Copying Brig. Gen. John Johns, a friend of mine, and I know of Sy Hersh, with the “context” I’ve added, per Clausewitz, as I shared a bit earlier :-) BG Johns wrote a very nice “blurb” to post on a website whch I must use more of, the Project for the Study of American Militarism, and a prespective book, which these lengthy emails constitute a “rough draft” of. Which I’ve settled on a title for, echoing Arendt: “The Origins of American Fascism,” from a "political theory” analysis. I’ve been helped enormously on that here in having my attention directed to CIA “Influence Operations” specialists, Kendall, Burnham, Buckley, and George Carey’s negation of the Bill of Rights writings, and then by the NatCons here in directing my attention to the writings of National Conservative, and Israeli Settler, Yoram Hazony, and his book, "Conservatism: Revisited,” where he takes the only “legal doctrine” he finds legitimate, to pre-Enlightenment doctrine, “cursing” Enlightenment Liberalism even more than Goebbels did! That’s the “New Right Doctrine,” so celebrated by Trumpites, and Conservatives, as seen in Alito’s Dobbs Opinion, which should scare the hell out of all of us, regardless of opinions on abortion. The “Legal Theory” behind it wipes out all the “Enlightenment Doctrine” of the U.S. Constitution, just like Kendall/Carey strived for so much in their writings and teaching.
Chas beat me in sharing this as I distracted myself with finishing news of the Ellsberg/Chomsky documentary, with my added “context,” as necessary in a Clausewitzian understanding of war :-) And no one can accuse me of “inciting aggressive war,” a war crime, as so-called “right-wing peaceniks,” and their supportive “Non-interventionist Conservatives,” would be culpable for in any legitimate “War Crimes Tribunal,” for their incessant incitement of war against China. A subject I intensively studied as a Guantanamo Defense Attorney as the USG and its officials were, and are, serially committing war crimes, continuing to the present day at Guantanamo (and elsewhere, concealed in Secrecy) with the Military Commissions (the "denial of fair trial rights,” see the “Doolittle Raiders” found guilty of violating Japan’s illicit/illegal “Enemy Airman’s Act,” the equivalent of the U.S. Military Commissions Act of 2006, and 2009, neither of which reversed the illegality of MC Order # 1, drafted by John Yoo principally as I recall). But the other continuing war crime to the present is the impunity the USG has given to its war criminals when Rumsfeld/Cheney, supported by virtually all Republicans, eviscerated the U.S. War Crimes Act, and to compound it, the retaliation against Julian Assange and other Whistleblowers for “revealing” U.S. War Crimes, with that criminality attaching to every President and all the elected officials who colluded in providing that impunity; a war crime in itself!
So I began this this morning by begging forgiveness of Sy Hersh for sharing his Substack article to people too cheap, or ignorant, to subscribe to his site. But it is such a good article on the subject of the nullification of the U.S. Constitution, something near and dear to every Conservative whoever promoted Jeff Sessions’ or Willmoore Kendall’s anti-constitutional, "radical-right legal theory,” upheld by all “Conservative,” and most “Moderate,” Judges who hear Guantanamo cases, that I thought it would bring some cheer here to the “Conservatives” and National Conservatives, to include those cheering on the wars of the latest Goldwaterite currently holding office, to know that the “Rule of Law” is still barred from Guantanamo!
“Goldwaterite” in the case of Biden for both being the last office holder who served under Goldwater as Chairman of the Senate Select Committee on Intelligence, and as can be seen in his nuclear brinksmanship, and his obvious belief that “War is the Answer,” as a shared political theory with Goldwater and Scoop Jackson as ideological founders of bi-partisan Militarism. As well as the many other ideas shared on “Secrecy,” Unitary Executive Theory, “Full Spectrum U.S. Dominance of the World," and nullification of the First Amendment, all ideas first promulgated by Goldwater as an elected official for the RP, picked up by Scoop Jackson for the DP, and now ideas adopted by almost all our political class. That is, all the Republican Party, and most of the Democrats. Look to Goldwaterism, and the earlier manifestation of that, the Republican Hamiltonians who came to prominence in 1898, and set us on the course of attempting “Full Spectrum U.S. Dominance of the World,” as the “Origin” for such pre-fascist, and post-fascist, ideas. That so many Democrats have adopted such ideas doesn’t change the fact that the “Origin” of them is to be located in the “minds” and the “pens/keyboards” of the aforementioned Republicans/Conservatives, who continue to be the most zealous promoters and defenders of such “radical-right” ideas. With one of the “worst of the worst” of these having been Sen. Jeff Sessions, so favorably mentioned in a 2016 email I shared yesterday, leading to the conclusion that . . . .
