Monday, February 20, 2006
A Half-Dozen Questions About 9/11 They Don't Want You to Ask
The events of September 11, 2001 evoke painful memories, tinged with a powerful nostalgia for the way of life before it happened. The immediate tragedy caused a disorientation sufficient to distort the critical faculties in the direction of retrospectively predictable responses: bureaucratic adaptation, opportunism, profiteering, kitsch sentiment, and mindless sloganeering. As 9/11, and the report of the commission charged to investigate it, fade into history like the Warren Commission that preceded it, the questions, gaps, and anomalies raised by the report have created an entire cottage industry of amateur speculation--as did the omissions and distortions of the Warren Report four decades ago. How could it not? While initially received as definitive by a rapturous official press, the 9/11 Report has been overtaken by reality, not only because of unsatisfying content--like all "independent" government reports, it is fundamentally an apology and a coverup masquerading as an exposé--but because we now know more: more about the feckless invasion of Iraq, more about the occupation of Afghanistan and the purported hunt for Osama bin Laden, more about the post-9/11 stampede to repeal elements of the Bill of Rights, more about the rush to create the Department of Homeland Security, an agency to "prevent another 9/11," which, in retrospect, is plainly about cronyism, contracts, and Congressional boodle.
Many of the amateur sleuths of the 9/11 mystery have based their investigations on microscopic forensics regarding the publicly released video footage, or speculations into the physics of impacting aircraft or collapsing buildings. But staring too closely at the recorded traces of subatomic phenomena involved in a one-time event can deceive us into finding the answer we are looking for, as Professor Heisenberg once postulated. Over 40 years on, the Magic Bullet is still the Magic Bullet: improbable, yes, but not outside the realm of the possible. But there is surprisingly little discussion of the basic higher-order political factors surrounding 9/11, factors that do not require knowledge of the melting point of girder steel or the unknowable piloting abilities of the presumed perpetrators. Let us proceed, then, in a spirit of detached scientific inquiry, to ask questions the 9/11 Commission was unprepared to ask.
1. Who is Osama bin Laden, and where did he come from?
On this point, the report retreats into obfuscation. While acknowledging that he had something to do with resisting the Soviet occupation of Afghanistan, the report suggests, without explicitly so stating, that the links between Osama and the United States were practically nonexistent. This will not parse: until the present Global War on Terrorism, the CIA's operation against the Red Army in Afghanistan was the biggest and most expensive covert operation in the agency's history. The 9/11 Report provides no convincing documented refutation of Osama's links with the CIA, given that the agency was running a major war in which he was a participant. Similarly, the report's authors did not plumb the informal U.S. government connections with the same Saudi government whose links with the bin Laden family could have provided a cut-out for any CIA-Osama relationship. 
2. When were Osama's last non-hostile links with the U.S. government?
Consistent with its view of Osama's relationship with the CIA during the anti-Soviet enterprise, the 9/11 Report ignores the possibility that he may have had a continuing relationship with the U.S. government, particularly with its intelligence services. The report brushes this hypothesis aside with a footnote to the effect that both the CIA and purported second-ranking al Qaeda figure Ayman al Zawahiri deny a relationship. One may doubt the veracity of Langley's denials of a relationship with Osama bin Laden and his associates, given the lack of truthfulness of its earlier statement to the Warren Commission about not having had a relationship with Lee Harvey Oswald. Or in alleging that an employee named "Mr. George Bush" whom the agency cited in its reporting of the events of 22 November 1963 was a completely different person from the George Bush who subsequently became the 41st U.S. president, after serving as Director of Central Intelligence.
Likewise, Mr. Zawahiri's assertion of not having received a penny of CIA funds deserves the searchlight of skeptical scrutiny. What the report describes as Zawahiri's "memoir" is actually a broadside published in a London-based newspaper in December 2001, i.e., after the events of 9/11. It was obviously intended as a call to the Muslim faithful for a holy war against the infidel desecrator of the holy places; would such a person, conscious of the need to gain recruits in a war of pure faith against the Great Satan, have confirmed having been on the payroll of his principal enemy? It is no more likely than for the current President of the United States, in drawing parallels between the war in Iraq and World War II, to advert to the fact that his grandfather's bank was seized by the U.S. government in 1942 for illicit trading with the Third Reich. Indeed, U.S. intelligence agencies have had, purely as a function of their charters, relationships with most of the world's scoundrels, con-men, and psychopaths of the last 70 years: from Lucky Luciano and the Gambino Mob, to Reinhard Gehlen and Timothy Leary, to the perpetrators of the massacre of 500,000 people in Indonesia in 1965, to the Cuban exiles who blew up an airliner in 1976 , to such shady characters as Ahmed Chalabi and his friend "Curveball." Among such a gallery of murderous kooks, bin Laden and his cohorts do not especially stand out.
