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All Lawyered Up in Washington
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The “unitary executive” crowd that came to the fore under George W. Bush argue basically that because the government does something it is therefore ipso facto legal. It is not a new concept though one heard only intermittently in the United States where constitutional checks and balances were long the Gospel prior to 9/11. Ironically, the juridical theory justifying an all-powerful executive was first described by Carl Schmitt, the German jurist who defended the legitimacy of the Nazi usurpation of the Weimar constitution, later referred to as the “Fuhrer principle.” In the United States its chief advocates have been John Yoo, Jay Bybee, and Eric Posner. Yoo and Bybee were the authors of several notorious Justice Department memos that stated that torture by the CIA was legal because the government said that it was so. As Yoo put it , “Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President….Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield… If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.” Bybee meanwhile explained that harsh measures in interrogations were perfectly acceptable as long as they did not result in “death, organ failure or serious impairment of body functions…”

One of the ultimate ironies of America’s decline into madness post 9/11 is the way in which lawyers have led the charge to strip the rest of us of our civil liberties, perhaps suggesting that more law schools should require courses in both ethics and civics. A government lawyer tells President Barack Obama that it is okay to assassinate an American citizen overseas while another government lawyer explains how using CIA drones to attack civilians in a place like Pakistan or Yemen is not really an act of war or a war crime. It is always possible to find a lawyer to justify nearly anything while simultaneously making sanctimonious noises about protecting the constitution.

And lawyers know how to pull the wagons into a circle when danger threatens. When the Obama administration began its timid inquiry into CIA torture in 2009 its first step was to exclude all the legal counsel and senior managers from the investigation, meaning that only the lower ranks need apply for possible punishment. It may not have mattered at the end of the day who was in or out anyway because no one was actually punished when the case was quietly dropped in 2012, another feature of post 9/11 governance, but it would have been nice to know that those who actually ordered the torture might somehow be considered as complicit. The Obama Administration euphemized its inaction as going forward, “not looking back.”

And the real charm in how government functions according to the law is the way in which no lawyer actually has to dirty his hands by blowing up a sixteen year old or simulating drowning on a helpless prisoner. That kind of distasteful work is done by someone else while the lawyer signs off on the authorizing document with his gold nib Montblanc fountain pen. It might be referred to as being systemically insulated from the consequences of one action. For those who are interested, Yoo is currently a professor at the University of California at Berkeley and Posner is at the University of Chicago. Their presence in such distinguished institutions guarantees that the next generation of lawyers that adopts their values will also be morally bankrupt. Bybee is a Federal Appeals court Justice.

The ubiquity of lawyers in government (to include 173 congressmen) distorts the public discourse by narrowing discussions of policy to whether something is legal or not. I would suggest that the public would have a much clearer understanding of what is going on if policy formulation were to examine what might actually be effective, though an effectiveness metric would no doubt put a lot a lawyers out of work since they are not very good at delivering a product on time. Why should they be when they can bill by the quarter hour or for every time they pick up the phone?

So let’s forget about whether or not recent activities engaged in by the United States government are legal and let’s instead try to get a handle on whether all the maiming, killing, and wasting of vast sums of money actually produced any positive result. The inevitable question is “Are Americans safer today?” I think most would concede that it is indeed safer to travel by air though the improvement has come about at enormous cost and inconvenience through the creation of a vast bureaucracy that has, ironically, systematically violated the rights of travelers. And it is not very good at its job. Inspectors carrying out audits regularly are able to smuggle weapons onto planes and the few genuine plots that have been thwarted have been foiled by alert citizens.

Apart from that there is little to point to on a national level as travelers report that the American government is now viewed unfavorably in Asia and the Middle East, in countries that once upon a time were very accommodating to US interests. Many foreigners still like Americans as individuals, but the impression is growing that Washington has largely become a reflection of the malignant attitudes of the people, particularly evident in election years when tone deaf expressions like “American exceptionalism” are bandied about and replayed in the overseas media. So the answer to “is one safer?” really depends on where you are and what you are doing.

And then there is the National Security Agency (NSA) spying. In March Director of National Intelligence James Clapper lied to Congress and the people when he asserted that Americans were not being spied on through the existing NSA programs, so the credibility of the government when confronted with its own felonies has to be considered somewhat suspect. But that issue aside, how many terrorist plots against the United States has the vast NSA data mining project prevented? None. General Keith Alexander, head of the NSA, has claimed that 54 terrorist plots had been thwarted in at least twenty countries due to the information provided by the NSA’s PRISM program but he is unusually light on the details of what exactly those plots might consist of. Both he and several supporters in Congress have named only one alleged terrorist who they claim was identified through the program, Najibullah Zazi.

