be able to have a court consider whether the government had acted illegally. In practice, then, the executive is defining the terms of, and interpreting, the same rules that supposedly bind it.

The usual thing to say about this scenario is that it shows the importance of checks and balances in preventing the law from being perverted or abused. If we think there is at least a rough analogy between these cases and Wittgenstein’s diarist writing in a “private language,” though, we’ll see that this doesn’t go quite far enough. What we should say, rather, is that these are cases where “secret law,” like “private language” is not merely practically dangerous but conceptually incoherent. They are not genuine cases of “legal interpretation” at all, but only a kind of pantomime. Perhaps what we should say in these cases is not that the president or the executive branch may have violated the law—as though there were still, in general, some background binding principles—but that in these institutional contexts one simply cannot speak of actions as “in accordance with” or “contrary to” the law at all.  Where the possibility of external correction is foreclosed, the objectionable and unobjectionable decisions alike are, inherently, lawless.

Waterboarding, Consent, and Rape

Former Vice President Dick Cheney appeared at AEI today to promote his book and again made the claim that waterboarding detainees is not torture because we use this technique on our own troops. As he put it:

“Another key point that needs to be made was that the techniques that we used were all previously used on Americans,” Cheney went on. “All of them were used in training for a lot of our own specialists in the military. So there wasn’t any technique that we used on any al Qaeda individual that hadn’t been used on our own troops first, just to give you some idea whether or not we were ‘torturing’ the people we captured.”

This isn’t a new argument. Plenty of other folks have argued that, because we subject members of the military to waterboarding in Survival, Evasion, Resistance, and Escape (SERE) School (the military’s POW prep course), waterboarding detainees is not mistreatment.

It’s also a nonsensical argument.

The difference is consent. What one person consents to in one set of conditions does not make the same treatment, without consent and in other conditions, somehow less invasive or less illegal under domestic and international law. I was not waterboarded when I attended SERE school, but I endured treatment I wouldn’t willingly accept in other circumstances. If you want to waterboard me, you’d best be ready for a fight.

Export Cheney’s logic to sex. Consenting adults have sex and it’s legal, enjoyable, and essential to the survival of the species. If you accept the premise that, because you can have sex with someone with consent, it is always legal and moral to have sex with others, you’ve just declared that rape is not a crime.

Setting aside the issue of consent, waterboarding was clearly recognized as a criminal act by the laws of war and domestic statute well before we interrogated KSM. We prosecuted our own soldiers for using controlled drowning (the “water cure” and waterboarding) in the Spanish-American War and in Vietnam. We prosecuted Japanese soldiers for using waterboarding after World War II. We prosecuted a sheriff in Texas for waterboarding confessions out of prisoners.

I wrote a piece for the Los Angeles Times a few months back spelling out how Cheney isn’t arguing with Obama here. He’s reliving a battle he lost within the Bush administration:

The legal framework underlying waterboarding collapsed during President George W. Bush’s tenure. The White House Office of Legal Counsel in 2004 withdrew the memoranda that authorized waterboarding. The Detainee Treatment Act of 2005, sponsored by former POW and torture victim Sen. John McCain (R-Ariz.), barred “cruel, inhuman, and degrading” treatment of any detainee in military custody. There may be an argument that waterboarding isn’t torture, but there’s no argument that it’s not cruel, inhuman and degrading…

The Supreme Court put the nail in the coffin with its Hamdan vs. Rumsfeld decision in 2006. The real import of the ruling was not that Congress had to authorize military commissions (it quickly did) but that the Geneva Conventions apply to the armed conflict with Al Qaeda. The application of the laws of war, which allow broad power to kill your enemy but provide no authority to mistreat him, brought down the legal house of cards that authorized coercive interrogation. Bush issued an executive order the next year that banned the bulk of enhanced interrogation techniques. Obama followed suit with his own order applying stricter military standards to the intelligence community.

Read the whole thing. Read some more on waterboarding and detainees here, here, and here.

President Obama’s ‘War on Fun’

My DC Examiner column this week focuses on Barack Obama’s transformation into our National Noodge, nudging, shoving, poking and prodding Americans into healthier lifestyles via the powers of the federal government.

A year ago, the New York Times got all excited about the “new age of regulation” the administration was busy ushering in. The president had elevated “a new breed of regulators”: folks like regulatory czar Cass Sunstein, who wants to “nudge” Americans toward healthier consumption choices, and CDC head Thomas Frieden, who, as NYC health commissioner, proclaimed ”when anyone dies at an early age from a preventable cause in New York City, it’s my fault.”

Today’s column tracks how this killjoy crusade is playing out:

Quitting smoking was “a personal challenge for [Obama],” the first lady explained recently, and she never “poked and prodded.”

Of course not. It’s obnoxious to hector your loved ones. “Poking and prodding” is what good government does to perfect strangers. And that’s what the Obama administration has been doing, with unusual zeal, for the past 2 1/2 years.

You’re not a real president until you fight a metaphorical “war” on a social problem. So, to LBJ’s “War on Poverty” and Reagan’s “War on Drugs,” add Obama’s “War on Fun.” Like the “War on Terror,” it’s being fought on many fronts…

Among them: graphic warning labels for cigarettes; a ban on clove cigarettes and possibly menthols; shutting down online poker sites; banning caffeinated malt liquor; mandatory menu-labeling and ratcheting down allowable sodium levels in food to “adjust the American palate to a less salty diet.” Even healthy “real food” aficionados can find themselves in the crosshairs, as Dan Allgyer, an Amish farmer selling raw milk discovered last month, when FDA agents and federal marshals raided his farm.