More dispositive than these speculations, however, are the very real connections between Washington and Islamic jihadists in the Balkans throughout the 1990s. The report hints at this relationship by mentioning the presence of charity fronts of bin Laden's "network" in Zagreb and Sarajevo. In fact, the U.S. government engaged in a massive covert operation to infiltrate Islamic fighters, many of them veterans of the Afghan war, into the Balkans for the purpose of undermining the Milosevic government. The "arms embargo," enforced by the U.S. military, was a cover for this activity (i.e., using military force to keep prying eyes from seeing what was going on). A key Washington fixer for the Muslim government of Bosnia was the law firm of Feith and Zell. Yes, Douglas Feith, one of the principal conspirators involved in launching the Iraq war under the banner of opposing Islamic terrorism, was a proponent of introducing Islamic terrorists into South Eastern Europe. Do the "Islamofascists" of pseudo-conservative demonology accordingly seem less like satanic enemies and more like puppets dangling from an unseen hand? Or perhaps the analogy is incorrect: more like a Frankenstein's Monster that has slipped the control of its creator.
3. How did the President of United States React to the August 6 2001 Presidential Daily Brief?
Although the August 6 PBD had been mentioned in the foreign press since 2002, it did not come to the attention of official Washington until then-National Security Advisor Condoleezza Rice impaled herself upon the hook of 9/11 Commission member Richard Ben Veniste's artful line of questioning in mid-2004. Blurting out the title of the PBD, "Bin Laden Determined to Strike in U.S.," she let the cat out of the bag--or perhaps not. Having opened Pandora's Box, the commissioners displayed no troublesome curiosity about its contents.
What concrete measures did the president take after receiving perhaps the most significant strategic warning that any head of state could have hoped to receive about an impending attack on his country? Did he alert the intelligence agencies, law enforcement, the Border patrol, the Federal Aviation Administration, to comb through their current information and increase their alert rates? Did the threat warning of the PBD (granted that it did not reveal the tail numbers of the aircraft to be hijacked), in combination with the numerous threat warnings from other sources  elicit feverish activity to "protect the American people?" Not that we can observe.
So what was the actual response of the U.S. government? Here the 9/11 Report exhibits autism. As nearly as we can determine from contemporaneous bulletins, the president massacred whole hecatombs of mesquite bushes and large-mouthed bass, perfected his golf swing, and hosted various captains of industry in the rustic repose of Crawford, Texas. In other words, he presided over the most egregious example of Constitutional nonfeasance since the administration of James Buchanan allowed Southern secessionists to take possession of the arms in several federal arsenals. The 9/11 Commission's silence on this point is an abundant demonstration of its role as an apologist, rather than a dispassionate truth-teller.
The testimony of federal officials about what they did up to and during the attacks is telling, in so far as the false and misleading statements of witnesses provide clues. Ms. Rice, her tremulous voice betraying nervousness, averred, against the plain evidence of the public record and common sense, that a PBD stating that Osama bin Laden was determined to strike within the borders of the United States was too ambiguous to take any action. Likewise, then-Attorney General John Ashcroft may have perjured himself when he denied under oath that acting FBI Director Thomas Pickard came to him on July 5, 2001 with information of terrorist plots--information that the Attorney General "did not want to hear about anymore," as NBC News reported on June 22, 2004. It might be considered a matter of Ashcroft's word against Pickering's, except for the fact that Pickering had a corroborating witness.
4. Who wrote the script for the rhetorical response to 9/11?
The smoke was still rising from the rubble of the World Trade Center complex and the Pentagon when the unanimous and universal cry erupted in government circles, and was relentlessly amplified by the media, that this was "war," not a criminal act of terrorism. How very convenient that this war, declared against a diffuse and stateless entity, would trigger long-sought legal authorities and constitutional loopholes which would not apply in the case of a criminal act.  Torture, domestic spying, selective suspension of habeas corpus, all the unconstitutional monsters whose implications are only clear four years after the event, all slipped into immediate usage with the rhetorical invocation of war.
This was not merely war, it was unlimited war, both in the sense of total war meant by General Ludendorff (civilian rights being trivial), and in the sense of lacking a comprehensible time span. "A war that will not end in our lifetimes," said Vice President Cheney on Meet the Press on the very Sunday following the attacks. How could he be so sure during the fog of uncertainty following the strike? If bin Laden and his followers were merely a limited number of fanatics living in Afghan caves, as we were assured at the time, why did the Bush administration relentlessly advance the meme that a decades-long war was inevitable? Could not a concerted intelligence, law-enforcement, and diplomatic campaign, embracing all sovereign countries, have effectively shut down "al Qaeda" within a reasonable period of time--say, within the period it took to fight World War II between Pearl Harbor and the Japanese surrender?
