Monday, December 25, 2006
Thursday, December 21, 2006
New York Times Editorial
Ever since the world learned of the lawless state of American military prisons in Iraq, the administration has hidden behind the claim that only a few bad apples were brutalizing prisoners. President Bush also has dodged the full force of public outrage because the victims were foreigners, mostly Muslims, captured in what he has painted as a war against Islamic terrorists bent on destroying America.
This week, The Times published two articles that reminded us again that the American military prisons are profoundly and systemically broken and that no one is safe from the summary judgment and harsh treatment institutionalized by the White House and the Pentagon after 9/11.
On Monday, Michael Moss wrote about a U.S. contractor who was swept up in a military raid and dumped into a system where everyone is presumed guilty and denied any chance to prove otherwise.
Donald Vance, a 29-year-old Navy veteran from Chicago, was a whistle-blower who prompted the raid by tipping off the F.B.I. to suspicious activity at the company where he worked, including possible weapons trafficking. He was arrested and held for 97 days — shackled and blindfolded, prevented from sleeping by blaring music and round-the-clock lights. In other words, he was subjected to the same mistreatment that thousands of non-Americans have been subjected to since the 2003 invasion.
Even after the military learned who Mr. Vance was, they continued to hold him in these abusive conditions for weeks more. He was not allowed to defend himself at the Potemkin hearing held to justify his detention. And that was special treatment. As an American citizen, he was at least allowed to attend his hearing. An Iraqi, or an Afghani, or any other foreigner, would have been barred from the room.Read the rest HERE.
Monday, December 11, 2006
The blogs were destroyed in September, hours after pictures of Australian soldiers playing with guns surfaced on the internet in the days before the inquiry into Private Jake Kovco's death in Baghdad.
Australia's leading defence think-tank, a civil libertarian and an internet expert have blasted the move as heavy-handed, saying it denied freedom of speech and destroyed Australian history.
"This shows how far behind the times the ADF is," Australian Council for Civil Liberties president Terry O'Gorman said.
"If the American army allows blogs, why doesn't the Australian army? If it does not pose a security threat, why are these soldiers being denied the rights of democracy that they are fighting for?"
Milblogs -- the online term for military weblogs -- emerged as warfare's latest phenomenon.
Across Iraq, soldiers sit at computers typing out their fears, concerns and first-hand accounts of life, sometimes moments after returning from battle.
The Pentagon harnessed the power of milblogs for positive publicity and recruitment.
There are more than 1600 milblogs from 28 countries, according to milblogging.com but Australia has none.
A 26-year-old Sunshine Coast soldier serving in Iraq was placed under review and his milblog "Iraqi Letters" was deleted during the ADF's move to silence servicemen online.
The soldier's writing was positive of the army and at times poetic, detailing the taste of cold water on a dust-parched throat and the friendly ribbing soldiers received after the Socceroos lost to Kuwait.
Minutes after "Iraqi Letters" was destroyed, Brisbane IT consultant and blogging expert Mike Fitzsimons salvaged it for safe-keeping.
"I think it is a valuable piece of Australian history," he said.
"Look at how today's historians revere letters from Gallipoli.
"Deleting the blogs was a total over-reaction from the top.
"It was a heavy-handed political reaction without any further thought." More here
Thursday, December 07, 2006
If you want to understand how it is that "ordinary men," (and women too, of course), can do the horrible things that were done in the Abu Ghraib prison in Iraq ....
"you need only look into a mirror" (as "V" would put it) into what has, for so very long, been done in prisons right here at home, in the United States.
(see video link below)
This documentary series on torture (by British journalists) turns, in this episode, to the prison system in the U.S. to show us how frighteningly similar the homegrown "techniques" of brutality, cruelty, sadism, sexual humiliation, and methodical dehumanization are to what we have come to accept as commonplace in the "rights free zones" run by the U.S. government abroad.
The difference, if any, is merely a matter of degree.
It should come as no surprise that the military police unit at Abu Ghraib was a reserve unit, primarily comprised of people who are prison guards here at home when not wearing (and desecrating) the uniform of soldiers in the U.S. Army.
As a former combat arms soldier, I prefer to think of these inhuman Nazis as wanna-be soldiers - civilian prison guard rent-a-cops playing at being soldiers, mere charlatans who are not my brothers or sisters in arms, who have no understanding of honor, professionalism, the laws of war, or the sacred oath a soldier takes to uphold and defend the Constitution.
I like to think that way to protect myself from the ugly thought that the Army I was a part of, my Army, is becoming like the Nazi bastards and the brutal Imperial Japanese Army troops that two Grandfathers in our family fought against - one at the Battle of the Bulge, and the other at Iwo Jima (a man who lied about his age to join the Marines on December 10, 1941 to fight for his country and for freedom).
This is not what they fought for. This is what they fought against. This is a disgrace and insult to their honor as well as the honor of all who came before them, starting at Concord Bridge. What you will see in this video of what our prison system has become is not consistent with our Founding Declaration that "all men are created equal, and endowed by their creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness."