Before I’m denounced by Jeff Sessions, Willmoore Kendall, and “New Right” adherents/fans as being “unqualified” to make this comment; in my capacity as a Guantanamo Appellate Defense Attorney, I necessarily had, and have, to do a “deep dive” into political and legal/constitutional theory, to understand and explain what has destroyed the “Rule of Law” in this country. Leading us to serial war crimes as National Policy, while I worked to avoid facile, partisan arguments in explaining that. When I got tired of explaining piecemeal that Military Commissions under the “Law of War” were in fact “an instrument of war,” as U.S. lawfare, and identical to the fascist form of “Legal Theory” and Proceedings as Jewish German attorney Ernst Fraenkel explained in The Dual State, as“Martial Law is the Constitution of National Socialist Germany.” Which is what National Conservative Peter Thiel’s favorite fascist ideologist, Carl Schmitt promoted. And so many on the Right, I mean almost all, call for when there is a Republican President. So tiring of a piecemeal approach, I wrote the article at the link below. “Instruments of War” is what Col. William Winthrop, the “Blackstone of Military Law,” identified “Military Commissions” as, and that’s what they remain. Under the right wartime conditions, and without the Yoo/Republican fabricated “offenses,”and “jurisdictional bases, they have a place during actual battlefield conditions of wartime. But not at all today or under our current “wartime conditions,” though so long as our Perpetual War goes on, as it will, as its “Perpetual,” “martial law” provisions like Sec. 1021, will stay in force, as the USG DOD argued in Court when arguing that Noam Chomsky, Daniel Ellsberg, Chris Hedges, et al., can be placed in “Military detentions per the law of war, solely for their “expressive activities.”
But where are the libertarians, like Rand Paul, Massie, et al., on that? Silent! And unwilling to do anything as I found out when I was able to make an in-person appeal to Rand Paul, who led me on that he actually “cared,” about the Constitution. Pure B.S. to get past the moment. That was probably 8 years ago, with not even crickets chirping from that corner.
Military Commissions are what the USG (and Confederate States during, don’t give us any of that Conservative propaganda like comes out of Chronicles Magazine that the Confederates respected “rights,” and only Lincoln violated them, which according to Willmoore Kendall and George Carey, we shouldn’t have anyway) used during the Civil War, formalized as General Orders No. 100, or Lieber’s Code. Which was actually a Martial Law Order, to go with the Martial Law decree which was issued shortly before the issuance of G.O. No. 100, with this the best explanation I have come across of the reality of Lieber’s Code:
Military Commissions, and Lieber’s Code, are in fact the Nullification of the Rule of Law and Constitutional Law, as I explained here when the great Bob Parry was editor of ConsortiumNews, and looked to substantive content, and not “brevity,” as qualification for articles:
Admittedly, “brevity” is not my strong suit, but in fact, “brevity” is a disability when it comes to conveying “theory,” political, or legal, as by “omission,” it serves as self-censorship in “explaining” a complicated subject. Such as Guantanamo.
But Sy Hersh does a great job of that in this article, far better than any attorneys I know have! Sy gets to the essence of them, which is the denial of “due process,” meaning “fair trial rights,” a war crime as I explained above.
But I know Conservatives like Jeff Sessions will say, and have said, the opposite, as they’ve so celebrated Guantanamo and Military Commissions, and made them a totem to be worshipped, just like the AR-15! And they especially have a hard time with understanding complicated ideas, as evidence has been provided here so often, especially after “conditioning" themselves with simpleminded Trump Tweets since 2016!
So please forgive me again Sy for adding some additional context to explain the political and legal theory of whyGuantanamo is still open, and who have been most zealous in maintaining it as a “Law-Free Zone.” Which explains the total absence of actual “due process” (one of those nasty Bill of Rights provisions which Willmoore Kendall and his side-kick George Carey so adamantly opposed. And with Guantanamo, finally succeeded in getting “Lawlessness” installed in at least a portion of American jurisprudence! Which they pushed so adamantly for as Conservatives, like Jeff Sessions, and his like-minded right-wing ideologues.
But here is a particularly astute comment by Sy, which one will never see complained of by a “Conservative,” which is one reason I’ve become so vitriolic toward them and their anti-Constitutional theories!
Quote: "In essence the appellate court adopted the government’s contention that the earlier proceedings against al-Hela and the use of classified intelligence to justify his detention did not violate his acknowledged constitutional right to due process. In so doing, the court was parroting the government’s two main arguments that had been used successfully in scores of prior detainee trials. The first was that federal courts should find that due process does not apply to Guantánamo detainees. The second was that even if you, as the judge, do conclude that due process applies in general to the cases brought by detainees, it doesn’t matter because the detainee got due process anyway.
