Subtle Tools: Sour Milk’s 9/11 Memorial

Part Two

“Safety from external danger is the most powerful director of national conduct.  Even the ardent love of liberty will, after a time, give way to its dictates.” —Federalist No. 8 November 20, 1787.

Sour Milk’s 9/11 memorial issue was inspired by the 20th anniversary of the 9/11 attacks and, above all, the recent attempts to revise the legacy of President George W. Bush.  Whenever one of my partisan friends tries to lay the blame for all that ails America in 2021 at the feet of the irresponsible president, Donald Trump, or the incompetent president, Joe Biden, the words of a sagacious, old intelligence officer, a man whose career began with the OSS during World War II, ring in my ears.  “Listen, Sonny Boy!” he growled at me in 2017, “The last American statesman I met was George Marshall!  First, that skirt-chasing governor from Arkansas, then the Bush boy—so stupid his own family didn’t want him to be President—then that affirmative action president!  Now Trump!  No, no, he’s the president we deserve!” 

History should remember President George W. Bush and Vice President Dick Cheney as America’s original “violent extremists.”  In her prescient new book, Subtle Tools:  The Dismantling of American Democracy from the War on Terror to Donald Trump, Karen Greenberg, the director of Fordham University’s Center on National Security, argues convincingly that America’s precipitous twenty-year decline is not the result of a single policy, but rather the post 9/11 creation and implementation of legal, military, and political mechanisms to aid in prosecuting what its architects dubbed “the war on terror.”  According to Greenberg, “subtle tools” like the imprecision and vagueness of language, extreme secrecy, bureaucratic porousness, and the abandonment of norms have “acted as a corrosive blanket smothering the good out of a democracy in turmoil.” [1]

While the decision to send Special Operations teams and CIA’s paramilitary units to Afghanistan to hunt down Osama bin Laden and al-Qaeda foot soldiers was both popular and sound, things took a sinister turn when “the war on terror” morphed into “the global war on terror” and the Bush administration attempted to impose their “Pax Americana” in earnest.  I fully supported America’s punitive American expedition to Afghanistan, but the pivot to Iraq and a war against “evil” seemed nothing short of delusional. 

Karen Greenberg defines one of the most important “subtle tools” as “the degradation of language,” which she defines as “the starting point for political dishonesty and power mongering, and the platform upon which the undemocratic and unlawful policies have been fashioned.”  The statesmen who shaped 20th-century U.S. foreign policy employed international law in an extremely cynical manner, the Bush administration broke from even this ignoble tradition, and replaced the strained strategic legalism of John Foster Dulles with the “God Wills It” messianic unilateralism of the first crusader, Pope Urban II. [2] 

If nothing else, the 9/11 attacks forced America’s international legal duality out into the open for all to see.  Weeks after the attacks, senior Justice Department lawyers convinced President Bush that the “War on Terror” was a new kind of war requiring “a new paradigm” that would render the Geneva Convention’s strict limitations on the treatment of enemy prisoners “obsolete.”  Unlike previous American presidents who claimed to support international law when the outcome was favorable to the United States, President Bush explicitly rejected both long-standing, codified laws of war like the Geneva Conventions and older customary distinctions such as that between soldier and civilian.  The Bush administration pushed aside the military professionals and argued that there were no limits—constitutional or congressional—on presidential authority. [3]   

Brazen disregard for the laws of war was soon elevated to a matter of principle as America began a sordid affair with what Vice President Cheney described as “the dark slide.”  In November, 2001, I wrote a New York Newsday op-ed entitled “Questions Hang Over Military Tribunals.”  I questioned the Bush administration’s executive order establishing military tribunals for the war on terror.  While this was a regressive move, it was anything but unprecedented in U.S. history.  Presidents Washington, Lincoln, the Roosevelts, and others employed primitive forms of political justice during wartime.  However, the Santee Sioux, Jacob Smith, Yamashita, and the Malmedy cases were not our proudest legal hours.  The decision to follow these precedents raised many questions.  “Would ‘probative evidence’ in Bush’s military tribunals include information obtained in mock trials, as done in many of the 1945 military trials?” I asked, “Will prosecutors be allowed to present pseudo-documentary films as evidence, as they were in the Yamashita case?” [4] 