Monday, December 04, 2006
A Modern Milgram's Shock Experiment: McDonalds Manager Strip Searches Employee On Orders of Fake Cop
The following story shows just how obedient people can still be when they think they are "just following orders" given by an authority figure. This case operates as a modern version of the Milgram Shock Experiments at Yale and the Stanford University Prison Experiments, both of which went a long way toward explaining how it is that brutal regimes get people to simply go along, and how those people can be so casually complicit in abuse of fellow human beings just because an "official" tells them to do it, and also how such functionaries even come to enjoy their work.
An Extra Shift Led to a Terrifying Strip Search, But the Suspect Was Set Free
Nov. 30, 2006 — - It was the shocking story -- and unbelievable surveillance video -- that riveted the nation. A young McDonald's employee humiliated, forced to strip and then to perform a sexual act in the back office, during her work day.
This horrifying ordeal changed one woman's life forever, and put one man on trial, accused of masterminding a bizarre and elaborate hoax. If convicted, David Stewart faced 15 years in prison on charges ranging from solicitation of sodomy, to impersonating a police officer.
Louise Ogborn was always willing to take on extra shifts at McDonald's in Mount Washington, Ky. Ogborn's mother had health problems and had recently lost her job, so the 18-year-old did whatever she could to help make ends meet.
On April 9, 2004, Ogborn offered to work through the restaurant's evening rush, trying to be helpful and make a few extra dollars.
"I was just going to eat and then clock back in and help until somebody else came along that could help," she said.
But Ogborn couldn't have known that her noble gesture would turn into a terrifying ordeal that she says will haunt her for the rest of her life.
A Startling Accusation
Ogborn was called into assistant manager Donna Summers' cramped office and told that Summers was on the telephone with a police officer.
"She said, 'Here she is. This is the girl you described,'" said Ogborn. "She told me to shut the door."
Summers told Ogborn that the officer on the phone had their store manager on the other line and that he had described her and accused her of stealing a purse from a customer.
"I was like, 'Donna, I've never done anything wrong,'" Ogborn said. "I could never steal -- I could never do anything like that. I don't have it in me."
But inside the back office, which had now become an "interrogation room," Ogborn's protests fell on deaf ears.
"She said, 'Well, they said it was a little girl that looked like you in a McDonald's uniform, so it had to be you.'"
It was Ogborn's word against the accusation of a man claiming to be a cop, and she was given a choice: submit to a search or be escorted to the police station.
Listening to 'the Voice'
Ogborn was told to empty her pockets and surrender her car keys and cell phone, which she did. Then the caller demanded that Summers have Ogborn remove her clothes -- even her underwear -- leaving her with just a small, dirty apron to cover her naked body.
Summers says she never second-guessed what she was being asked to do, as she firmly believed the person she was talking to was a police officer. Ogborn says she trusted her manager to do what was right.
Because it was a busy Friday night, Summers had to leave the office to check on the restaurant. The man on the phone demanded that another employee be left to watch Ogborn until the police arrived and Summers chose 27-year-old Jason Bradley.
"He [Bradley] takes the phone and they're telling him to have me do certain things and drop the apron," she said. "He wouldn't have any part of it."
Bradley walked out in disgust, leaving Summers with no one to watch Ogborn. Then the caller made an odd request, asking Summers to call her fiancé to have him watch the girl.
Summers says she did as she was told.
"I honestly thought he was a police officer and what I was doing was the right thing," Summers said. "I thought I was doing what I was supposed to be doing." ....
Sunday, December 03, 2006
By Bernd Debusmann, Special Correspondent
WASHINGTON (Reuters)- When radio host Jerry Klein suggested that all Muslims in the United States should be identified with a crescent-shape tattoo or a distinctive
arm band, the phone lines jammed instantly.
The first caller to the station in Washington said that Klein must be "off his rocker." The second congratulated him and added: "Not only do you tattoo them in the middle of their forehead but you ship them out of this country ... they are here to kill us."
Another said that tattoos, armbands and other identifying markers such as crescent marks on driver's licenses, passports and birth certificates did not go far enough. "What good is identifying them?" he asked. "You have to set up encampments like during World War Two with the Japanese and Germans."
At the end of the one-hour show, rich with arguments on why visual identification of "the threat in our midst" would alleviate the public's fears, Klein revealed that he had staged a hoax. It drew out reactions that are not uncommon in post-9/11 America.
"I can't believe any of you are sick enough to have agreed for one second with anything I said," he told his audience on the AM station 630 WMAL (http://www.wmal.com/), which covers Washington, Northern Virginia and Maryland
"For me to suggest to tattoo marks on people's bodies, have them wear armbands, put a crescent moon on their driver's license on their passport or birth certificate is disgusting. It's beyond disgusting.
"Because basically what you just did was show me how the German people allowed what happened to the Jews to happen ... We need to separate them, we need to tattoo their arms, we need to make them wear the yellow Star of David, we need to put them in concentration camps, we basically just need to kill them all because they are dangerous."
