08/23/13 – Maj. Todd E. Pierce – The Scott Horton Show

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All right, y'all, welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show.
Full interview archives are at scotthorton.org, almost 3,000 of them now, going back to 2003.
Also, you can follow me on Facebook, Twitter and YouTube at slash scotthortonshow.
And our first guest on the show today is Todd E. Pierce.
He retired as a major in the U.S. Army Judge Advocate General Corps in November 2012.
His most recent assignment was defense counsel in the Office of Chief Defense Counsel, Office of Military Commissions.
In the course of that assignment, he researched and reviewed the complete records of military commissions held during the Civil War and stored at the National Archives in Washington, D.C.
And I'm not sure the word Guantanamo is not in that bio, but that's the point.
You were a defense attorney, a JAG lawyer, defense attorney down in Guantanamo Bay, right?
Todd, welcome back to the show.
Thanks.
Yes, that's correct.
And being that defense counsel, I had to do extensive research to respond to the various arguments that the government prosecutors kept coming up with, kept coming up with because they changed a little bit over time.
Well, they changed quite a bit, right?
Because if I remember the way it went, I guess the afternoon of September 11, Dick Cheney and David Addington decided that this is not a crime.
This is an act of war.
And so all bets are off.
And by all bets, they meant everything but the words, the president shall be commander-in-chief.
And he can now make up whatever he wants and do whatever he wants.
And that's where the entire military commissions came from, was just the vice president's office and their made-up theories of whatever.
They didn't rely on the previous 200-year tradition of American military trials in going forward at all, really, did they?
And that's exactly right.
John, you and a couple of others, David Addington and other attorneys in both with Cheney and the Department of Defense come up with these arguments.
And I think you really have to go back and look historically in how the whole idea of a free speech developed.
As you know, we have it as a First Amendment, and James Madison pointed out that it was there to provide the means for the American people to be the sentinels over the government.
The first time that it was threatened was under the Alien and Sedition Act of 1798 that the Federalists passed, and that was allowed to expire when Jefferson took office.
But it was in such disrepute amongst all Americans, in such an egregious violation of the First Amendment, that that sort of thing was really discredited.
I suspect that when the Civil War came along, and let me make a disclaimer, this is not to bash Lincoln, because the South had their own means of suppressing dissent.
And the fact was, we were in a genuine Civil War.
To offer a little bit of an explanation, Lincoln did have...he was basically in D.C. cut off from the North.
So, in essence, we immediately, because of the war, martial law comes into existence just by the nature of being at war.
But at various times, it was declared both by Lincoln and by various military commanders.
And so, as you know, the habeas corpus was suspended, and by doing that, that too basically creates the conditions for martial law.
Well, and you point out here in the article, Todd, that the court said back then, maybe this is just after the Civil War, the Milligan case, or others too, that there's really no such thing as martial law.
There's martial rule, which means there is no law.
It means that officer over there is in charge, and what he says goes.
That's not law.
Exactly.
And the perfect example of that is General Burnside, who was the commander of the Ohio District, which covered Ohio and Illinois, who was, in fact, suppressing newspapers, arresting publishers.
The Chicago Times was shut down, and their presses...everything was confiscated.
Most famous case is Clement Blandingham, who was arrested under a order issued by General Burnside, and others were.
It wasn't just Blandingham.
Some commentators who've written on this in the past have said, well, you know, this is a very isolated incident, and, you know, it didn't really happen very much.
I've been doing some research, both in the National Archives, but recently also, because this really goes to...this is genuinely a threat to the First Amendment and to democracy itself.
Because what the First Amendment really means, if you look at it in its totality, is the American people's right to know, and that is a critical thing that people need to know.
It's our right to know, to keep an eye on the government, and that has been totally subverted now, through a variety of means, but in particular, by going back to the Civil War cases now, where we actually have the means, and you should be following the Hedges v.
Obama lawsuit, which challenges Section 1021 of the NDAA, where it provides that the law of war will be used to determine the disposition of people arrested, given the authority under Section 1021.
So, it's really a chilling effect upon the First Amendment journalists, bloggers, etc.
And you look at everything going on with Snowden, Snowden is charged with, or supposedly charged with, Section 793D, which is a provision under the Espionage, and I think it's critical here.