Zazi was an alleged al-Qaeda member living in Colorado who plotted to bomb the New York City subways in 2009 using explosive devices made from hydrogen peroxide, but the Zazi case is itself far from a poster child for the NSA, if one looks at the details. It is being falsely claimed that the government program PRISM intercepted an email from Zazi to a known al-Qaeda website, which led to his identification and eventual arrest. But the fact is that the email address had already been identified by British intelligence as being possibly terrorism connected through a file obtained on a laptop that had been seized in a police operation, information that was passed on to Washington. The correct law enforcement procedure at that point would be to obtain a court order to monitor the site rather than exploiting the blanket authority provided by PRISM, but NSA chose to take the easier route. In short, the US government knew about the website in question but PRISM had nothing to do with the success of the operation.

And then there is the issue of CIA torture. How many terrorists were caught because terrorist suspects were being waterboarded and otherwise abused in Agency secret prisons? None. The exhaustive Senate Intelligence Committee report on CIA torture, which took three years to research, is 6,300 pages long, and is based on review of more than 6 million government documents was endorsed by the Intelligence Committee over a year ago. It has not yet been released to the public due to stalling by CIA, but its conclusions have been leaked. Torture did not produce any information that could not have been obtained by other means and did not result in information that led to discovery of Osama bin Laden. Lying under torture was also prevalent, meaning that it produced a great deal of false information that had to be checked and rechecked. So it was not only a waste of time, but it was actually counterproductive in terms of getting at the truth.

And finally there are the drones and the extrajudicial killing of both American citizens and foreigners. Have they made Americans any safer? Probably not. It is hard to anticipate what a dead Pakistani or Yemeni man might have been planning to do, but evidence suggests that drones produce new terrorists every time they succeed in killing someone. Most recently, a wedding party of 15 was wiped out in Yemen, no doubt endearing the United States to the survivors and their families. If anything, drones have increased the resistance to American policies in the Middle East and South Asia.

So let us consider the opinions of lawyers for what they are. In government, a lawyer exists to enable a bureaucrat to do what he wants while being protected by a legal fig leaf. If one can believe the gobbledygook produced by John Yoo and Jay Bybee, one can believe nearly anything. Have torture, spying on citizens, and assassinations actually accomplished anything? The answer objectively speaking must be no, which means that the government should not be engaging in such activity on behalf of the American people. Mr. Obama might want to make a 2014 New Year’s resolution to that effect.

• Category: Foreign Policy • Tags: CIA, John Yoo, NSA 
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  1. “United States Lawyers”? Aren’t they a collection of hired hands, working for whoever pays their fees? From whose distinguished ranks come most politicians and almost all judges. Had the estimable Signor Giraldi realized, by the way, the United States has more lawyers per capita than any other place on earth, and also more of its citizens in prison–per capita and absolutely–than anywhere else? This is a minimal collation of some hard facts which strongly hint that the problem is structural and systemic, wouldn’t one say?

  2. Perfidious irony – the Constitution dead at the hands of constitutional lawyers. No wonder the Apostle Paul wrote that the law never saved anyone. The best of American constitutional lawyers is now a journalist arguing from exile in Brazil.

  3. BMG says:

    Lawyers are brothers to the businessmen. The end justifies the means; it doesn’t matter who or how many are hurt to reach their personal objective; profit. Shakespeare was so right!

  4. Learning says:

    The other irony is the story on that Al Qaeda has taken Fallujah.

  5. Peter says:

    The most recent “lawyering up” comes from Judge Pauley dismissing the ACLU case against NSA metadata collection. His case is meticulously explained in narrow legalistic terms. There is no doubt of his sincerity and loyalty to defense of the US. However, it steers wide of the moral considerations needed in response to the widespread alarm and lack of understanding amongst those subject to this NSA program. We may be relieved to know that very little of the metadata is examined except by “articulable” cause, in parallel with the Fourth Amendment. But there is cause for continuing distress and distrust for all the reasons Philip Giraldi lays out here, plus due to the murmurings of people like General Hayden over Snowden as “traitor” or of John Bolton that he “ought to swing from a tall oak tree.” Political views and questioning are obviously suspect and endangered to some degree, but to what degree is not clear. Snowden is obviously no terrorist but belongs in the realm of what Pauley says are “those who most fervently dispute [government] policies.” In England The Guardian newspaper is being threatened with the label “terrorist.” As free speech and political expression and questioning grow no wonder there is concern where the metadata program might go.

