In a permanent state of war

America's current militarist policies are frighteningly reminiscent of those of the Third Reich, says Todd Pierce. The US military lawyer who has defended several Guantanamo inmates, was recently in Berlin as part of a European speaking tour.

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Photo courtesy of the US Army

America’s current militarist policies are frighteningly reminiscent of those of the Third Reich, says Todd Pierce. The US military lawyer who has defended several Guantanamo inmates, was recently in Berlin as part of a European speaking tour.

Pierce, a US army veteran turned Guantanamo defence attorney, is a humanist at heart. Following high school, he dispassionately joined the US Marine Corps “as a reservist” in his native Minnesota at age 19 and was later transferred to the Army Reserve, falling into active duty on several occasions, notably during the 1990 Gulf War which he spent in Saudi Arabia. At the age of 42, when some men might shake off their midlife existential frustration with young lovers, Major Pierce opted to attend law school. Following various legal positions in military and state agencies, he volunteered in 2008 to represent Guantanamo detainees in military commissions and was involved in the defence of three cases. Since then he’s been an indefatigable supporter of the rule of constitutional principles in the face of what he describes as a slow militarisation of the US legal system, a development he denounces as reminiscent of 1930s Germany.

Speaking in Berlin, you expressed your concerns about the degradation of civil liberties in the US. Can you explain?

At the end of 2011, a law was signed, section 10 21 B2 of the National Defence Authorization Act, under which anyone suspected of providing support for terrorism will be put into military detention. What it actually does is put suspects under the law of war and removes constitutional protection. And the way the government is interpreting it these days, they are saying that the President has all these war powers and therefore he can act outside the constitution. That’s incredibly dangerous. At some point he might want to use it to suppress dissent, to suppress free speech. It’s happened before.

So it basically suspends all democratic rights you’d normally have as a suspect under civilian law…

Exactly. And that’s what happened during our Civil War. The United States was under martial law – and I don’t mean the South, I mean the North. They decreed martial law in order to deal with what they called “disloyalty”. A lot of newspapers were shut down by Union Military Commanders. It was repudiated at the end of the Civil War by our Supreme Court, so when the next big war came along, World War I, they passed the Espionage and Sedition Act which also prohibited certain speech, but at least then you still had the constitutional protections.

Doesn’t the US government always consider itself to be at war?

Obama should be a big disappointment to virtually everybody that voted for him.

Exactly, and that’s the danger. Just in the last couple of days we have had people like Leon Panetta, former CIA director and the Secretary of Defence, talking about how this war with ISIS will last 30 years. First of all that’s crazy, how would he know that it’s going to last 30 years? There are genuinely some people now in the United States, like John Yoo and Dick Cheney, who need a state of war so they can argue that the president should have these extraordinary war powers. And that’s a fallacious argument, it doesn’t hold up under the Constitution, but they keep repeating it, and it’s essentially like article 48 of the Weimar Constitution where a German leader, in essence, doesn’t have to abide by the constitution because he has these extraordinary war powers… and you know what happened in 1933. The German-Jewish lawyer Hernst Fraenkel described it in a book called The Dual State, which he wrote whilst in the process of leaving Germany in 1939. It’s the book’s first sentence: “Martial law has become the constitution of the Nationalist-Socialist Government.” And that’s what we’re witnessing now…

So you’re actually drawing a parallel between today’s America and 1930s Germany …

Well, in the 1920s and 30s people like Ernst Jünger and Carl Schmidt talked about Germany as an exceptional nation of Europe, having the right to expand. They were sort of limiting their scope to Europe, but today with the likes of Dick Cheney, we’re talking about the entire globe, the world being subject to US military domination. In an article I wrote a couple of years ago, entitled “Guantanamo at 10”, I pointed out to prominent US law professors, one at Harvard and one at the University of Chicago, who were advocating studying the works of Carl Schmidt, the Nazi legal jurist, for what we should be doing in a state of emergency. We’re not in a state of emergency, we are not under attack by any foreign countries.

Do you think that has more to do with what’s been referred to as the military-industrial complex and the arms business or do you see it as real political belief?

Well, I do think it has to do with Dick Cheney and his role when the Soviet Union collapsed. In 1991, Cheney said, in a paper, that the world was now under our domination. It’s called the Draft Defence Planning Guidance. It had to be withdrawn because it created controversy with our allies when it was leaked.

That was under the George H.W. Bush administration – you’re saying nothing’s changed since?