Four years on, Vice President Cheney, doing a plausible imitation of the radio voice of The Shadow, continues to publicly mutter, in menacing tones of the lower octaves, that the war on terrorism  is a conflict that will last for decades. This at the same time as the junior partner of the ruling dyarchy, the sitting president, is giving upbeat speeches promising victory in the war on terrorism (i.e., Iraq, the Central Front on the War on Terrorism) against a papier maché backdrop containing the printed slogan "Strategy for Victory."It is curious that no one--not the watchdogs of the supposedly adversary media, nor the nominal opposition party in Washington, nor otherwise intelligent observers--has remarked on this seeming contradiction: victory is just around the corner, yet the war will last for decades. Quite in the manner of the war between Eastasia and Oceania in 1984. In earlier times, this contradiction would have seemed newsworthy, if not scandalous. Suppose President Roosevelt had opined at the Teheran Conference that the Axis would be defeated in two years. Then suppose his vice president had at the same time traveled about the United States telling his audiences that the Axis would not be defeated for decades. An American public not yet conditioned by television would at least have noticed, and demanded some explanation.So question number 4 concludes with a question: why does the U.S. government hive so firmly to the notion of a long, drawn-out, indeterminate war, when Occam's Razor would suggest the desirability of presenting a clear-cut victory within the span of imagination of the average impatient American--a couple of years at most? Or is endless war the point?
5. Why did the mysterious anthrax attacks come and go like a wraith?
For those in immediate proximity to the events, the September 11 attacks on the World Trade Center and the Pentagon were frightening in the extreme, but they had not the slow accumulation of dread that the anthrax scare of October 2001 presented. Far more than any anomaly concerning 9/11 itself, the anthrax mystery is the undecoded Rosetta Stone of recent years. The anthrax attacks were the most anomalous terrorist attacks in history: clever, successful, unpunished, causing five deaths and a billion dollars' damage. Yet never repeated. This alone makes them remarkable in the annals of criminal activity, but there is more--the intended victims (at least those with an official position) were warned in writing of their peril in sufficient detail that they could take steps to administer an antidote. Is this characteristic of terrorist attacks by "al Qaeda," or by any known Middle Eastern terrorist group?Except for the ambiguous first attack (which killed a National Enquirer photo editor), all the deaths resulting from the anthrax plot were incidental--mail handlers and innocent recipients of mail which had been contaminated by proximity to the threat letters. Evidently the West Jefferson anthrax strain was more powerful and had greater accidental effects than the plotters had intended. But what did the plotters intend, if they did not will the deaths of the addressees of their anthrax letters? It was pure coincidence, perhaps, that the anthrax scare was at its height, producing psychosomatic illness symptoms among members of Congress and staffers, just as the USA PATRIOT Act was wending its way through the legislative process. This measure, which originated among the same Justice Department lawyers who legally opined that torture was wholesome, was rammed through the Congress after enactment of the authorization of the use of force in Afghanistan. Why is this sequence significant?The then-majority leader of the U.S. Senate, Tom Daschle, wrote a curious op-ed in the Washington Post four years after the events just described. . In attempting to refute the administration's allegation that it had been granted plenary wiretap powers in the Afghanistan authorization, he stated that he and his Senatorial confreres explicitly rejected an administration proposal to authorize an effective state of war within the borders of the United States itself. Given the administration's repeatedly demonstrated refusal to accept any limitation on its powers, it is logical that the rebuff on the war powers authorization was followed by the prompt submittal of the Justice Department's draft of the PATRIOT Act, containing many of the domestic authorities the Bush White House had sought in the use of force legislation. How doubly coincidental that two of the limited number of addressees of the threat letters should have been the offices of Daschle himself, and Sen. Patrick Leahy, then-chairman of the committee of jurisdiction over the PATRIOT Act. Needless to say, the measure was passed by an even more comfortable margin than that enjoyed by the 1933 Enabling Law in the Reichstag.  Notwithstanding buyer's remorse exhibited by many members of Congress, and current efforts to amend its more onerous provisions, it appears we are saddled with the main burdens of its edicts in perpetuity.How the government placed this perpetual burden on its citizens is bound up with the mysterious anthrax scare of October 2001, an outrage that, unlike 9/11, does not even merit an official explanation. No one has been charged.