  6. So, counterproductive policies authorized by these government lawyers have resulted in increased anti-American sentiment around the world and fueled terrorism, resulting in the need for additional anti-terror policies and initiatives and the personnel necessary to their implementation. Clearly, Yoo, Bybee, and Posner rank among the nation’s more accomplished job creators.

  7. Great article. What one has to realize is that with this new body of law, “National Security” law, all these “experts” did was look to the authoritarian/totalitarian state’s legal systems. In the name of protecting us from terrorism, they are building brick by brick an authoritarian legal system of exactly the same sort as all the usual suspects, relying on the specious clam that we are at war.

  8. John Yoo, Jay Bybee, and Eric Posner should be disbarred for their mad interpretation of the U.S. constitution, international law, and morality recognized by the U.S. and most of the world. Their rulings are not only blatantly illogical, they are unconstitutional and thus illegal. Plus, they are overt indications of the willingness of these men to stoop to utter baseness in order to play the game of showing ones cleverness and to please those higher up who control their future promotions. They are base, corrupt, immoral, self-serving men who would destroy the U.S. constitution in order to further their career.
    Exactly what weight do the opinions of these sordid men carry as to actual invalidation of U.S. law? Don’t judges have to rule on these opinions? And in order to overturn laws based on the U.S. constitution, isn’t the Supreme Court the arbiter? Is the president above the law or is he not? If he is above the law, then that should be printed in all newspapers and made clear to the American public.

  9. The Lion says:

    It is interesting the US looks forward in relation to its War Crimes but still prosecutes Nazi war Criminals, I suppose that is just an example of American exceptionalism!

    I also find it interesting that America now considers a Lawyers opinion as LAW, just think somebody in the Presidents legal department decides that a certain act is LEGAL, notwithstanding there are many criminal Prosecutions for the Act, in both the Military courts and the US civilian Courts, as such they are legal precedents, then to top it off there are several international treaties that deal with the matter, Geneva, the Hague, and the anti torture Conventions, then there is Federal Law, yet Yoo and Bybee and others can write an opinion that clearly is in breach of every one of those and it is impossible to get a review in a US Court, and when they are reviewed and Even when the US Supreme Court rules on such matters, those rulings are ignored even by Junior courts, specifically a certain Federal Court in Washington DC!

    Hamdin was specific in relation to the treatment of those captured in Afghanistan, they are at the least article 3 prisoners in other words they are civilians and are to be treated as such! Of course since no prisoner was given an article 5 hearing in Afghanistan Geneva says they are to be considered Article 4 Prisoners of War who have superior rights under Geneva!

    Lets not forget Hamdi which only one Supreme Court Justice ruled against (Clarence) but who’s ruling is totally ignored by the subordinate Appeals Court in Washington!

    All based on a Dubious Legal opinion, one that is based on a premise so bad that it beggars belief! One that those two opinions in fact show is patently untrue, the President does not have the powers “Unitary Executive”, and the President is required to operate within the framework of the Laws of the US Congress, its treaties and the Constitution of the United States!

    Sadly we will not see the Republicans who are the current instigators of the theory, Cheney was spouting it way back in the Nixon Administration, and brought it to the forefront of Presidential policy under President GW Bush nor from the Democrats who are currently using it under President Obama!

    We are seeing currently wholesale abuse of the Constitution and US law by strokes of the pen, from opinions of people who would have trouble holding a real job in a real law firm!

  10. Thomas says:

    “Those who can make you believe absurdities can make you commit atrocities.” Voltaire (1694 – 1778)

    So it would seem that the more things change……… the more they remain the same…

    “Gulf of Tonkin: McNamara admits It didn’t happen.”

  11. Anonymous • Disclaimer says:

    There are more human made laws originated by lawyers with a certain purpose in mind.

    There are also natural laws that cannot be violated without paying a price like gravity; no one can see it but if ignored you make a deep fall!!

    Para-psychology is another natural law : application of para-psychology allows reaching anyone in this world. If properly applied it would give better results than Navy Seals. Besides the application is virtually costless.

  12. Lorraine says:

    “Woe to you lawyers also! For you load people with burdens hard to bear, and you yourselves do not touch the burdens with one of your fingers…. Woe to you lawyers! For you have taken away the key of knowledge. You did not enter in yourselves, and those who were entering in you hindered.”

    This is why I rarely practice law anymore.

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