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The Doctrine of Preemption Comes Home

by danps Sat Sep 6th, 2008 at 05:18:58 AM EST

Lawlessness is typically associated with Molotov cocktail-throwing anarchists, but a far more threatening variety has been methodically implemented at the top levels of our government

For more on pruning back executive power see Pruning Shears.

No Associated Press content was harmed in the writing of this post

In the last two weeks we have seen multiple examples of what civil liberties advocates have been warning about over and over again.  The infrastructure of the police state, put together behind the scenes and with secret rooms and fusion centers, was put on display in a number of different places.

In the decades before 9/11 we became accustomed to being a nation with a law enforcement mindset, meaning that almost everything that happened domestically - even terrorist attacks against us (both foreign and domestic) - were treated as crimes  The response was to use all legal resources at our disposal to find, detain, try and convict those responsible.  And by the way, it worked.  After 9/11 our leaders made it clear (via) that the old ways no longer were effective because it caused us to ignore threats while they gathered.  They claimed we were therefore geared towards prosecuting crimes after the fact instead of preventing them in the first place.  This is the Original Lie in the War on Terror.  In fact, "we" were not being complacent at all.  There were government agencies tracking terrorist activity and in some cases frantically trying to get the attention of the White House.  The American intelligence bureaucracy was performing well enough to identify threats and send word of them through the proper channels.  The problem was not the blinkered outlook of the CIA or FBI but that of the President.

Such catastrophic negligence should have been the end of the his tenure.  His abdication of responsibility was the highest of crimes, but he did not have enough honor to say "the buck stops here", accept the blame and let the chips fall where they may.  Instead he brazened it out.  He used the immediate national impulse to rally together and support our leaders as an opportunity to create a new paradigm, one not founded in law but in might.  In the name of preemption - which everyone but our top levels of leadership had already been engaged in - he urged us to accept a new America that would prioritize striking out at those who would kill us before they could complete their work.  Which, again, our agencies already had.

So the administration went below the surface and began to secretly capture, hold and torture those who were thought to be enemies.  The important wrinkle here was not that we were going after them - we had been doing so for years - but that we now did so behind the scenes, with no regard for domestic or international law.  (Please note:  Lying about an affair during a deposition and wholesale repudiation of treaties, conventions, the Constitution and fundamental morality are entirely different species of contempt for the law.)  They approach the legal system not with hostility but indifference, the way an agnostic regards God.  All they want is to be told they can do whatever they want.  As Jane Meyer quoted an anonymous former Justice Department lawyer (p. 224), "[t]hey didn't want serious legal advice.  They liked the answers they were getting."  They undertake a course of action with not the slightest thought of whether or not it is legal, or whether our system of justice can effectively process the results later.  We will never get a satisfactory disposition for those locked away in our secret places because there was never any intent to expose them to the legal system.

The problem is, an attitude like that is hard to keep quarantined.  The torture and cruelty that started on the battlefields of Afghanistan didn't appear in Guantánamo by coincidence; it was by design.  The use of the same reverse engineered SERE tactics in Guantánamo and Abu Ghraib is not some fantastic synchronicity like Newton and Leibniz simultaneously developing the principles of integral calculus.  Instead it was created and spread almost instantaneously because once you have hijacked the Office of Legal Counsel do nothing more than dispense golden shields you have functionally done away with the law; and where law does not exist there is no external obstacle to barbarity.

We did not insist on a full accounting after 9/11, and those in charge were emboldened.  We did not insist on transparency when post-9/11 abuses started to come to light, and our leaders realized how powerful fear could be.  We have averted our eyes every time we have been told we needed to for our own safety, and each time the lawlessness grew.  It now is visible in the wildly disproportionate show of force in Minnesota and its conflation of peaceful assembly with riot, in the Blackwater mercenaries paid to roam the streets of New Orleans and in the makeshift detention facilities of Mississippi and Iowa.  And yet we continue to look away, and continue to submit.

by danps (dan at pruningshears (dot) us) on Sat Sep 6th, 2008 at 05:19:19 AM EST
Hmm, I hate the idea that syaing this makes me a conspiracy theorist, but there are several things to point out.