Bill Clinton came into office, but as far as the understanding in the Department of Defence, this pretty much went forward and was internalised within the Clinton administration, where Madeleine Albright and Hillary Clinton were pushing for wars and the expansion of power, etc. They pretty much took by all accounts this idea that had come out of Dick Cheney, that the world was now subject to our military domination and of course you hear that Hillary Clinton really has embraced this idea that America is this exceptional nation. That’s the same thing that was said back in Germany in the 1930s too, and earlier in the 1920s by the militarists.

Obama pledged a lot, like pulling troops out of Iraq, which he did, and then closing Guantanamo, which he didn’t…

Obama should be a big disappointment to virtually everybody that voted for him. He said a lot of things about undoing what George W. Bush had done. There’s a lot of political pressure against closing Guantanamo, so I don’t even need to discuss that, but he’s the president who had the Department of Justice prepare a memo explaining legally why an American president can have a US citizen killed by a drone, or presumably any other weapon. I was actually in court the day that the United States Government was arguing that a President has this authority to assassinate a US citizen.

To go back to that “state of war”. Not so long ago, the US’ great enemy was al-Qaeda and Osama Bin Laden, and now it’s ISIS. How do you see this whole development? 

Well, you have got to go back. Few people pay attention to history, unfortunately, but there’s been a whole series of things we have done, probably you can date it back to the 1980s, where al-Qaeda came into existence for two reasons. One being the war in Afghanistan against the Soviets where the US in Saudi Arabia enlisted a lot of people, allowing Saudi Arabia to inculcate their version of Islam, Wahhabism, with these recruits, and sending them to Afghanistan and creating the madrassas, the religious schools. That was the beginning of al-Qaeda, coupled with the Egyptians who had come out of the ruthless Egyptian prisons, under Sadat, whose radicalism was formed under military government. They got out of prison and went to Afghanistan and joined together with Bin Laden, and that really created the ideological basis for radical Islam and al-Qaeda and why they believe that they had a right to attack the US, because they saw how the United States was really pulling the puppet strings.

And then came the US-led military interventions…

I have a client – his case is currently before the Appellate Court in Washington, DC. He created a video where he showed why, in their opinion, al-Qaeda has a right to fight, and they named three reasons. One was the US stationing troops in Saudi Arabia after the Gulf War and refusing to take them out, and the second was putting the sanctions on Iraq which indisputably caused at least 500,000 Iraqi children to die, either through lack of food or lack of medicine – Madeleine Albright in the Clinton administration was famously known for saying on a TV show it was all worth it. Well obviously their fellow Arabs did not believe it was worth it. And the third cause was the treatment of the Palestinians under military government in the West Bank and in Gaza, by Israel. And we see how that keeps flaring up. I suspect if you went back and looked at the statements being made by ISIS this past summer that it probably assisted them in recruiting in their rapid growth by being able to point to Gaza and what was taking place there.

So the man who made that video is now in Guantanamo and you’re part of his defence team. Can you tell us more about him and that video?

It’s online. It’s called State of the Ummah. I’m not trying to recommend it to anybody, but it tells why, as of about the year 2000, they believed they had cause to fight a war. He’s from Yemen. He was charged with three offences, material support for terrorism, solicitation, and conspiracy. But the court has vacated those convictions because they said those were not war crimes. Under the US Constitution there are only three conditions where you can step outside the constitution and have a military commission. One would be war crimes, one would be military government, and the third is martial law.

So your clients in Guantanamo were prosecuted for war crimes?

Correct. And what we’ve argued in court is that material support for terrorism, solicitation and conspiracy are not war crimes and therefore he cannot be tried under a military commission.

Have you won that case?

We have won two-thirds of it. The final issue is whether or not conspiracy is a war crime.  From our position historically, it is not. There’s no such thing as conspiracy to commit terrorism – it has to be a completed act before it can be a war crime.

So how does one end up in Guantanamo just for making a video?

He was a computer support person, a ‘media man’.  All he actually did was to release that video. He was one of a group of approximately 30 people captured at the Pakistani-Afghan border – people get captured in a whole variety of ways:  they offer bounties and what not. The bunch was, labelled ”the dirty 30” – like in some 1960s war movie – and sent to Guantanamo.

Guantanamo was created for dangerous terrorists…

Yes, “the worst of the worst terrorists” according to Donald Rumsfeld. I think there were 785 of them in the beginning. As we now know, a lot of them were picked up just by offering bounties to Afghanis and Pakistanis to turn them over to the United States. Now it’s down to I believe 145. And about 70 of those are already cleared to go to other countries, but we end up delaying getting people returned, and countries change their mind and whatnot…

But what happened to all those terrorist suspects who are not there anymore? Have they all been released?