"All of this has been asserted again and again in federal courts with no sense of irony. al-Hela was told by the judge in the case in hand: “We assume without deciding that the Due Process Clause applies.” Al-Hela’s attorneys responded in a subsequent filing that their client would “continue to serve what amounts to a life sentence, as cruel in its own way as the horrific physical torture that he endured in the CIA’s ‘dark prisons.’”
Prisoners at the Guantánamo Bay prison circa 2002. / Shane T. McCoy/US Navy
It was just another federal court decision dealing a further blow to the fate of one of the few remaining souls at the tormented prison at Guantánamo Bay, a chunk of soil on the southeast coast of Cuba that was a spoil turned over to the United States after its victory in the Spanish-American War. The well-documented horrors that went on in the military prison set up there after the 9/11 attacks became a recruiting tool for disaffected young Arabs eager to demonstrate their hatred of America.
The US Court of Appeals for the DC Circuit ruled in early April that a federal government prisoner, a businessman from Yemen named Abdulsalam Ali Abdulrahman al-Hela, could not be kept locked up if he was no longer deemed to be a threat. But the Court did not rule, as his attorneys wanted, that al-Hela, who is not a US citizen and was captured in a foreign country, had a constitutional right to due process. Al-Hela was initially captured twenty-one years ago in Egypt and, after two years in Central Intelligence Agency black-site prisons, was shipped to Gitmo for further enhanced interrogation—aka torture.
An internal review board eventually cleared him for release to a nation that employs what the board called “appropriate security measures.” But war-torn Yemen, al-Hela’s home, was not considered safe, and he remained in jail. Hence the new trial, whose same old finding once again had to evoke dismay for sixteen other prisoners who have been approved for release but not to a nation considered safe.
In essence the appellate court adopted the government’s contention that the earlier proceedings against al-Hela and the use of classified intelligence to justify his detention did not violate his acknowledged constitutional right to due process. In so doing, the court was parroting the government’s two main arguments that had been used successfully in scores of prior detainee trials. The first was that federal courts should find that due process does not apply to Guantánamo detainees. The second was that even if you, as the judge, do conclude that due process applies in general to the cases brought by detainees, it doesn’t matter because the detainee got due process anyway.
All of this has been asserted again and again in federal courts with no sense of irony. al-Hela was told by the judge in the case in hand: “We assume without deciding that the Due Process Clause applies.” Al-Hela’s attorneys responded in a subsequent filing that their client would “continue to serve what amounts to a life sentence, as cruel in its own way as the horrific physical torture that he endured in the CIA’s ‘dark prisons.’”
I’m far from a lawyer, and I could not grasp the meaning of a court keeping a cleared-for-release detainee of more than two decades in prison indefinitely because of an assumption that due process applies but did not prevail there because he did get due process. One senior member of the defendants’ bar at Gitmo, who asked not to be named, assured me that the al-Hela case would never be accepted by the Supreme Court as now constructed. “What the appellate court was really saying is, ‘Hey, we’re trying really hard to give the guy a meaningful process. We’re doing all we can. But aw, fuck it—the guy who tried the case [in the lower federal district court] tried really hard and that’s enough. He was doing all he could.’ The larger question regarding constitutionally is that the courts are not in a political position to say prisoners at Guantánamo are entitled to due process. It’s not about law.”
Another lawyer with Supreme Court experience asserted that the issue at stake in the al-Hela case “has nothing to do with the law. There’s no objective principles here. It’s the same with abortion, the ‘free press,’ ‘reasonable search and seizure’ and everything else in the Constitution. It’s made up. It’s fugazi. Courts can do anything they want. A court can say there is a right to abortion because there’s some stray clause [in the Constitution] that mentions ‘liberty’ and so that liberty must cover the right to abortion. Another court the next day can say abortion is unconstitutional because the same clause mentions ‘life.’ When you’re a Supreme Court justice you can do anything. It’s 100 percent political. Not the slightest bit of jurisprudence.
“Everyone knows that this Guantánamo business is nuts,” he said. “But not a single person [on a federal court or in the White House] has the balls to take responsibility for being the guy who ended it.”
I wrote about Guantánamo in 2004 inmagazine articlesabout the abuse of inmates at the Abu Ghraib prison in Iraq, one year after President George W. Bush and Vice President Richard Cheney responded to 9/11 by attacking the regime of Saddam Hussein, a despotic leader who happened to harbor the same fear of radical Islamists as did those running the White House. The abuse at Abu Ghraib was eerily similar to that at Guantánamo, in terms of insanely violent interrogation tactics that were not designed to produce effective results. There was a mysterious presence there that confounded Antonio Taguba, the Army major general who was assigned to investigate prisoner abuse at Abu Ghraib in the wake of reporting by CBS and later by me in a series of articles for theNew Yorker. I did not meet and befriend Tony Taguba for more than a year after my reporting that depicted the stacking of naked prisoners in a pyramid with young female Army prison guards simulating masturbation and taking photos. I also reported on a few savage murders of prisoners that were conducted by what were clearly American Special Operations officers, many wearing Army uniforms with no name tags. I later learned from Taguba that he could get no authority during his mandated investigation of the prison abuses to seek out and question any American intelligence officials. It was a mystery left unsolved.