Dick cheney has always believed in the Unitary Executive, the Imperial Presidency. Nixon believed that he was above the law, "..if the President does it, it's legal..". This was Cheney's maxim too.

But I guess he realised that in order to implement his ideas he had to create some national ememrgency. thus it was that almost as soon as bush was elected, Cheney was stomping around trying to start wars. China, Iraq, anyone would do so long as he could pretend the US was being attacked and he could emergency powers. 9/11 was a gift to that plan.

It wasn't negligence, it was deliberate. The holding of joseph Padilla was done to demonstrate contempt for the law and they got away with it. Guantanamo was done to push the boundaries, they got away with it. FISA, the legal system being pumped full of Regent University alumni. The firing of the competent, the elevation of the ideolgical, the jailing of opponents. all done to test and extend the level of personal control Bush (and therefore Cheney) had over the system.

They now effectively ignore the requests of the Houses, because there is nothing anybody can do to impose a view upon them.

But don't think this is a novelty. Clinton did extraordinary rendition. Torture has been part and parcel of US techniques since WWII, it's just never been promoted as the more moral position before.

But while you have two political parties of pro-corporate militarist fervour, there will be no change.

keep to the Fen Causeway

by Helen (lareinagal at yahoo dot co dot uk) on Sat Sep 6th, 2008 at 09:43:34 AM EST
I must be a conspiracy theorist too because pretty much everything you wrote makes sense to me.  

Funny you mention Clinton - I jumped in to the FDL Book Salon w/Jane Mayer and she eventially replied (in response to another question).  She wrote a great book but I thought she somewhat glossed over the previous administration.  Maybe I'm being a nitpicker but that's the kind of detail the right will seize on and say "see! it's all political!"  We have to be willing to call out anyone who's doing it.

by danps (dan at pruningshears (dot) us) on Sat Sep 6th, 2008 at 11:26:14 AM EST
[ Parent ]
OTOH, if you call out Clinton, the repugs will just say "see! Everybody does it!"

I suppose which strategy to choose depends on whether you're in the "lesser evil" school or in the "Chthulhu/Hastur" school.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Sep 13th, 2008 at 10:07:23 AM EST
[ Parent ]
...while you have two political parties of pro-corporate militarist fervour, there will be no change.


Helen, as is her wont, nails it.

She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre

by ATinNM on Sat Sep 6th, 2008 at 03:54:08 PM EST
[ Parent ]
yeah, for it to change radically obama will have to beat back the waves of calumny, part them and then  boogie woogie with no surfboard ...

i think he has to pretend to be a vicious militarist to get the gig.

can politics be changed from a centrist (possibly closet liberal) position?

hopefully we're about to find out.

my guess is yes, but only incrementally, as in tidy up the wars you're in, don't start any new ones, and make your militarism more about taking good care of vets, than about more clunky dysfunctional vaporware ubertoys for dominating space etc.

beat them into solar water heaters instead...

'The history of public debt is full of irony. It rarely follows our ideas of order and justice.' Thomas Piketty

by melo (melometa4(at)gmail.com) on Sat Sep 6th, 2008 at 06:15:03 PM EST
[ Parent ]
torture and cruelty that started on the battlefields of Afghanistan

That did not start in Afghanistan. It's been a consistent pattern since forever and in all the places where colonial powers have been propping up colonial administrations or puppet regimes. The US is no stranger to this modus operandi.

The difference in this administration is that it does it in public. Previous imperialists in the US and elsewhere at least had the decency to pretend to be shocked and repelled by the atrocities required to maintain colonial rule.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Sep 13th, 2008 at 10:03:21 AM EST

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