There have only been a couple of prosecutions. Salim Hamdan (“Bin Laden’s driver”) is the most prominent one. He was found guilty by a military commission, so he did another couple of months in Guantanamo and then they sent him back to Yemen – he was just a driver. He wasn’t a terrorist. Another of my clients pleaded guilty of material support to terrorists – which is no longer a recognised crime – and he’s now back in Sudan.

What about Omar Khadr, Gunatanamo’s youngest detainee?’

He was convicted and is serving his time in Canada, even though he was a child soldier. He was 15 when he was captured, and his family supported al-Qaeda, or at least his father did. He was charged with murder and violation of the law of war, even though he’d come under attack and it’s not clear he was even shooting at anybody.

So basically you’re saying no one in Guantanamo ended up being a high-ranking terrorist?

No. There are five current trials combined in one, right now, and at least if the allegations are to be believed one or two were actually involved with 9/11, but they’re the only ones. Khalid Sheikh Mohammed’s trial is going on right now and it’s going to take years, because of everything they’ve done: they’ve tortured and still do.

One issue on the news recently was the practice of force-feeding – is that torture?

Indefinite detention itself, knowing you’ll never get out, can become torture itself under certain circumstances, and I would say that those circumstances are there in place right now, after 13 years. Then out of desperation, knowing they’re probably never getting out of there, detainees go on hunger strikes. What else are you going to do? And they force-feed them, jamming those tubes down their nose and what not. So that became a form of torture itself, an additional form of torture – and this is a trial going on in the US right now.

But why not close it as Obama promised? It’s such a bad symbol for the US…

Nobody should be fooled thinking that all Democrats are standing up for the rule of law. Many don’t, chief of all Hillary Clinton, who could be our next president…

Talks have been going on for six years. The problem from the very beginning was that the whole thing is unconstitutional. For example, they created the term ‘unlawful enemy combatant’, which itself is a false category. It was invented by John Yoo, out of a court case from 1942, just taken out of context. Basically if you’re not a combatant then you’re a civilian, there are no other categories in international law, so they’re trying to create this artificial third category, to make it appear that anybody in it is unlawful. In 2009 Congress rewrote the Military Commission Act and they changed that term from “unlawful combatant” to “unprivileged enemy belligerent” and that doesn’t fix it, it still means simply a civilian whom you deem to be committing some kind of hostile act, and a hostile act under the law of war can be writing graffiti against the occupying army, for example. Although Guantanamo pretends to mimic legal appearances, it doesn’t abide by the Geneva Convention. It violates the basic constitutional principle of the separation of powers. We now have the executive branch, through the military, exercising the juridical power.

Is it the Republicans’ fault? Have they been blocking Guantanamo’s closing?

Mainly the Republicans, but a good number of the Democrats too. Nobody should be fooled thinking that all Democrats are standing up for the rule of law. There are a lot of Democrats who don’t – not as many as Republicans, who are almost unanimous (with the exception of a couple of people like Ron Paul and Walter Jones). Chief of all Hillary Clinton – who could be our next president.

When you think about it, Europe in general – and Germany in particular – has been pretty complicit in the way the world is right now… More than ever, we’re supporting US foreign policies.

Yes, and therefore Europe has been complicit in our war crimes. Germany participated in Afghanistan, for example. We’ve stopped taking people to Guantanamo, but we’re still taking people that we’ve captured outside of Afghanistan into Bagram, an airbase in Afghanistan. And we don’t even know how many are there because it’s all classified. Germans are complicit in that because they’re a part of NATO, and NATO is complicit because they’re the ones exercising authority in Afghanistan.

What I would ask Europeans is why are you being so foolish, I would say, to put Dick Cheney’s war-mongering interests first? Because that’s what it really comes down to. We have a faction of genuine war-mongering militarists in the US. With the end of the Cold War their masks came off and now we see them for what they really are. I have written about this, I include people like Lindsay Graham, John McCain, Dick Cheney and Hillary Clinton, and they are always looking to foment another war. Hillary Clinton was Victoria Nuland’s boss, remember, and they have a militaristic mindset and they believe that the US should rule the world.

We’re in a persistent state of trying to undermine some country, whether it’s Iran, Syria, Iraq… or even Ukraine. But then we turn around and we get blow-back. When we try to find someone to help us out and we see that we haven’t got any friends left. The people making the policy in the US are irrationalists who just want to wage war and sell weapons. That’s what Europeans have to recognise because you’re on the front lines so to speak…

Do you think there is actually a long-term plan? It seems to be all so short-sighted.

