an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Three Guantanamo inmates hanged themselves on Saturday. Could it be that holding people for years in a limbo of rightlessness, telling them that they may be prisoners until the end of the war on terror, which has no end, and reminding them that their future does not exist, might drive them to suicide?
Absolutely not, according to the Guantanamo commandant, Rear Admiral Harry B. Harris, Jr. No American needs to suffer a single pang of conscience or a single moment of doubt about the endless detentions at Guantanamo. Don’t think of these as suicides, Harris tells us. Think of them as brutal attacks, sort of small-scale 9/11s. “They are smart, they are creative, they are committed,” Admiral Harris said. “They have no regard for life, neither ours nor their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.” (Other U.S. officials dismissed the suicides as a "PR stunt".)
Those fiends in Al Qaeda, is there any atrocity to which they won’t stoop? Today we learn that they actually hid from their guards to commit suicide. The perfidiousness of their ruthless attack boggles the mind of decent Americans. They have taken advantage of our good-hearted, trusting nature and hit us below the belt by killing themselves.
Not only that: the New York Times reports that General Bantz J. Craddock, the Southcom commander, thinks the suicides “may have been timed to affect the Supreme Court decision in the Hamdan case” about the legality of military commissions. “This may be an attempt to influence the judicial proceedings in that perspective.”
Eureka! Now we can see the full depths of their plan. Recall the important warning in the Pentagon’s National Defense Strategy document: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” ‘Strategy of the weak’ is another term for asymmetric warfare. The idea is that the terrorists will ruthlessly manipulate law and public opinion to tie down the American Gulliver with a Lilliputian’s net of rulings and regulations. You might think that there is a difference between, say, protesting before the U.N.’s Committee Against Torture, litigating in the Supreme Court, and blowing up innocent civilians. Or between blowing up innocent civilians and hanging yourself in jail. But it’s just not true. They are alternative faces of the same evil, and we have to be on our guard against all of them.
The argument is this. Nobody can prevail against the United States on the battlefield. So they have to prevail against the United States off the battlefield, by swaying U.S. public opinion, inciting hatred or contempt for the United States around the world, or even getting our own courts – packed, of course, with liberal activist judges – to tie the hands of our military. (As Rambo asked, “Are they going to let us win this time?” Not if the lawyers and judges have their way!)
It follows that anything that either makes us look bad, or sways our judges to administer the stab in the back on the home front, is a weapon of the weak. Jailhouse suicides make us look bad – and the three men who killed themselves were hardened Al Qaeda types. Ergo, it was an attack on our forces using a weapon of the weak. Don’t think they killed themselves because they were unhappy about their potential life sentences without charges or a trial. They weren’t unhappy, only strategic and ruthless.
So, instead of national shame, Harris and Craddock give us national shamelessness.
You might think that their paranoid world view is confined to the true believers who write stuff like the National Defense Strategy or, like Admiral Harris, parrot its line. Would that it were so. Unfortunately, the same way of thinking has begun to enter our jurisprudence. Remember Judge David Trager’s opinion dismissing claims by Maher Arar, who was kidnapped by U.S. authorities and rendered to Syria for torture. According to Trager, allowing Arar to pursue his claims in court might reveal information that would make us or our allies look bad, and that would undermine national security. As I observed here, the principle seems to be that anything that makes us look bad undermines national security, and therefore the worse our conduct, the more it has to be insulated from accountability. And just last month, Judge T.S. Ellis III threw Khaled el-Masri’s case against U.S. officials out of court because his lawsuit – based on his kidnapping, rendition, and imprisonment – might reveal state secrets and therefore damage national security. The state secrets it might have revealed are, of course, details about outrageous U.S. government conduct. The logic is impeccable. Public knowledge of outrageous U.S. conduct might provoke a backlash that could make the U.S. halt the conduct. That’s the strategy of the weak. They can’t beat us on the battlefield, so they hope to resort to the ultimate evil action: publicizing what we do.
Of course, there might be another way to look at it. If I may enlist the help of a philosophical heavyweight, I will quote Immanuel Kant (in Perpetual Peace): “All actions relating to the right of other men are unjust if their maxim is not consistent with publicity.” As Kant explains, “if I cannot publicly avow it without inevitably exciting universal opposition to my project, the necessary and universal opposition which can be foreseen a priori is due only to the injustice with which the maxim threatens everyone.” If it can’t be publicized, it can’t be just.
Well, Kant is not exactly the favorite philosopher of the Bush administration and its supporters. Robert Kagan, whose book Of Paradise and Power beautifully articulates the philosophy underlying the National Defense Strategy, sneers at Europeans for wishing to use international fora and judicial processes to create a “Kantian paradise” – tying down the U.S. with the imaginary fetters of law and morality. If the Pentagon had to choose a different European philosopher, it would evidently be Nietzsche, who argued in On the Genealogy of Moralsthat morality is simply the subtle device of the weak to master the strong.