And so I went back a week ago to the story of Guantánamo, where the systemic mistreatment of prisoners—which went on for more than a decade—was known and supported, even specifically endorsed, by a series of commanding officers who said nothing.
A decade ago the Associated Press exclusively reported that there had been a secret CIA facility at Guantánamo known as Penny Lane—another facility at the base was called Strawberry Fields—that was attempting to recruit possible double agents from within the prison community. The AP focused on the danger of training and subsequently releasing the prisoners as double agents. All were promised money. The agency was aware of the risk—double agents are by definition traitors to one cause or another—but its desperate desire for intelligence about those who attacked the Twin Towers and the Pentagon overrode the usual precautions. Nonetheless, the agency’s biggest fear was that a former detainee, once released, would attack Americans.
All of these concerns were real, and misjudgments and mistakes in any CIA recruitment programs were inevitable, albeit rarely made known. But it was an opportunity the agency could not resist, in the wake of 9/11, to find assets among the growing pool of prisoners arriving weekly at Gitmo. The intelligence community that had failed to find and stop the 9/11 bombers before they struck was now under pressure to prevent another attack.
Most of the early arrivals had little or nothing to do with Al Qaeda or the 9/11 attacks but had been swept up by local Afghans and many on-the-make Pakistanis who ventured across the border after learning that the American government was paying as much as $5,000 a head for real or suspected Taliban. One early CIA estimate of the initial prison population at Gitmo concluded that more than half of the first arrivals were not linked to any radical activity. I had previously written about a Middle East analyst for the CIA—we spoke on background, as one invariably does with someone on the job for the CIA—whose native language was Arabic and who had been sent to Gitmo early in 2002 to monitor the day-to-day living conditions of its prisoners. Guantánano had become, over the years since the victory over Spain, an increasingly active and useful Navy base with a perfect harbor, adequate housing for the Marines assigned there, as well as an active air base. It was also lonely, hot, damp, and mosquito-infested—not an especially pleasant place to live and work.
I was not told the CIA analyst’s real mission. He had been sent to Gitmo to watch the prisoners interact and try to isolate those in the growing population who obeyed the rules, avoided conflicts, and seemed to be indifferent to strident jihadism.
“The goal,” I was told recently by someone with direct knowledge of the program, “was to sort out the smart guys who had been caught up in the camp—not the bible thumping fanatics but the dedicated ideologists—and turn them into inside double agents. It was a fantastic success and we were getting a lot of inside information” on the methods and operations of Islamic fundamentalism on the methods and operations of Islamic fundamentalism from prisoners who were turned at Penny Lane. “It was a gold mine.”
“We had really good people in operations—guys who were professionals at recruiting possible double agents and what better recruiting tool could you have when there is a captive audience and you can offer them a prison within a prison. And so we set up our own prison camp—Penny Lane. It offered potential recruits—double agents—a separate room with a TV and three meals a day with friendly guards and nursing, if necessary. The word was passed inside the prison that if you were special and behaved there would be someone for you to talk to.”
The goal was to get vital intelligence from the Arab jihadi world and, the insider said, “It worked. Penny Lane went on for five years or so and it did get us inside,” he said. “There was a better production rate” of useful double agents “out of Penny Lane than we were getting from our normal CIA agents looking for assets in the Middle East.”
The CIA’s recruitment program began to dwindle, the official said, as more and more prisoners arrived and some general high up in the chain of command in Washington decided to put the Army in charge of the prison and the prisoners. “That’s when it went downhill,” he said. “The Army guards were undisciplined and out of control. The mistreatment of prisoners was just insane. It was the same mentality as the world saw at the Abu Ghraib prison a few years later—shaving beards and flinging menstrual blood.” The net effect was to draw the prisoners together in fear and resentment, and inevitably make it more difficult to sort out “the wheat from the chaff”—those prisoners who, with better treatment, could be turned into useful assets once released to their native countries. “What we were doing was not a process that required much thought. But the Army did not think it through.” He said the harsher tactics originated at the top—from the one- and two-star Army generals who were placed in charge of the prison.
The official concluded by suggesting bitterly that Abu Ghraib was the “inevitable result” of what the Army learned at Guantánamo.
“I wrote off the Army after the experience at Gitmo.”