6. Why did Osama bin Laden escape?
"Wanted, dead or alive!" "We'll smoke 'em out of their caves!" All Americans know the feeling of righteous retribution that attended the hunt for Osama bin Laden in the autumn and winter of 2001. Yet, suddenly, it fizzled out and became subsumed in attacking Iraq and its oilfields.We know the explanation. Somehow, bin Laden escaped in the battle of Tora Bora, because "the back door was open." Only after the invasion of Iraq, more than a year later, was there general acknowledgement that resources intended for Afghanistan had been diverted to the buildup for Iraq. The public was lead to believe that supplemental appropriations for Afghanistan were siphoned into the Iraq project beginning about mid-2002. But the strange apathy about Osama's whereabouts began sooner than that. In a speech to the Council on Foreign Relations, then-Senate Intelligence Committee Bob Graham states the following: "I was asked by one of the senior commanders of Central Command to go into his office [this presumably means the CENTCOM Commander, GEN Tommy Franks. Underlings do not summon senior Senators into their offices]. We did, the door was closed, and he turned to me, and he said, 'Senator, we have stopped fighting the war on terror in Afghanistan. We are moving military and intelligence personnel and resources out of Afghanistan to get ready for a future war in Iraq.' This is February of 2002 [emphasis added]. 'Senator, what we are engaged in now is a manhunt not a war, and we are not trained to conduct a manhunt.'"
Senator Graham elaborates on this matter in his book, Intelligence Matters, on page 125:
"At that point, General Franks asked for an additional word with me in his office. When I walked in, he closed the door. Looking troubled, he said, 'Senator, we are not engaged in a war in Afghanistan.'
"'Excuse me?" I asked.
"'Military and intelligence personnel are being redeployed to prepare for an action in Iraq,' he continued. 'The Predators are being relocated. What we are doing is a manhunt. We have wrapped ourselves too much in trailing Osama bin Laden and Mullah Omar. We're better at being a meat axe than finding a needle in a haystack. That's not our mission, and that's not what we are trained or prepared to do.'"
In the first excerpt, the military officer might be ambivalent about the change in mission, merely saying that the U.S. military is supposedly not trained for conducting manhunts. The second excerpt provides more substance, suggesting that Franks himself agrees that looking for Osama bin Laden is a mug's game ("We have wrapped ourselves too much in trailing Osama bin Laden and Mullah Omar.")There we have it: as early as February 2002, the U.S. government was pulling the plug. Or was it even earlier? Gary Berntsen, a former CIA officer, says in his book Jawbreaker that his paramilitary team tracked bin Laden to the Tora Bora region late in 2001 and could have killed or captured him if his superiors had agreed to his request for an additional force of about 800 U.S. troops. But the administration was already gearing up for war with Iraq and troops were never sent, allowing bin Laden to escape. Now, Berntsen is a typical Langley boy scout who buys into most of the flummery about the war on terrorism; but it is precisely for that reason that his testimony is worthwhile. Here is no ideological critic of the Bush administration and its foreign policies--on the contrary, he shares many of its assumptions. Like fellow Agency alumnus Michael Scheuer, he has experienced the cognitive dissonance of dealing with the administration's policies at first hand, and wishes to report on his findings.Is it plausible that the United States Military, disposing of 1.4 million active duty troops and a million reservists, could not scare up 800 additional troops to capture what was then characterized as a fiend in human form? Perhaps the then-Chairman of the Joint Chiefs of Staff, General Richard Myers, explained it best in a CNN interview on 6 April 2002, well after the hunt for bin Laden had apparently been concluded:
"Well, if you remember, if we go back to the beginning of this segment, the goal has never been to get bin Laden." 
What can one conclude from this series of questions? If the 9/11 mystery is like other great, mysterious events--such as the Kennedy assassination--the course is probable. For a year or two, raw emotion over the event forecloses inquiry; for the next several years after that, the public's attention wanes, and the desire to forget the painful memory predominates.In a decade or so, though, some debunker will bring new facts into the public arena for the edification of those Americans, then in late middle age, who will view 9/11 as an intellectual puzzle: far from the urgent concerns of their daily lives.
Many people may, by that time, accept that the official explanation is bunk, and suspect that the government had once again tricked the American public, those ever-willing foils in the eternal Punch-and-Judy show. But the majority will neither know nor care about obscure international relationships during a bygone era.