"Those who cannot remember the past are condemned to repeat it."
- George Santayana.
William L. Shirer made these words the epigraph for his epic book, Rise
and Fall of the Third Reich (1959). Now, it seems a frightening number of our
fellow citizens are proving Santayana and Shirer correct. This radio show hoax
shows just how ripe such people are for the scrapping of the constitutional rights
of fellow citizens they consider "dangerous."
Such people, no doubt the same ones who support warrantless surveillance
by the NSA, "enemy combatant status" designations and extraordinary rendition,
are perfectly willing to throw away 800 years of development in liberty, such as
the due process provisions in our Bill of Rights, all in the name of "safety."
And people wonder how "it" could have happened in such a refined and
modern country as Germany. We are now getting our lesson in just how.
Apparently some Americans think the Nazis had the right idea all along, except
that these supporters of an American version of the Nazi system may think the
Nazis just did not have the right people. Other than that, there is no difference
between what the Nazis did to the Jews and what these freaks want to do to
American Muslims. It is structurally an identical system of rights-stripping
and unrestrained powers of arrest, designation as "the enemy" without trial,
internment, and God knows what else. For such people, torture and summary
execution are also not beyond the pale, I am sure. They fail to see that once
you tear down the shield of the Bill of Rights for anyone, even those
"dangerous" Muslims, you tear it down for us all.
That is another lesson of history these idiots will be condemned to repeat.
Friday, December 01, 2006
Wednesday, November 29, 2006; Page A01
The casserole has been canned.
Under a tough new Fairfax County policy, residents can no longer donate food prepared in their homes or a church kitchen -- be it a tuna casserole, sandwiches or even a batch of cookies -- unless the kitchen is approved by the county, health officials said yesterday.
They said the crackdown on home-cooked meals is aimed at preventing food poisoning among homeless people.
But it is infuriating operators of shelters for the homeless and leaders of a coalition of churches that provides shelter and meals to homeless people during the winter. They said the strict standards for food served in the shelters will make it more difficult to serve healthy, hot meals to homeless people. The enforcement also, they said, makes little sense. Read the rest here
Thursday, November 30, 2006
The Humanitarian Law Project had challenged Bush's order, which blocked all the assets of groups or individuals he named as "specially designated global terrorists" after the 2001 terrorist attacks.
"This law gave the president unfettered authority to create blacklists," said David Cole, a lawyer for the Washington, D.C.-based Center for Constitutional Rights that represented the group. "It was reminiscent of the McCarthy era."
Wednesday, November 29, 2006
A Shell Game of Cruelty and Injustice - German Man Kidnapped by CIA; Case Was Dismissed for National Security Now He Asks for Appeal
Man Mistakenly Abducted by C.I.A. Seeks Redress
RICHMOND, Va., Nov. 28 — A lawyer for a German man who was abducted while on vacation in Macedonia and said he was tortured while in C.I.A. custody in Afghanistan urged a federal appeals court on Tuesday to reinstate his lawsuit against the agency, which had been dismissed for national security reasons.
In May, a federal trial judge threw out the suit brought by Khaled el-Masri, who said he was an innocent victim of the Central Intelligence Agency’s program of transferring terrorism suspects secretly to other countries for detention and interrogation. Judge T. S. Ellis III of Federal District Court in Alexandria said that although it appeared a great injustice might have been done to Mr. Masri, he was persuaded by the government that there was no way to even begin a trial without impermissibly disclosing state secrets.
Benjamin Wizner, a lawyer with the American Civil Liberties Union, told a three-judge appeals panel on Tuesday that the government’s position was absurd because what happened to Mr. Masri had hardly remained secret. He noted that the German government was openly investigating whether its officials had played a role in Mr. Masri’s ordeal, and numerous news accounts have quoted unidentified American officials as confirming what happened. More Here
In the Padilla case, the government argues that Mr. Padilla's only redress for his mistreatment while in detention is not dismissal of the charges against him, but only a civil suite for money damages. Well, in the above case of Mr. Masri, an innocent man, we see just what kind of "justice" such a detainee can expect - his civil suit was dismissed for national security reasons!
What a bizzaro version of justice: rather than the State having its case dismissed when it abuses detainees, it is the abused detainee who can expect to have his eventual civil case dismissed, even when it is clear and uncontroverted that he was mistreated.
Welcome to the "due process" shell game, where you can expect to be shifted from one legal track to another at the pleasure of the U.S. government, and government agents will not be held accountable.
In Padilla's case, the government held him for years, incomunicado, without charges, until the Supreme Court was about to review that detention. At that point, simply to avoid judicial review, the government transfered him from military to civilian custody and charged him with a crime a full THREE YEARS after his initial arrest.
In "normal" criminal law, such detention without charges would cause a prompt dismissal of the case against him. But now, in the post-9-11 world we live in, it is entirely possible that the government will be allowed to get away with such outrageous behavior and still prosecute this man for the vague charges of belonging to some jihad recruiting organization.