You have got to realize that a militaristic mind is not exactly a wise mind. In Vietnam we had people like General Westmoreland who was running the war, and there were a few generals who, from the very beginning, said that the war was unwinnable. But yet when we finally had to withdraw, Westmoreland and some others continued to claim that we would have won if it hadn’t have been for the free press, and because of the free press, anti-war dissent grew and they basically said we got stabbed in the back just as General Ludendorff said the same thing about Germany after World War I. My point is that these military leaders, they have a very narrow view of things, and even a civilian but a militarist like Dick Cheney who never wore a uniform has this narrow view that you can just rule the world by military might. And we have seen countless times in history that that doesn’t work. I mean, I don’t have to point out the results of World War II.

You would expect the military on the ground to be more rational and to have a better grasp of the situation…

It can be like that, there were some generals, General Weyand was one, General Shoup who was the commandant of the Marine Corps during an early part of the Vietnam War who said, “This is an unwinnable war, we need to get out of it right away,” but it’s a mixed bag. Again, there’s also been a change in the US, Rush Limbaugh, this hardcore fanatic who is also one of the most popular talk radio hosts and you can go into any military office practically and they’ll either have Rush Limbaugh on or Fox News. Preparing for the Iraq War, I was on active duty and had reason to go into the unit’s intelligence office and they always had Fox News on – that’s where their intelligence was coming from, listening to what Fox News says, which is this extremely militaristic neocon news outlet.

The US initiated and waged so many military interventions in so many places – can you think of a single successful outcome?

What has to be understood is that the people that are making these policies are irrationalists.

No, and that’s what we need to recognise. The people running the military, the people who make these types of military decisions don’t know what they’re doing. They don’t! We have got to realize and stop giving them deference. This is the same sort of thing that happened a hundred years ago, 1914, all these militaristic regimes, and I’m including Britain because they were militaristic with their colonies, as was France and Germany, and when things started getting unstable with the assassination in Serbia, these militarists were all allowed to mobilize the military and the next thing we had was World War I. And we’re doing the same thing now. We’re controlling it in the sense that we keep it to smaller wars, because we have such an advantage… but it’s still destabilising the world, and ISIS would never had occurred had we not invaded Iraq. What has to be understood is that the people that are making these policies are irrationalists.

That’s scary.

It should be, but that’s exactly what they are. They’re irrationalists and that’s how people have described fascists in the past, they had a very irrational understanding of the world and we saw how much catastrophe they brought upon it. We have the same sort of irrational people now.

So you’re basically comparing the neocon way of thinking to fascism?

Absolutely. The foundation of fascism was militarism, the foundation of Soviet communism was militarism; militarism was the common denominator and that’s the common denominator that hooks the neocons to these groups.

Another common denominator is the temptation to suppress dissent. When we talked to former CIA analyst Robert McGovern, he pointed to that new ruling alliance, the congressional-military-industrial-media complex. Basically there’s no dissent in Congress and almost no dissent in the press. How did that happen?

I don’t know, I wish I knew.  I think the hubris that came along out of the war with Iraq in 1990, there was quite a large anti-war movement against that and there were predictions about how it was going to go bad and then the US ‘won’ it so handily, or we thought we did. I was there, Iraq did not fight; they put up a nice show but as soon as the war began they quickly pulled back as much as they could and the US declared what a great victory we have here, our weapons are so effective and what not…  Then Dick Cheney came along and said, “The world is now subject to our military domination,” in so many words.  So that really built the American exceptionalist ideology up, then you have the fear that came with 9/11 and there really was what could only be described as a form of mass hysteria with that attack. It shouldn’t have been, but I saw that among my fellow soldiers, among my acquaintances, people I’d have political discussions with; before 9/11 we could speak rationally but after that it became irrational.

9/11 was quite a while ago now, but the fear of terrorism is being kept alive – to be fair, by terrorists themselves!

So we had 9/11, the Iraq War, we had the false propaganda that Saddam Hussein was partly responsible for 9/11 and a lot of people in the US still believe that. That fact that people still believe that nonsense shows how effective that propaganda was, and when you have people like Fox News constantly repeating it, we’ve got a huge propaganda machine right there that’s also pulling along the other media, even the so-called liberal press: The New York Times, The Washington Post. The New York Times actually suppressed a story by one of their reporters, James Risen, years ago on what the NSA was doing and they only published the story a year later when Risen had written a book and now Risen is being investigated and harassed by the government for not revealing his sources. We’re not there yet, but we’re adopting many of the forms of a police state. Once people no longer have the right to know, a right which is embedded in the First Amendment, you no longer have a functioning democracy.