In 1939, the English author Eric Ambler wrote a brilliant and now-disregarded novel whose theme was that the political events culminating in World War II were indistinguishable from the squalid doings of ordinary criminals. Let us quote from that novel, The Mask of Dimitrios:
"A writer of plays said that there are some situations that one cannot use on the stage; situations in which the audience can feel neither approval, sympathy, nor antipathy; situations out of which there is no possible way that is not humiliating or distressing and from which there is no truth, however bitter, to be extracted. . . . All I know is that while might is right, while chaos and anarchy masquerade as order and enlightenment, these conditions will obtain."
Werther is the pen name of a Northern Virginia-based defense analyst. Werther can be reached at: email@example.com
 Bob Woodward's 1987 book Veil describes the informal connections between personages in the U.S. government and the Saudi government, including the ubiquitous Prince Bandar. A tête á tête between CIA director William Casey and the Prince supposedly resulted in a false-flag "terrorist" bombing in Beirut to retaliate against the bombing of the Marine barracks there in 1983. Regrettably, the dead were mainly civilians.
 9/11 Commission Report, 23rd footnote to chapter two, page 467.
 This is the case of Cuban "freedom fighter" Luis Posada Carriles, who is suspected of sending the jet-borne Cuban Olympic fencing team to Valhalla in order to express his opposition to Fidel Castro. The incumbent administration, otherwise so steadfastly opposed to international terrorism, has been resistant to extraditing Mr. Posada --no doubt the administration is casting an eye on Florida's electoral votes.
 To include the Phoenix Memo, FBI agent Colleen Rowley's urgent bulletins from Minnesota, tips from foreign intelligence agencies, warnings from the Federal government to its high-ranking government placemen not to fly by commercial airliner, the contemporaneously noted presence of art students-cum-Mossad agents within two blocks of 9/11 operative Mohammed Atta, and other indicators.
 Long sought by Messrs. Cheney and Rumsfeld, whose formative and traumatic experiences in the executive branch were shaped by their revulsion against attempts by Congress, the federal bench, and the American people, to restrain Richard M. Nixon's assertion that the Constitution does not apply to a sitting president.
 The phrase "war on terrorism" is, as many people have commented, a somewhat hazy conception, being a war on a tactic, much as if FDR had declared war on naval aviation after the attack on Pearl Harbor. Significantly, the popular mind has contracted this phrase into "the war on terror," an even more illogical coinage. If the U.S. government is truly at war against a mental state that gives rise to ill-defined dread, it should disestablish itself forthwith, to the benefit of our rights, our bank balances, and our physical safety.
 "Cheney Warns of Decades of War," BBC, 6 October 2005.
 "Power We Didn't Grant," by Sen. Tom Daschle, Washington Post, 23 December 2005.
 The Enabling Law passed the Reichstag by a vote of 444-94, whereas the PATRIOT Act passed the House by a margin of 357-66, and the Senate by a vote of 98-1. Curiously, the Enabling Law was supposed to sunset in four years: on April Fool's Day, 1937, precisely paralleling the four-year expiration of many of the PATRIOT Act's provisions. Perhaps the eerie similarity reflects the influence of Nazi legal scholar Carl Schmitt on neoconservative lawyers of the Bush administration like David S. Addington, John Yoo, and Viet Dinh.
 News transcript: Gen. Myers Interview with CNN TV, http://www.defenselink.mil/transcripts/2002/t04082002_t407genm.html
U.S. Military Plans for "The Long War"
THE WASHINGTON TIMES
Published February 20, 2006
Joint Chiefs of Staff planners have produced a 27-page briefing on the war on terror that seeks to explain how to win the "long war" and says Islamic extremists may be supported by 12 million Muslims worldwide.
Military planners worry that al Qaeda could win if "traditional allies prefer accommodation."
Al Qaeda leader Osama bin Laden, the document states, "is absolutely committed to his cause. His religious ideology successfully attracts recruits. He has sufficient population base from which to protract the conflict. ... Even support of 1 percent of the Muslim population would equate to over 12 million 'enemies.' "
The unclassified production, titled "Fighting the Long War -- Military Strategy for the War on Terrorism," is a component of the Pentagon's ongoing campaign to explain that a lengthy struggle requires patience from the American people and Congress.
It holds up the 1930s as an example of how not to respond to extremism, noting Europe's appeasement of German dictator Adolf Hitler.
"The consequences of inaction" in the 1930s, the briefing says, "Lives lost: 300,000; 70 million worldwide. ... War expenditures: $3.1 trillion ... 38 percent of GDP per year. [The Pentagon today is spending 3.8 percent of U.S. GDP.] U.S. reconstruction expenditures: $90 billion over four years."
The briefing was prepared for Rear Adm. William D. Sullivan, vice director for strategic plans and policy within the Joint Staff, which is under Marine Corps Gen. Peter Pace, Joint Chiefs of Staff chairman. Adm. Sullivan used it to deliver a lecture in January to a national security study group at Mississippi State University.