Tuesday, November 28, 2006
"We need to get ahead of the curve before we actually lose a city, which I think could happen in the next decade," said Gingrich, a Republican who helped engineer the GOP's takeover of Congress in 1994. More here
Come over to the Dark Side! Freedom is dangerous and must be reduced to reduce the danger! Freedom is slavery, slavery is freedom!
ATLANTA -- There is major fallout from the Atlanta Police shootout that left an elderly woman dead – officers are put on leave and the state and the feds are investigating.Atlanta’s Police Chief announced both the FBI and GBI are investigating the shootout. Also, a narcotics team involved is now on paid leave and autopsy results reveal 88-year-old Kathryn Johnston was shot six times. More here
MADRID (Reuters) - Outgoing Defense Secretary Donald Rumsfeld authorized the mistreatment of detainees at
Former U.S. Army Brigadier General Janis Karpinski told Spain's El Pais newspaper she had seen a letter apparently signed by Rumsfeld which allowed civilian contractors to use techniques such as sleep deprivation during interrogation.
Karpinski, who ran the prison until early 2004, said she saw a memorandum signed by Rumsfeld detailing the use of harsh interrogation methods. More here
Tuesday, November 21, 2006
Once my young son, always full of questions, asked his Grandpa John "how many Japanese soldiers did you see go still in your [rifle] sights, Grandpa?" (yes, my son talks like that) Grandpa John, who usually was not at a loss for words, and never passed up an invitation to launch into a good story, just looked away for a moment, in a thousand yard stare, and then looking down at his grandson simply said "too many."
He lived a good long life and we all knew the end was coming, as it always does, but it is still sad and he will still be missed. There are so few left of that generation. So few. If you are lucky enough to have a man such as this still around, then I urge you to slow down, take the time to talk to him, hear his stories, write them down so they will not pass when he does, and learn from his long life. My wife has more about her Dad over at her blog.
Monday, November 20, 2006
"Americans would have to sign up for a new military draft after turning 18 under a bill the incoming chairman of the House Ways and Means Committee says he will introduce next year. Rep. Charles Rangel, D-NY., said Sunday he sees his idea as a way to deter politicians from launching wars.
'There’s no question in my mind that this president and this administration would never have invaded Iraq, especially on the flimsy evidence that was presented to the Congress, if indeed we had a draft and members of Congress and the Administration thought that their kids from their communities would be placed in harm’s way,' Rangel said.
'If We’re going to challenge Iran and challenge North Korea and then, as some people have asked, to send more troops to Iraq, we can’t do that without a draft,' Rangel said."
Rangel is truly living up to ideal of the Democratic party's mascot. The one thing the neocons don’t have enough of is cannon fodder, and this monumental ass of a Democratic “leader” wants to give them just that – all the cannon fodder they can order up, by enslaving people who otherwise have the good sense to not enlist when our nation’s foreign policy is under the control of a cabal of chicken-hawks with a fetish for “pre-emptive” war and empire. Does Rangel really think a draft would have stopped the neocons from invading Iraq?
As for the notion that politicians will hesitate to go to war with a draft in place because it means kids from their own communities will have to fight, Rangel is presuming that Congress will even be consulted. Under the 2001 AUMF, and the broad grant of power Bush has claimed it gave him, he does not think he needs a vote from Congress to go to war. Bush is more likely to send in the troops first, and then ask for Congressional “support” after. And even if the President did ask Congress what it thinks prior to just starting a war, warhawks in Congress have already demonstrated, with a volunteer military, that they don't give a damn about sending kids from their own communities off to die in some sand-pit. Why should they care more about draftees? Does he really think the politician’s own children will actually be drafted and sent off to fight and die? What a fool.
So why is Rangel is so hot for a draft?"He said having a draft would not necessarily mean everyone called to duty would have to serve. Instead, "young people (would) commit themselves to a couple of years in service to this great republic, whether it's our seaports, our airports, in schools, in hospitals," with a promise of educational benefits at the end of service.' (emphasis added).
Ah, there is Comrade Rangel's real motivation, his real wet dream - a communist-style nationalization of all us unwashed masses - the worker bees - for compelled national "service to this great republic" wherever he and his fellow travelers at Party Headquarters think we are best utilized as their resources.
Lenin, Stalin and Mao would be so proud. Of the ten planks of the Communist Manifesto, number eight was "Equal liability of all to labor. Establishment of Industrial armies, especially for agriculture" and part of plank ten was the "Combination of education with industrial production."
Keep your eye on this totalitarian idea of "national service" - with all of our kids enrolled at eighteen into an American version of the Hitler Youth - it is not going away anytime soon. Would-be slave foreman Rangel is not alone in his desire that the federal government own the means of production - your kids. As William Grigg noted back in 1997, in a New American article responding to a similar idea during the Clinton Administration, the idea of National Service is a staple of statist regimes throughout history, whether they be communist (international socialist) or fascist (national socialist) in orientation.