Given what would follow over the next twenty years—renditions, black sites, evidence obtained by torture, the farcical trials at Guantanamo Bay, the Jose Padilla case—my 2001 complaints sound naïve and innocent.  Even though the U.S. Second Court of Appeals compared torturers to slave traders in a 1980 opinion, by the summer of 2002 the United States had redefined torture to include only those acts that resulted in death or organ failure.  According to the new American definition, not even John McCain’s treatment at the hands of the North Vietnamese met the new standard. [5]   

I gained a much deeper understanding of the Bush administration’s “subtle tools” in May of 2002 when I was contacted by Donna Newman and Andrew Patel, the attorneys representing Jose “The Dirty Bomber” Padilla.  Jose Padilla was a U.S. citizen who converted to Islam in prison and was arrested in Chicago on his way home from Pakistan in 2002.  “We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,’ in the United States,” announced Attorney General John Ashcroft, who went on to claim that the arrest “disrupted an un- folding terrorist plot,” one that could have caused “mass death and injury.”  President Bush accused Padilla of “conduct in preparation for acts of international terrorism,” declared him an “enemy combatant.”   The next day, Deputy Defense Secretary Paul Wolfowitz claimed that Padilla “came into this country with the intention, by various means, of killing hundreds and maybe thousands of Americans.”  Padilla’s lawyers and I discussed how definitions of combatants had, from the Santee Sioux Wars to World War II, always depended on nature of the adversary and the war.  Little did I know that I would spend the next five years working on this case as it wound its way to the U.S. Supreme Court. [6]

A sensory deprived Jose Padilla in military custody. Photo: U.S. Navy

The Jose Padilla case was part of President Bush’s larger war on international criminal law.  During the summer of 2002, he unsigned the Rome Statute establishing the International Criminal Court.  A new federal law called the American Service-Members’ Protection Act (better known as the Hague Invasion Act), passed in August and authorized the President to use “all means necessary and appropriate to release US prisoners of the ICC.”  The Bush administration also began suspending aid to countries that refused to give U.S. citizens immunity before the ICC. [7]  

By the fall of 2002, the faint drumbeat for “regime change” in Iraq was growing louder, as were the claims that Saddam Hussein possessed “Weapons of Mass Destruction” and the “existential threat” he now posed to the United States and the world.  I was surprised and disappointed as the elite opinion makers began to parrot the Bush administration’s dubious claims about Iraq.  At the time, Swedish historian and journalist Sven Lunqvist’s aphorism (from his book Exterminate All The Brutes) helped me to understand their cognitive dissonance, “You already know enough.  So do I.  It is not knowledge that we lack.  What is missing is the courage to understand what we know and draw conclusions.” [8]

In the fall of 2002, I reached out to my trusted British colleague and friend, Ed Vulliamy, (author of part 1 of Sour Milk’s 9/11 20th anniversary memorial edition), the Observer’s American correspondent at the time.  We convened for an early dinner at French Roast in Greenwich Village and discussed the Padilla case and the Bush administration’s conspicuous claims about Iraq’s “weapons of mass destruction.”  We decided to look into the situation in Iraq ourselves.  In the coming weeks, we both spoke to sources in the U.S. government who confirmed that the rumors about the invasion of Iraq were true.  When a high level policymaker told me in no uncertain terms, “The decision’s been made, we’re going,” I expressed disbelief, he sighed with professional resignation, “No, no, it’s done.  They’re drawing up the plans now.” 

At roughly the same time, Ed spoke to Mel Goodman, the former head of the CIA’s Soviet desk.  Goodman still had a security clearance and knew that Saddam had no WMDs.  In a series of interviews, the American described how Bush was fabricating “intelligence” to create a fictitious casus belli for a war with Iraq.

Actor Rhys Ifans as Ed Vulliamy in the 2019 film “Official Secrets.” 