"It is an effort, when asked, to explain why we are doing what we are doing from a military perspective to fight the long war," said Air Force Maj. Almarah Belk, spokeswoman for Gen. Pace. "We're not on a road show. We tailor it based on who requests the speaker, and a lot of the same core information could be used in other briefings."
The Bush administration's effort to explain Iraq and the broader war includes more than briefings. On Friday, Defense Secretary Donald H. Rumsfeld was in New York talking to the Council on Foreign Relations, and Gen. Pace addressed the National Press Club in the District. At the same time, President Bush was in Tampa, Fla., speaking on the war.
Bin Laden, the Joint Staff paper says, wants to "expand the Muslim empire to historical significance." And Iraq "has become the focus of the enemy's effort. If they win in Iraq, they have a base from which to expand their terror. ... Extremists now have an Emirate in Iraq that serves as a base of operations from which they can revive the Caliphate [Islamic rule]. ... Baghdad becomes the capital of the Caliphate. The revived Caliphate now turns its attention to the destruction of Israel."
Adm. Sullivan's briefing contains a map that shows the bin Laden-style caliphate conquering North and East Africa, the entire Middle East and Central and South Asia. This dire scenario can only happen if the U.S. is defeated in Iraq and Afghanistan. "The United States cannot be defeated militarily," the briefing says, "the enemy knows this. But consider ... terror attacks weaken the world economy. Continued casualties weaken national resolve. Traditional allies prefer accommodation."
The enemy has "inherent weaknesses," including "no military capacity to expand their fight beyond terrorist tactics."
"Marginalizing an ideology requires patience and promoting reform from within," the briefing said.
Although it is similar to the Cold War, the war on terror has a distinction.
"We cannot discredit all of Islam as we did with communism," the document says. "It is a divine religion. We can only discredit the violent extremist."
"Americans will commit to a 'long war' if ... they are confident our leaders know what they are doing."
Thursday, February 16, 2006
Scalia Calls Proponents of 'Living Constitution' Idiots
"People who believe the Constitution would break if it didn't change with
society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.
In a speech Monday sponsored by the conservative Federalist Society, Scalia
defended his long-held belief in sticking to the plain text of the Constitution
"as it was originally written and intended." "Scalia does have a philosophy,
it's called originalism," he said. "That's what prevents him from doing the
things he would like to do," he told more than 100 politicians and lawyers from
this U.S. island territory.
According to his judicial philosophy, he said, there can be no room for
personal, political or religious beliefs. Scalia criticized those who believe in
what he called the "living Constitution." "That's the argument of flexibility
and it goes something like this: The Constitution is over 200 years old and
societies change. It has to change with society, like a living organism, or it
will become brittle and break." "But you would have to be an idiot to believe
that," Scalia said. "The Constitution is not a living organism, it is a legal
document. It says something and doesn't say other things." Proponents of the
living constitution want matters to be decided "not by the people, but by the
justices of the Supreme Court." "They are not looking for legal flexibility,
they are looking for rigidity, whether it's the right to abortion or the right
to homosexual activity, they want that right to be embedded from coast to coast
and to be unchangeable," he said.
Scalia was invited to Puerto Rico by the Federalist Society for Law and Public Policy
Studies. The organization was founded in 1982 as a debating society by
students who believed professors at the top law schools were too liberal.
Conservatives and libertarians mainly make up the 35,000 members."
In simplistic terms, the “living constitution” is an approach to constitutional interpretation that views the principles of the Constitution as adaptable in order to allow the Constitution to cope with current problems and needs. What Scalia refers to as “originalism” entails the belief that the only legitimate role for the courts in constitutional interpretation is to apply the "original meaning" of the text and/or the original intention of the framers of the Constitution. Originalists claim that any other method of constitutional interpretation involves the courts in imposing their individual value judgments, which is inconsistent with what they view as our fundamental commitment to democracy in which legislatures are to make the substantive value choices and the courts are to neutrally apply the constitutional text. Thus, legislatures’ substantive value choices are not to be displaced unless they conflict with the text and intention of the Constitution.
Leaving aside the issue of whether Scalia’s record on the Supreme Court demonstrates that he practices what he preaches, originalism as a method of constitutional interpretation, while cloaking itself in a patina of objectivity and neutrality, actually requires judges, in most cases, to make the same type of substantive value judgments for which originalists criticize other methods of constitutional interpretation.