This is where the Far Left truly raps around to meet the Far Right in total agreement that you and your children are merely resources to be exploited by the State, like so many stalks of wheat, so many bricks, or so many yards of lumber. Neo-Marxists within the Democratic Party call for a draft as a tool of "equality" (apparently, equal slavery is fine, so long as it is truly equal, and color-blind) and of course, most modern "conservatives" reflexively support a draft as being the epitome of patriotism.
Never mind that a draft is completely counter to the principles of Liberty and voluntary association which drove the American Revolution and formed the bedrock upon which our Constitutional Republic is based, and is clearly unconstitutional, as I explained at length back on September 9, 2006, when I responded to “military scholar” Edward Bernard Glick's editorial calling for a nearly identical draft for domestic 'civilian" service, as well as for military duty. You are welcome to read my historical and legal analysis in that September article. I will not repeat those arguments here. I will but quote what Ronald Reagan, the man who modern "conservatives" like to evoke as their role model, had to say about the military draft:
"...it rests on the assumption that your kids belong to the state. If we buy that assumption then it is for the state – not for parents, the community, the religious institutions or teachers – to decide who shall have what values and who shall do what work, when, where and how in our society. That assumption isn't a new one. The Nazis thought it was a great idea."You who call yourselves "conservatives" should reflect long and hard on Reagan's words. If you still think a national draft is such a great idea, all I have to say is - of course you do!
Never have such a free people so longed for slavery.
(U.S. Army, Airborne, Retired).
Friday, November 17, 2006
Man Who Joked About Bomb on Singapore Flight Charged Under United Nations Anti-Terrorism Regulations
SINGAPORE (Reuters) -- A 65-year-old Australian man was fined S$10,000 ($6,423) by a Singapore court for uttering the word "bomb" on a flight to Indonesia, The Straits Times reported on Wednesday .... [the man] was charged under the United Nations anti-terrorism regulations, which carry a maximum fine of S$100,000 or up to five years in jail or both. More here
That's right, this man who jokingly asked "where do you keep the bomb?" because he could not find space in the overhead compartment for his bag, was criminally charged under United Nations anti-terrorism regulations enforced by a Singapore court. Evidently, Singapore has passed something called the United Nations Act:
The United Nations Act grants the Minister for Law the power to enact regulations to implement UN Security Council decisions; the United Nations (Anti-Terrorism Measures) Regulations implement specifically UN Security Council resolution 1373 which prohibits all kinds of support for terrorist acts, be it financial or in the form of causing, assisting or promoting such activities. It also defines terrorist act, and a terrorist is any person who commits, attempts to commit, participates in or facilities the commission of any terrorist act. Any violation of the United Nations (Anti-Terrorism Measures) Regulations in Singapore will be prosecuted, as will the act of abetting the commission of an offense outside the country.So now it is not just "national security" that the people of the world are commanded to worship and bow down to in servile surrender of our rights, it is also "world security" with the U.N. telling us what we must do to be "safe."
It is bad enough being subjected to any nation's vague, confusing, and elastic "terrorism" laws and regulations, enacted and enforced by home-grown unelected bureaucratic weenies with Hitler complexes, such as the U.S. bureacratic weenies that slapped felony charges, with possible 20 year sentences, on a couple for the terrorist activity of making out on a flight. But now we also must worry about violating some unknown, vague U.N. "terrororism" regulation - created by unelected bureaucratic weenies with Hitler complexes who answer to no people of no nation on this earth, because they are from the U.N., which is a non-state, wanna-be world government.
I wonder what the U.N. penalty is for such acts of terrorism by members of the "Mile-High" club (you know, that shadowy international organization of non-state-actors that terrorizes the air by subversively getting their freak on while in flight).
If this prosecution of a man in Singapore for violation of U.N. "anti-terror" regulations is any indication of things to come (and I think it is) we will soon be subject to "security" edicts with the force of law that don't even pretend to be subject to our will, as do the U.S. regulations we live under (where we can still delude ourselves into thinking We the People are in charge because we get to cast one measly little vote for either Lying Bastard A or Lying Bastard B every two years).
While I have not heard of any U.S. court applying such decrees from our benevolent masters at the U.N., the fact that any nation's court would do so is not a good sign. And, given the love affair many people in this nation have with the U.N., and the love affair of many U.S. judges with "international law" I think it is very likely that we will see it happen here too.
We are on a collision course with a future in which our lives, liberty, and property will be completely at the mercy of the whims of arbitrary, pervasive, and petty little smurf tyrants in blue helmets, and their domestic fellow travelers, who will scrutinize our every move and statement, looking for "bad" behavior that needs to be harshly corrected by threats of imprisonment, no matter where we travel on this earth. Talk about a terrorist organization of global reach!ibertarian Blogger on Enemy Combatant Status and Military Commissions Act
Thursday, November 16, 2006
The nursery rhyme police - parents to take lessons in reading and singingBy STEVE DOUGHTY and JAMES MILLS Last updated at 00:12am on 14th November 2006
Their children's well-being is at risk 'unless we act', she declared. More here
Wednesday, November 15, 2006
by Stewart Rhodes
NOTE: This article is a work in progress, so check back for the latest version. This article analyzes the extent to which a 1996 law review proposal to apply the law of war to the militias has actually been fulfilled by the Bush Administration after 9-11.