But the Bush administration is not big on European philosophers. So perhaps we can develop the philosophy in purely Bushian terms. To highlight its logic, I will present it in mathematical form, the way that Spinoza presented his ethics:
Axiom 1: We are good people. Axiom 2: Our enemies are bad people. Axiom 3: Anything that helps good people beat bad people is good.
Corollary 1: Whatever we do to beat our enemies is good. Corollary 2: Whatever hinders us from doing what we do to beat our enemies is bad. Theorem 1: Anything that makes us look bad is false. (Proof: If it makes us look bad, it must be false, because, according to Corollary 1, what we do to beat our enemies is good, not bad.) Corollary 3: It can’t be true that the Guantanamo prisoners killed themselves because of how we treated them. (Proof: That would make us look bad. Whatever makes us look bad is false.) Surprising Corollary 4: Facts that make us look bad are false. (Proof: Follows directly from Theorem 1.) (Comment: If you thought that facts can’t be false, you haven’t understood that truth and falsity are moral terms: truth is what good people say, falsity is what bad people say. If bad people state facts, those facts are false.) Theorem 2: Laws that constrain us are bad. (Proof: Follows directly from Corollary 2.) But – Axiom 4: Good people support the rule of law, and that makes the rule of law good. Corollary 4: We support the rule of law. (Proof: By Axiom 1, we’re good people; and by Axiom 4, good people support the rule of law.) Surprising Theorem 3: Laws that constrain us don’t exist. (Proof: By Theorem 2, a law that constrains us would be bad. But by Axiom 4, the rule of law is good. Therefore there cannot be such a thing as a law that constrains us.) Axiom 5: Anything that anyone uses against us is a weapon of our enemies. Decisive Theorem: Any international forum or legal argument that might constrain us, or anything that might make us look bad, is a weapon of our enemies. Axiom 6: We’re strong and our enemies are weak. Corollary 5: Any international forum or legal argument that might constrain us, or anything that might make us look bad, is a weapon of the weak. To put it in other words, it is an act of asymmetric war against us.
I am puzzled by Kant's comment that, “if I cannot publicly avow it without inevitably exciting universal opposition to my project, the necessary and universal opposition which can be foreseen a priori is due only to the injustice with which the maxim threatens everyone.” It implies that morality is determined by public opinion, albeit with "public" defined as every person minus one. If, however, morality is determined by some standard other than public opinion(Kant's categorical imperative, for example), then could one person not be right and everyone else wrong?
Dude, I'm not sure if I was reading that last part closely enough, but if it does what it seems like it does, all I can say is that it's brilliant. I think you've just proven that I've been wrong all these years and the GWB fanclub has been right all along...you SOB.
As usual, the intellectual elite trying to confuse and manipulate by unnecessarily complicating otherwise simple things. Actually, the whole thing (i.e., Bush’s policy) can be described with one word:
truthiness 1. A variation of truthfulness derived from the word truthy (archaic and rare or dialectal) 2. The quality of being "truthy, not facty." (currently popular definition by Stephen Colbert) 3. The quality by which something is known or believed emotionally or instinctively, without regard to evidence or rational thought. 4. The quality of adhering to incorrect concepts one wishes or believes to be true.
David, this is designed to provoke and to demonstrate the absurdity of some of the underpinnings of DOD doctrine. It succeeds very well in doing both things and is very well suited to the blog medium. Congratulations.
Henry, I think you need to remember that does not mean the same thing by "publicity" that we do today. For him it related explicitly to the "reading public," which is to say the thin stratum of society which is intellectually active and which influences public policy. He sees "publicity" as a means for deepening the role of morality in politics, not diluting it.
Proof that Liberals are Justified to Criticize Bush in any Way
Axiom 1: We liberals are smart. Axiom 2: Bush is dumb. Axiom 3: Anything that makes smart people look smart is good.
Corollary 1: Whatever we say to make Bush look dumb is good. Corollary 2: Whatever hinders us from making Bush look dumb is bad. Corollary 3: It can’t be true that keeping dedicated Islamist terrorists under lock and key is justified, because that would make Bush look smart. Surprising Corollary 4: Facts that make us look dumb must be false. Theorem 2: Any common sense that constrains our criticism of Bush is by definition bad. (see Corollary 2.) Axiom 4: Smart people heed common sense, so common sense is good. Corollary 4: We support using common sense. Surprising Theorem 3: Common sense that constrains our criticism of Bush should be ignored, because it couldn’t be correct. Axiom 5: Anything that anyone says to make us look dumb is an argument of a Bush Supporter. Decisive Theorem: Anything that anyone would say in response to our criticism of Bush is merely a Bush Supporter supporting Bush. Axiom 6: We’re right and Bush supporters are wrong. Corollary 6: Anything that anyone would say in response to our criticism of Bush is an unjust argument. To put it in other words, we liberals are justified in any criticism we make of Bush, regardless of facts or common sense!