The language of most constitutional amendments is not specific enough to be applied to specific cases without some interpretation. As applied to specific cases, especially those involving technologies that the framers may never have even dreamed of, there is rarely any demonstrable consensus among the framers and ratifiers of the Constitution as to what principle is stated or implied by a given constitutional provision. If there was a consensus as to what the framers and ratifiers meant by a constitutional provision, that consensus is usually too general, vague, or indefinite to provide guidance for application to a specific problem.
As applied to most cases, there is, at best, ambiguity as to the precise meaning or reach of a constitutional provision. In such cases, originalists are instructed to interpret and apply the constitutional text in a manner so as to at least not contradict the text of the Constitution itself. But, in a specific case, determining which interpretation and application of a constitutional provision is non-contradictory of the text of the Constitution begs the entire question of what the constitutional text means, and is fraught with the same type of results-oriented substantive value judgments for which originalists criticize other approaches. In general, originalism results in no definite answer with respect to how to apply constitutional provisions in specific cases.
But originalism is plagued by deeper, more fundamental problems. For example, we do not know how the framers intended their intentions to be determined and applied. In other words, did the framers intend their original intentions as to the meaning of particular constitutional provisions to be binding on future generations, or did the framers intentionally draft the provisions to allow future generations to interpret them in the light of advances in knowledge and technology and changes in society they could not have then imagined?
In addition, as stated by Professor Bobbit:
“We do not have an original commitment to a particular form of historical
argument. To what source are we to refer for an authoritative understanding? To
statements of members of the Convention who proposed a particular provision? To
the debate surrounding its adoption on the Convention floor?…Or should we
look…instead to the various ratifying state conventions?”
“The records of the debates are so scanty that full discussion of any point has
been lost; more importantly, the Convention met in secret without official
minutes in an atmosphere that concealed dissent and put a premium on achieving
agreement to a document that was unglossed or unexplained in any way that might
disclose or provoke fissures in the coalitions that proposed it.
“It is rare that the debate surrounding the adoption of particular language can provide a decisive historical argument for a provision being construed in a particular
way. At most such study is likely to indicate only the concerns of the more
voluble or more forceful members of the Convention. Finally, the debates cannot
operate affirmatively to establish the correctness of a particular construction
because they can’t establish why a coalition of state delegations adopted a
The point is that Scalia’s provocative denunciation of proponents of the “living constitution” as illegitimately imposing substantive value choices applies with equal force to his own professed philosophy of originalism. The only difference is that originalists pretend that their policy choices are neutrally-derived in accordance with the original intention of the framers of the Constitution.
In a speech given at Yale University in 1962, President John F. Kennedy emphasized the responsibility of each new generation for defining the accepted clichés and value phrases of the American heritage in terms of its own needs and challenges. Kennedy stated: “As every past generation has had to disenthrall itself from an inheritance of truisms and stereotypes, so in our times we must move on from the reassuring repetition of stale phrases to a new, difficult but essential confrontation with reality.”
Similarly, Alfred North Whitehead stated:
“The art of free society consists in the maintenance of the symbolic code; and
secondly in fearlessness of revision, to secure that the code serves those
purposes which satisfy an enlightened reason. Those societies which cannot
combine reverence to their symbols with freedom of revision must ultimately
decay either from anarchy or from the slow atrophy of a life stifled by useless
These statements question the value of reference to original intention as a determinant of modern constitutional issues.
Monday, February 13, 2006
New Report Questions Terror Threat
Although the paper purports to show an overall decline in international terrorism in 2005 vs. previous years, and that most terrorism is confined to the Middle East and primarily results in Islamic victims, it does not enable an assessment of the effectiveness, if any, of international efforts to combat terrorism.
Sunday, February 12, 2006
"The Long War"
A February 3, 2006 Washington Post article shows this comparison may not be far-fetched.
The United States is engaged in what could be a generational conflict akin
to the Cold War, the kind of struggle that might last decades as allies work to
root out terrorists across the globe and battle extremists who want to rule the
world, Defense Secretary Donald H. Rumsfeld said yesterday.
Rumsfeld ... laid out broad strategies for what the military and the
Bush administration are now calling the "long war...."
According to Ehsan Ahrari, a Virginia-based defense consultant, writing in the Asia Times on February 9, 2006:
"Long War" is the Pentagon's latest template to fight the "war on terror".
The importance of this concept will be signified by the fact that it will be
capitalized in all future official military documents, a la "Cold War". The
expectation is that eventually it will catch on the same way as "war on terror",
which was in the process of being replaced by another phrase, "war against
extremism". However, that phrase was not catchy enough. The expectation is that
"Long War" will be.