I first wrote this article just before I discussed this issue on the Republic Broadcast Network on Mark Dankof’s talk show. In preparation for that show, I posted the following introduction to that topic, including the relevant links to that 1996 law review article, and to an article written within weeks after 9-11 by John Dean, praising that 1996 article as providing the answer to the question of what system of laws should be applied to terrorist suspects.
When time permits, I will expand on this article.
– Stewart Rhodes
The Plan to Use Tribunals on McVeigh and the Militias
The focus in the “war on terror” since September 11, 2001 has been on Al Qaida and other Islamic terrorist organizations and individuals. Thus, few people realize that the concept of applying the laws of war to terrorists did not originate with the Bush Administration, or only after 9-11 in response to that attack.
The actual origin of this idea of applying the laws of war to terrorists (and terrorist suspects) has its origin in a 1996 law review article called Justice for War Criminals of Invisible Armies: A New Legal and Military Approach To Terrorism. That article was written by two lawyers, Spencer J. Crona and Neal A. Richardson, and was published in the Oklahoma City University Law Review in 1996. (see summary here).
Crona and Richardson proposed applying the laws of war to Timothy McVeigh and to the entire Militia Movement, in addition to Islamic terrorists, such as those involved in the first World Trade Center Bombing. Crona and Richardson asserted that the attack on the federal building in Oklahoma City was an act of war, and that domestic militias were unlawful combatant paramilitary groups that were subject to the laws of war, and could be treated precisely the same as a foreign enemy in wartime, and thus had none of the rights under the Bill of Rights and could be tried by
military tribunals, rather than in civilian criminal trials. According to Crona and Richardson:
It is legally and intellectually disingenuous to provide terrorists the same rights as persons accused of ordinary crimes against society. Our Bill of Rights was designed to protect individuals in society against the arbitrary exercise of government power. It is not meant to protect commando groups warring on society through arbitrary acts of mass violence. We recognize that our proposal may have an adverse impact on the Bill of Rights. Regrettable as this may be, the demonstrable risk of harm to innocent persons posed by terrorism ... comparatively outweighs the speculative risk of such an adverse impact.
This is precisely the same argument that has been used since 9-11, by the Bush Administration and its supporters. But Crona and Richardson were not talking about members of Al Qaida, or suspected members of Al Qaida, or other Middle Eastern or Muslim terrorist suspects. The “commando groups” they talk about in their law review article are the domestic, U.S. militia groups that formed throughout the United States, in nearly every state, during the 1990s in response to the excesses of the Ruby Ridge incident and the Waco Texas Branch Dividian Siege which ended in a fire that killed 76 people, including 21 children.
The militias stated again and again that their purpose was defensive, to defend against possible future federal government abuse of the people – against more Waco style incidents. Even the FBI came to the conclusion that the vast majority of militias were purely defensive, and therefore
unlikely to initiate any violent confrontation with the government.
And yet, to Crona and Richardson, the militias - all of them - and even individuals of like-mind, should be treated as enemy warriors, and subjected to military rules of engagement – an “in kind response” – and then tried by tribunal as war criminals merely for belonging to such organizations, because, according to Crona and Richardson, those involved in setting policy, as well as those involved in actual violence, are also unlawful combatants. And, just as with the current arguments of the Bush Administration, Crona and Richardson held that citizenship is irrelevant. saying:
Citizenship of the accused poses no obstacle. What we are dealing with in the case of modern terrorists, like the saboteurs in Ex parte Quirin, are belligerent agents of either foreign powers or domestic insurrectionist groups committing war crimes.
For Crona and Richardson, citizenship and national origin mean nothing. What really counts is the viewpoint, and the self-identity of a person as belonging to such a “militia” group or merely the act of holding a similar view. That is enough to warrant their being designated as internal enemies. Once so designated, they can be treated precisely the same as an enemy soldier on a battlefield.
And how is an enemy soldier treated? Crona and Richardson did not explain the full ramifications of this doctrine. Allow me.
An enemy combatant can simply be killed on sight. This is the case with any enemy in warfare. There is no requirement that a U.S. soldier attempt to apprehend an enemy soldier. If the U.S. soldier sees an enemy, he can simply shoot that enemy on sight, whether that enemy is an immediate threat to anyone or not. That is what is known as a military rule of engagement.
It is just such a shoot-on-sight rule of engagement that lead to the tragic deaths of Sammy and Vicki Weaver in the Ruby Ridge Stand-Off. After Sammy was shot in the back while running away, Vicki Weaver was shot by a sniper, at long range - a range at which the sniper was not in any danger from Vicki or any other member of her family. The sniper was operating under a rule of engagement that allowed him to fire on all apparently armed individuals in the Weaver party, even if they posed no immediate threat to any officer.