I remember Ed’s righteous and incandescent hot rage towards his newspaper’s editors, Roger Alton and Kamel Ahmed, who never published the articles.  Little did we know how close they were to Prime Minster Tony Blair and Downing Street. [9]

Rhys Ifans as Ed Vulliamy in a Scene from British-American film 'Official Secrets'. 

In January of 2003, Katherine Gun, a British intelligence whistleblower, leaked a National Security Agency memo to Observer journalist Martin Bright who shared it with Ed.  The NSA memo proved the U.S. and U.K. were engaged in a secret espionage campaign against various UN Security Council delegations in New York City in an effort to win the votes necessary to give the invasion of Iraq international legal legitimacy.  Gun was arrested for the leak and charged under Britain’s Official Secrets Act.  In the end, the British government was forced to drop the charges during the trial after Gun’s lawyer threatened to use the discovery process to release the British Attorney General’s official legal opinion that the war was illegal. [10]

By the time the United States invaded Iraq in March 2003, extraordinary rendition, secret prisons, indefinite detention of American citizens, domestic espionage, and watch lists were all accepted as facts of life by a stunned and submissive American population who had happily traded their freedom for the perception of “safety.”  In April 2003, Ed (who had covered the first Iraq War) returned to Iraq to write about the civilian casualties during the “liberation.”  Unembedded and without the protection of an invading military force, Ed, his translator, and photographer negotiated the byways of Iraq.  Not only did Ed expose the “liberation’s” large number of underreported civilian casualties, he was one of the first to write about the nation’s growing insurgency.

Initially, the Bush administration took the position that neither the federal War Crimes Act nor the Geneva Conventions constrained U.S. forces in Afghanistan.  Because the United States deemed that nation “a failed state,” they could define both al Qaeda and the Taliban as “illegal enemy combatants” unprotected by Article 3 of the Geneva Convention.  It was one thing for American Special Forces teams to play fast and loose with the laws of war on hot battlefields in the Afpak frontier, the invasion of a sovereign nation, however, was a more complex matter.  Secretary of State Colin Powell, one of the few combat veterans in the Bush administration, warned that the president’s decision to shirk our long-standing commitment to the Geneva Conventions would “reverse over a century of U.S. policy and practice.” Powell correctly predicted the “high cost in terms of negative international reaction” that would have “immediate adverse consequences for our foreign policy.” [11]

Not only did the invasion of Iraq and the growing POW scandals transform Osama bin Laden’s 1998 fatwa against the United States into a prophesy, they were forever transforming America's image abroad.  Anthony Lester of the British House of Lords put it best: “I find it especially dispiriting that the world’s most powerful country and the country that stands for democracy and the rule of law should be setting such a bad example for the rest of the world.” 

However, by the time the war moved to Iraq, “torture’s perverse pathology” had taken root, and soon Army reservists would apply similar standards during the invasion of a sovereign nation.  According to historian Alfred McCoy, not only does torture fail to provide reliable intelligence, it also “leads to both the uncontrolled proliferation of the practice and long-term damage to the perpetrator society.”  We would soon meet “the Abu Ghraib Seven,” or as one key policymaker best described them to me, “the seven soldiers who lost the war in Iraq.” [12]

To be continued…

END NOTES

1.Karen Greenberg, Subtle Tools:  The Dismantling of American Democracy from the War on Terror to Donald Trump, Princeton University Press, 2021, p. 4. 

2.  Ibid.  In my 2001 book, Law and War: An American Story, published months before 9/11, I defined strategic legalism as “use of laws or legal arguments to further larger policy objectives, irrespective of facts or moral considerations. As [Elihu] Root pointed out: ‘It is not the function of law to enforce the rules of morality.’”  One of the main arguments of Law and War was that the American lawyers who came to shape and dominate twentieth-century U.S. foreign policy employed and interpreted international law in this extremely cynical and opportunistic manner.