"Long War" holds considerable promise of being catchy and martial in tone
and and a sound propaganda tool. The "warriors" (not a pejorative phrase) of the
Pentagon would also be able to use it compactly in their daily briefings to make
their case. Consequently, even before releasing its Quadrennial Defense Review
2005, the Pentagon has initiated its public campaign of popularizing the
A February 10, 2006 opinion piece by William Pfaff in the International Herald Tribune makes some interesting and provocative points:
What was originally to be a matter of quick and exemplary revenge, with
lightning attacks and acclaimed victories, has now become, we are told, the long
war whose end cannot be foreseen. The citizen is implicitly told to expect the
current suspension of constitutional norms, disregard for justice, and defiance
of limits on presidential power as traditionally construed, to continue
indefinitely. We are in a new age, America's leaders say. The Democratic
opposition seems to agree.
What started as the war against terror, proclaimed by the president to Congress
in the aftermath of the 2001 attacks, has undergone a metamorphosis. The
interpretation was that the people responsible for the World Trade
attacks and other terrorist outrages against Americans and their
be discovered, defeated and killed or brought to justice.
Surely that is what most Americans thought when the search began for Osama bin
Laden, Mullah Mohammed Omar and members of Al Qaeda. Today bin Laden and Mullah Omar are somewhere in Waziristan, in Pakistan's tribal areas, tracked by the CIA and Pakistani soldiers (with different degrees of enthusiasm). There is an
insurrection in Iraq, which had nothing to do with Al Qaeda when it started, but
from which Al Qaeda and Abu Musab Al-Zarqawi now draw global publicity.
Al Qaeda and individual international terrorists are the object of
worldwide intelligence and police operations. They are a marginal phenomenon.
The Bush administration's conflation of them with the social upheaval
in [the Arab] world is exploited to perpetuate changes in American
society that provide a much more sinister threat to democracy than anything ever
dreamed by Osama bin Laden.
The radical threat to the United States is at home.
I do not have sufficient personal knowledge to form what I would consider a valid opinion on the actual extent of the threat to U.S. national security posed by Al Qaeda and other Islamic fundamentalist terrorist organizations. The Bush Administration, at least in its public statements, appears to believe the threat is very real and very serious, and they want the American people to believe it as well because, as we have seen, the more afraid the American people are, the more unquestioningly they will forfeit their constitutional rights and liberties to allow the government to better "protect" the people from terrorists. However, the Bush Administration also believed, at least publicly, that Iraq had weapons of mass destruction. President Bush and his aides have said they relied on flawed intelligence and they did not intentionally deceive the American people. Assuming for the sake of argument that this is true, that means the Bush Administration negligently deceived the American people. Either way, I believe the Bush Administration's credibility is very low.
As we have seen with the NSA wiretapping issue, we have a President who believes he has "inherent" authority to ignore federal laws when he believes it is necessary to do so in the name of "national security." The Bush Administration is ramping up its propaganda machine to prepare the American people for "The Long War." How long will "The Long War" last? Until the last individual terrorist is tracked down and captured or killed? No one can know how long that will take with any degree of certainty.
The Bush Administration wants us to believe there is no choice but to prepare ourselves for a virtually perpetual state of war because there are enemies who are bent on our destruction. But given the Bush Administration's low credibility, I do not believe it is unreasonable to examine who benefits politically and economically from the U.S. existing in a state of war, and then to ask whether these political and economic benefits might not be the real rationale underlying "The Long War."
Saturday, February 04, 2006
"The greatest tyrannies are always perpetrated in the name of the noblest causes." - Thomas Paine
Wednesday, February 01, 2006
More About Domestic Spying and the Rule of Law
Soon after the NSA spying program was first disclosed by the New York Times in a December 16, 2005 article, there was a Press Briefing on December 19, 2005 by Attorney General Alberto Gonzales and General Michael Hayden in which the Attorney General claimed: “The authorization by the President is only to engage in surveillance of communications where one party is outside the United States, and where we have a reasonable basis to conclude that one of the parties of the communication is either a member of al Qaeda or affiliated with al Qaeda.”
The U.S. Department of Justice (DOJ) issued a letter dated December 22, 2005 purporting to summarize the legal authority supporting “the NSA activities described by the President.”
A response to the December 22, 2005 DOJ letter was issued on January 9, 2006 by fourteen (14) law professors and former government officials.
The Congressional Research Service issued a report dated January 5, 2006 entitled “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information.” This report presents a comprehensive analysis of the legal arguments on both sides.
On January 19, 2006, DOJ issued a 42-page “white paper” entitled: “Legal Authorities Supporting The Activities Of The National Security Agency Described By The President.”
Update: On February 2, 2006, the 14 law professors and former government officials issued their response to the DOJ White Paper.