How do you explain why we don’t see the same anti-war movement as during Vietnam? Why aren’t there more dissenting voices?

During the Vietnam War we had the draft and when we ended the draft that took out a lot of internal dissent from the military, the generals knew that and they didn’t want an army where soldiers could be forming anti-war movements within the army. Then with the media, we started using a lot of information management techniques that came out after the Vietnam War, we figured out how to neutralise the media by embedding them with units so they became friends with the soldiers where they don’t question and challenge as much. We’ve also military leaders, like Petraeus, who were given god-like status – this whole idea of Petraeus being this genius in Iraq, nobody questions it…

Having said all that, terrorists do exist. How do we deal with them in a constitutional way?

Unfortunately, we can’t undo 30 years of Mid-East policy. What people in the Mid-East see is the injustice of having no forum to bring their grievances to; we’ve been acting through puppets like the Saudi royal family where they buy all of our excess weapon production and in return we get oil at a cheaper price than we might have to pay in a genuinely free market, so it’s been a huge conspiracy at the expense of the people who actually live there. We’ve been happy to access as much oil as possible as cheap as possible even though it’s going to run out eventually and when it does the Saudi Arabian people are left with nothing. We can’t go back and undo that, but we can adopt a rational and ethical policy. We had the spectre this summer of what was going on in the Mid-East with Gaza and that generated a lot of anger, maybe there has to be a genuine diplomatic effort to resolve the issues in the occupied territories.

Germany is one of Israel’s staunchest supporters, we’re part of the problem… not just the US.

Right, and it’s not to be anti-Israel, it’s to say to this country – just like somebody needs to say to the US – that you need to bring yourself back under the rule of law, you can’t have a military occupation that goes on for 50 years. Just the fact that the very strict military occupation is an open sore to a lot of the people who are fighting us that we call terrorists – it’s not about defending the terrorists in any way, but that’s part of it. The other part of it is that we had a democratic election, the Muslim Brotherhood wanted Egypt. I’m not defending the Muslim Brotherhood, but we can’t think that we can just pull strings behind the scenes and put a military ruler back in place, a very harsh one. The trouble there is ongoing, I just read a report the other day about how many secret detentions there are and death sentences.  Haven’t Europeans seen up until 1989 the effect that military occupation has on people?

The army of the US government used to recognise the importance of diplomacy: it doesn’t mean that we blackmail our way through and call it diplomacy, what Hillary Clinton calls soft power! Even in Clausewitz’s book On War, the Bible of the military, the very first chapter is about trying to avoid war, pointing out that you always have to balance the cost versus the objective. Unfortunately our military are like kids who want to get to the good part – the rest of the book, tactics and how to fight. The statesmanship part of it has been long since forgotten but that’s the basis of strategy. Vietnam was a perfect example. If you look at World War II, the people running the German military were fanatics and crazy for going on to Stalingrad. The Soviet Union stayed in Afghanistan until they self-destructed. If the United States had stayed in Vietnam we’d have bankrupted ourselves by about 1980 but instead we got out. The anti-war movement provided a sounder basis for strategy than the actual generals had.

Well, if Democrats are barely any better than Republicans, and European governments support US foreign policy no matter how irrational, what is the alternative? As citizens you feel pretty powerless…

Believe me, I don’t have an easy answer. It is critical that journalists, activists and others make more and more people aware of this, make them realise that we’re right back to 60 years ago when we had hardcore militarists who were acting irrationally at the expense of all the rest of us, so we better become informed so that we can overcome that sort of irrational foreign policy. That’s the bottom line. I’m currently working with some former intelligence officers and some former military, putting together a small organisation to advocate for the restoration of the rule of law. There are other groups like it, such as Veteran Intelligence Professionals for Sanity, there’s a good group in the US called Veterans for Peace, a good group in Israel trying to establish rational policy for peace. But our policymakers pay no attention to history and they act as if they’re above it.

Maybe that’s the answer: to send our policy makers back to history class…

Well yeah, we have to make people aware of the consequences of their policies. I visited a few different places on this trip, I visited the Somme battlefield where totally crazy military leaders had these two armies [the French and German during World War I], and I went to Nuremberg, where the US held irrational military leaders accountable for their crimes during World War II. The irony is that we’re now following a similar irrational path and we need to get off that path and realise, like Clausewitz taught, some wars are unwinnable and when they are, you stay out of it.