3.  Testimony of Cofer Black to the Joint Congressional Intelligence Committee, September 26, 2002; https://irp.fas.org/congress/2002_hr/092602black.html; Jameel Jaffer and Amrit Singh, Administration of Torture (New York: Columbia University Press, 2007), A 1–5. “But under this New Paradigm, the President gave terror suspects neither the rights of criminal defendants nor the rights of prisoners of war,” wrote Jane Mayer in her groundbreaking book, The Dark Side : The Inside Story of How the War on Terror Turned Into a War on American Ideals (New York: Doubleday, 2008), pp. 51–52; Bush also announced that the United States could use military force preemptively against terrorist organizations or the states that harbor or support them.  Mayer, The Dark Side, pp. 64 –65. According to one of John Yoo’s 2001 memos, “These decisions, under our Constitution, are for the President alone to make.”

4.  Peter Maguire, “Questions Hang Over Military Tribunals,” New York Newsday, November 21, 2001.

5.  Alfred McCoy, A Question of Torture (New York: Metropolitan Books, 2006). “War means killing people,” the architect of the new American paradigm, John Yoo, explained in a 2007 interview. “If we are entitled to kill people, we must be entitled to injure them.”

6. Lynn Sweet and Frank Main, “Terror Suspect Says He Came Here to Visit Son,” Chicago Sun-Times, June 12, 2002; https://law.justia.com/cases/federal/district-courts/FSupp2/233/564/2310047/;  In Law and War, I wrote, “So what emerges quite naturally, even organically, are two sets of rules for war. When U.S. soldiers faced British and other European armies, they fought according to the customary European rules, with few exceptions. However, when American settlers and soldiers squared off against foes they deemed “savage” or “barbarian,” they fought with the same lack of restraint as their adversaries,” p. 6.  The Padilla case would follow a pattern that would become typical post 9/11 era.  “For so many of these cases, there seems to be much less substance to them than we first assume or have first been told,” terrorism expert Bruce Hoffman explained,  “There's an inherent deterrent effect in cracking down on any illicit activity. But the challenge is not exaggerating what they were up to -- not portraying them as superterrorists when they're really the low end of the food chain." Rather than face another embarrassing Supreme Court review, when Padilla was finally charged in 2005, in a federal court, there was no mention of a “dirty bomb.”  Instead, he was charged with conspiring to murder, kidnap and support terrorism overseas and two counts of providing material support to terrorists. Forensic psychiatrist Dr. Angela Hegarty interviewed Jose Padilla for 22 hours to determine the state of his mental health and concluded that he had “Stockholm Syndrome” and was not fit to stand trial: https://www.democracynow.org/2007/8/16/exclusive_an_inside_look_at_how.

7.  Jaffer and Singh, Administration of Torture, A1–5.

8.  Sven Lindqvist, Exterminate All the Brutes, trans. Joan Tate (New York: New Press, 1996), 2.

9.  Nick Davies, Flat Earth News: An Award-winning Reporter Exposes Falsehood, Distortion and Propaganda in the Global Media; https://www.pressgazette.co.uk/flat-earth-news-fair-comment-or-cover-up/; Ed Vulliamy, “Farewell America,” The Observer, August 23, 2003:  https://www.theguardian.com/politics/2003/aug/24/comment.edvulliamy; https://www.independent.co.uk/news/media/opinion/stephen-glover/stephen-glover-on-the-press-777638.html

10. “US plan to bug Security Council: the text,” The Observer, March 2, 2003: https://www.theguardian.com/world/2003/mar/02/iraq.unitednations1; Mark Townend, “Iraq war whistleblower’s trial ‘was halted due to national security threat,’” The Observer, September 1. 2019: https://www.theguardian.com/uk-news/2019/sep/01/iraq-war-whistleblower-katharine-gun-national-security

11.  Colin Powell, Memo to the Counsel to the President, January 26, 2002.

12.  McCoy, A Question of Torture, p. 112; Scott Shane, “Soviet-Style ‘Torture’ Becomes ‘Interrogation,’” The New York Times , June 3, 2007. “When you say something down the chain of command like, ‘The Geneva Conventions don’t apply,’ that sets the stage for the kind of chaos we have seen,” said retired Judge Advocate General Rear Admiral John Hutson; Mayer, The Dark Side, pp. 240–41; Osama bin Laden’s 1998 fatwa, “Jihad Against Jews and Crusaders”:  https://irp.fas.org/world/para/docs/980223-fatwa.htm