Last year, in a remarkably silly column entitled “Obama’s Happiness Deficit,” Washington Post editorial page editor Fred Hiatt wondered whether the president’s political difficulties stemmed from the fact that “he doesn’t seem all that happy being president.” I couldn’t care less whether Obama’s enjoying his job. He asked for it, he got it. But if he isn’t having fun, he shouldn’t take it out on the rest of us.

Top NSA Mathematician: ‘I should apologize to the American people. It’s violated everyone’s rights.’

If you’re a telecommunications firm that helped the National Security Agency illegally spy on your customers without a court order, Sen. Barack Obama will happily vote for legislation he once promised to filibuster in order to secure retroactive immunity. If you’re implicated in the use of torture as an interrogation tactic, you can breathe easy knowing President Barack Obama thinks it’s in the country’s best interests to “look forward, not back.”  But if you were a government official spurred by conscience to blow the whistle on government malfeasance or ineptitude in the war on terror?  As Jane Mayer details in a must-read New Yorker article, you’d better watch out! This administration is shattering records for highly selective prosecutions under the espionage act—and the primary criteria seems to be, not whether national security was harmed in any discernible way by your disclosures, but by the degree of embarrassment they caused the government.

The whole thing is fascinating, but I’m especially interested in the discussion of how electronic surveillance tools that came with built-in privacy controls were tossed in favor of more indiscriminate programs that, by the way, didn’t work and generated huge cost overruns. The most striking quotations come from disillusioned Republican intelligence officials. Here’s Bill Binney, a top NSA mathematician and analyst, on the uses to which his work was put:

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the “little program” that he invented to track enemies outside the U.S., “got twisted,” and was used for both foreign and domestic spying: “I should apologize to the American people. It’s violated everyone’s rights. It can be used to eavesdrop on the whole world.”

One GOP staffer on the House Intelligence Committee recounted an exchange with then-NSA head Michael Hayden:

[Diane] Roark, who had substantial influence over N.S.A. budget appropriations, was an early champion of Binney’s ThinThread project. She was dismayed, she says, to hear that it had evolved into a means of domestic surveillance, and felt personally responsible. Her oversight committee had been created after Watergate specifically to curb such abuses. “It was my duty to oppose it,” she told me. “That is why oversight existed, so that these things didn’t happen again. I’m not an attorney, but I thought that there was no way it was constitutional.” [….] She asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.”

Remember, these aren’t hippies from The Nation,, or ACLU attorneys, or even (ahem) wild-eyed Cato libertarians. They’re registered Republicans appalled by the corruption of the intelligence mission to which they’d devoted their professional lives.

Bin Laden’s Death and the Debate over the U.S. Mission in Afghanistan

Osama Bin Laden’s death marks a significant achievement in the fight against al Qaeda. It also highlights the fact that our ostensible objective for continuing the war in Afghanistan has been achieved. Although some lawmakers have been quick to claim that bin Laden’s demise proves that our nation-building mission is showing signs of success, others recognize that this momentous achievement justifies scaling down our presence in Afghanistan. Indeed, rather than expansive counterinsurgency campaigns, targeted counterterrorism measures would suffice.

It is encouraging that Republican members of Congress are questioning the mission. Senator Richard Lugar (R-IN), ranking Republican on the Senate Foreign Relations Committee, expressed his concern yesterday:

[Senator Lugar] said Afghanistan no longer holds the strategic importance to match Washington’s investment. He cited recent comments from senior national-security officials that terrorist strikes on America are more likely to be planned in places like Yemen.

Lugar raised concerns that U.S. policy on Afghanistan is focused more on building up its economic, political and security systems. “Such grand nation-building is beyond our powers,” he said bluntly.

Most poignantly, he summed up the problem as such:

With Al Qaeda largely displaced from the country, but franchised in other locations, Afghanistan does not carry a strategic value that justifies 100,000 American troops and a $100 billion per year cost, especially given current fiscal constraints.

These realities have neither shifted the GOP establishment’s talking points on defense, nor the Obama administration’s “stay-the-course” policy in Afghanistan. Nevertheless, this debate, especially among Republicans, is important. As my Cato colleague Ben Friedman has pointed out in original research, the Tea Party Republicans that swept into office last November may have good instincts, but have done little to shift the overarching debate about the efficacy of nation-building. Perhaps increased calls for rethinking the mission will have to come from senior GOP types like Lugar. As my other Cato colleague, Gene Healy, trenchantly notes, “There was always something odd about conservatives jumping from ‘they hate us because we’re free’ to ‘if we make them free, then they won’t hate us.”

Cato scholars have been making the case for de-escalation from Afghanistan for the past several years. Hopefully, more Republicans will recognize, as most libertarians already do, that it is inconsistent to espouse talk of fiscal responsibility and limited government at home while engaging in social engineering and nation-building abroad. More republicans should recognize that there is nothing conservative about wasting taxpayer dollars on a mission that weakens America economically and militarily. As Cato founder and president Ed Crane has argued, it’s time for the GOP leadership to return to its non-interventionist roots.

Since 9/11, America’s mission in Afghanistan has evolved dramatically. It’s gone from punishing al Qaeda and the Taliban to paving roads and building schools. To imagine that the U.S.-led coalition can create a functioning economy and establish civilian and military bureaucracies through some “government in a box” highlights the ignorance and arrogance of our central planners in Washington.

Let’s hope that the landmark death of Osama bin Laden brings a swift end to our ongoing investment and sacrifice.

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