That use of military style rules of engagement was later determined to have been illegal. However, if Crona and Richardson had their way, such rules of engagement would be the norm, not the abhorrent exception. The same is true of the Waco Standoff, where military tactics, equipment, and rules of engagement were used. To many Americans, that was a disaster of government excesses. But under the New Military Order Crona and Richardson envision, such methods would be not only be appropriate, they would be the only way such situations would be handed - as all such actions, against all such people, would be "war," not "law enforcement."
And, as already noted, anyone “captured” and accused of being a domestic terrorist would be considered an unlawful combatant and would not get any process whatsoever in a civilian court . That person would have none of the protections guaranteed by the Bill of Rights– no right to a grand jury indictment, no right to know the charges against him, no constitutional right to a jury trial before a jury of his peers, no constitutional right to confront his accusers, no constitutional right to be secure from compelled self incrimination (including torture), and no constitutional right to appeal a conviction to a civilian court of appeals. A military tribunal, hand selected by the president, any president, would decide his fate. And if convicted, he could be executed by the military.
What if Clinton had listened to Crona and Richardson?
Thankfully for this nation, Crona and Richardson’s proposal to use the laws of war on the militia movement went nowhere back in 1996. As far as I can tell, it was not taken seriously in the legal or political community. There is scant mention of their law review article in the legal literature until after 9-11.
We can only imagine what would have happened if the Clinton Administration had actually attempted to implement this plan. If Clinton had begun declaring members of militias to be “unlawful enemy combatants” and subjected them to military trials and execution, as Crona and Richardson recommended, such an action would have been the worst fears of the militia and patriot movement come true. In such a situation, it is very likely that the militias would have seriously considered active resistance to such a military assault on them by the government.
The message from President Clinton would have been essentially this:
For you people, who oppose the federal government, who form citizen militias, the Bill of Rights is hereby forever suspended, and as "unlawful combatants" you are subject to being shot on sight wherever found, subject to indefinite military detention, under my orders, and subject to the laws of war as applied by a military commission established by me, under my authority as commander-in-chief of the armed forces of the United States. If that military commission finds you guilty, you will be executed, and any possible appeal will only be to me, as the final decider of your guilt or innocence, pursuant to my independent and co-equal Article II powers as commander-in-chief.
No matter how limited the initial application of such a policy by the Clinton Administration, with the militia movement’s worst fears now confirmed they would have considered armed resistance appropriate and even necessary. Thus, even if it only began with one or two people held as unlawful combatants without trial, or one or two small groups, it is very possible that a cycle of action/reaction/action/reaction would have begun. A group resists. The government cracks down harder. More groups resist. The government cracks down harder. And on it would have gone.
But it did not happen because the extreme and dangerous proposal of Crona and Richardson received little attention. However, post 9-11, this idea suddenly came back into the limelight, and the concept of applying the laws of war to terrorists and terrorist suspects has now become official U.S. policy.
The Resurrection of the Plan Post 9-11
Within days of September 11, 2001, the article by Crona and Richardson was noticed by John Dean, former Attorney General and legal commentator on www.findlaw.com. On Friday, September 28, 2001, Dean published his article, Appropriate Justice for Terrorists: Using Military Tribunals Rather Than Criminal Courts. In that article, Dean praises Crona and Richardson’s proposal and cites heavily to their 1996 article, and then tells us this:
While I have drawn on Crona's and Richardson's scholarly analysis, and considered arguments in this column, I have not been able in this space to do it justice, and it is very much worth reading in its entirety. Indeed, I found the article so helpful that I also passed it on to a friend at the Department of Justice, requesting that he pass it on to those currently examining the potential of military tribunals.
That’s right. Dean sent an article making the case for applying military tribunals to McVeigh and the militia movement on to his friend at the Department of Justice, to give it to those considering the use of military tribunals against Islamic terrorists. Thus, whereas Crona and Richardson’s arguments were not taken seriously back in the 90s, they now have been taken very seriously. It is probably impossible to know if their article actually formed the basis for the Bush Administration strategy, but the actions of the Bush Administration have been entirely consistent with what Crona and Richardson recommended." In the end, it does not matter whether the lawyers in the Bush Administration would have figured it out themselves (which is likely). What is important is that a very dangerous, and potentially explosive idea has now been given new life.
The legal, political, and military foundations for what Crona and Richardson only dreamed of in 1996 are now nearly completely in place. The very same Supreme Court case, Ex Parte Quirin, that Crona and Richardson relied on for their “new legal and military approach to terrorism,” has formed the basis for the Bush doctrine that does the same thing. And now, with the Supreme Court’s 2004 Hamdi decision, and with the Decision of the Fourth Circuit regarding the military detention of Jose Padilla (who was "captured" on U.S. soil), Ex Parte Quirin has been breathed new life, and has been applied to non-state actors, in an undeclared war on a tactic - terrorism - wherein anyone on the planet may be an “enemy.”
Thus, while it was a real leap for Crona and Richardson to argue from the application of the laws of war to eight German soldiers in Quirin (men in the armed forces of a nation with which we were in a declared war) to applying those laws to anyone accused of terrorism (to non-state actors, whether groups or individuals), that leap has now been made.
In the context of a “war on terror” against Al Qaida, the Bush Administration has applied
Once so designated, so the argument goes, that person is deemed to be utterly without rights; with no procedural rights whatsoever under our Bill of Rights, under our laws, or under any law other than what procedural “rights” the President may grant, and devoid of any right to challenge that designation in a civilian court. Further, that person can be tried by a military tribunal hand picked by the President, and if found guilty, can be executed, with the only appeal being to the President himself. This has been the consistent claim of the Bush Administration, and the battle between its supporters and its opponents has been over the degree of this power, and also over whether any other branch of government can constrain this power.
The Administration’s lawyers have consistently claimed that this “war power” is essentially without limit, as it is a power stemming directly from Article II of the Constitution and therefore no other provision in the Constitution, not even the Bill of Rights, no other branch of government, and certainly no law, can impede this power. The claim is that in war, the enemy has always been subject to military jurisdiction and the laws of war. Military combatants - soldiers - are not dealt with by application of civilian courts or civilian laws, and do not have a right to all of the procedural protections that go with such courts. Instead, soldiers are under an entirely separate military system of justice. From this, the argument then asserts that in war, the president, as the commander in chief, the highest officer in the military, alone is the supreme commander of the troops, and he alone has the constitutional power to engage the enemy under the international laws of war, and not even Congress can impede the president’s use of his constitutional Article II powers (which are the powers to wage war successfully).
In fact, in its pure, undiluted form, the argument of the Bush Administration is that the president has an inherit and independent power to, all on his own, determine when we shall go to war, when we are at war, and thus, what is war. And, just as he has an independent power of determining when we are in a state of war, he can also determine who is the enemy.
And, so the argument goes, the attack on 9-11 was an act of war, and we are at war with terrorists and terrorism. And so, we can and must treat terrorists as a military enemy. From this, it is a short leap of logic to state that as terrorists are the enemy in wartime, they fall under military jurisdiction and are subject to the laws of war, as military enemies always have been throughout history. And so, a suspected member of Al Qaida is the same as a Japanese or German soldier during World War II.
That suspected Al Qaida member can be placed in military detention for the duration of the armed conflict (as long as the war on terror lasts) and can be tried by a military tribunal for any violations of the laws of war. Further, as the suspected member of Al Qaida does not follow the laws of war – does not wear a uniform with an insignia recognizable at a distance, is not in a chain of command under an officer responsible for his actions, does not carry arms openly, and does not comply with the laws of war. Thus, so the argument goes, such a person is always in violation of the laws of war.
When the War on Terrorism Turns Inward
What will happen, with all of the structure in place for Crona and Richardson’s plan, the next time there is a serious domestic terrorist incident, like the Oklahoma City bombing? Will a future president, say Hillary Clinton, be tempted to go all the way and apply the laws of war to suspected domestic terrorists, and to the militia movement? This is possible. In a poll taken in October of 2001, in affiliation with the Kennedy School of Government at Harvard, over 1,000 Americans were asked if they “Think a military tribunal should have been used to try Timothy McVeigh for bombing the Murrah Federal Building in Oklahoma City? 23% said yes, and 70% said no. So, five years after Oklahoma City, and right after 9-11, nearly one in four said “yes” to military tribunals for accused domestic terrorists like Timothy McVeigh. And that was before the Bush Administration had applied the concept of enemy combatant status to U.S. citizens, and before the Supreme Court had ruled, in Hamdi, that such designations are constitutional (at least for citizens captured in Afghanistan), and this was before the 2006 Military Commissions Act, which defines an enemy combatant in extremely broad terms.
If another domestic incident like Oklahoma City occurs, it is very possible that a significant percentage of the population, when polled, will favor tribunals for the suspects. If that happens, and particularly if members of one of the militias are actually subjected to military detention and trial, we may see that cycle of violent reaction and government counter-action begin. If that happens, then God help us, because it may spiral out of control beyond what the government officials who decide such a course expect. Just as the resistance in Iraq was far stronger than anticipated, and has spiraled out of control, so too would a domestic application of the laws of war trigger a resistance that will grow, and become stronger and stronger as time goes on. And just as the Bush Administration has stubbornly refused to even acknowledge that any Iraqi resistance fighters have any legitimate reasons for resistance –and are always called “terrorists” – so too is it very possible that a future president Hillary will also stubbornly refuse to acknowledge that any militia or patriot group or activists has any legitimate reasons for resistance. She too is very likely to dismiss any and all who oppose her actions as “terrorists” or terrorist supporters, and she too is very likely to only fuel further resistance.
We must pull ourselves back from this idea of applying the laws of war to U.S. citizens (and to legal residents). If we don’t we risk not only a slow slide into a military style dictatorship or police state, as others have predicted, but a far faster slide into a civil war/domestic revolt sparked by an arrogant and foolish application of the Bush doctrine of enemy combatant status to domestic groups. This is a ticking time bomb, and if it goes off, it may be impossible to control the spiral out of control.
November 15, 2007