It's also called, under Chapter 37, the Espionage and Censorship Chapter, and it's a leftover from the 1917 Espionage Act, but also the 1918 Tradition Act, and though that was repealed by various court decisions over the years, it obviously remains in part here in 793D and E, which I can explain a little bit, if you wish.
Sure, yeah, well...
But under 793D, very quickly, Snowden is being charged with having somebody who was authorized to have access to classified information, who then communicated it to someone else.
That's 793D, but under 793E, it provides that somebody who doesn't have authorized access to classified information is in violation of 793E, if they communicated it to someone else.
And strictly speaking, and not to say the government is using it this way, but strictly speaking, it opens up to legal liability anyone who transmits, communicates information that has been released by WikiLeaks that they might find in the New York Times, or some other publication.
Again, that's strictly speaking.
But as been said by judges in the past, including most recently Justice Roberts, you have to look at a law not for how it is being applied, but rather for how it can be applied, and how it can be applied is that this could reach a whole lot of people who would never expect that they're violating a law, or that they're communicating classified information, because it's published.
But it's still classified.
Well, you know, Jeffrey Toobin, who's been basically the lawyer on TV most likely to condemn Greenwald and Snowden, he pointed out, I think correctly, as you're saying right now, the other day on TV, that technically Woodrow Wilson's law does say that they can prosecute Glenn Greenwald, I mean, assuming that he does what he does inside the United States.
I guess universal jurisdiction, we'll have to get to that in a second, because that's all bound up in this, but that actually the law, Woodrow Wilson's laws do cover, as you said, the Sedition Act, or I forget which section of which it was, the Espionage or Sedition Act, actually would cover a reporter who continues to transmit with what documents someone with access gave him.
Correct?
Well, and yeah, right, he's right.
I don't like to agree with him.
But people need to realize that it does.
And the point is, so again, these laws were used during the 1950s, during the McCarthy period to suppress speech and whatnot.
With the case in 1969 of Brandenburg v.
Ohio, the Supreme Court came out and clearly said that speech can only be prescribed if its threat of danger is imminent.
And so we haven't had to worry about it too much.
During the Vietnam War, which was much closer to a genuine war, even though undeclared, then, you know, this is terrorism.
Terrorism is not war.
Contrary to George W. Bush and other people, this should not be invoking, this should not be bringing the war powers into any argument of these vastly expanded powers.
But in any case, during the Vietnam War, obviously, you know, the press and whatnot did have the right to speak, not although both presidents during then, Johnson and Nixon, both tried to suppress it and harass dissenters and whatnot.
But they had the protection of, you know, the Supreme Court and the First Amendment.
Coming out of that war, and this is something I think is important, generals like Westmoreland and General Davidson won't get into how erroneous they were on whether, you know, the conditions of the war and whether or not it could have ever been won.
I would say no.
But they came out of it, and just like General Ludendorff after the First World War with Germany, come up with this stab in the back legend, this accusation that, yeah, they could have won the war, but for those people who stabbed us in the back, mainly being the press and then the dissenters who, you know, followed the press.
And so they actually wrote, you know, the next war, we're going to adopt censorship and means to enforce it, etc.
General Davidson particularly would be a fanatic, I would say, just like Ludendorff.
And unfortunately, and there's some other influential books coming by military writers adopting that same theme, that it seems to have been internalized within the defense establishment, and we're seeing the fulfillment of that today in a variety of ways.
It wasn't instantaneous.
It's been developed.
But with the 9-11 attack, and, you know, Cheney's Unitary Executive Theory and whatnot, that was all immediately grabbed onto.
You probably, specifically, looked at the Civil War cases and saw, here's an opportunity to sidestep the First Amendment.
And even though Milligan had firmly repudiated all the military commissions that had gone on under the conditions that they were held following the Civil War, they've come up with very clever arguments to say that, yeah, under the war powers, and we're at war, it's under the war powers, the President can do anything.
And now we're just seeing this grow and grow and metastasize into our own legal system of Section 1021.
Another point, though, is everything that was taking place during the Civil War, and it has to be known that Lincoln declared nationwide martial law in 1862, so all these military commissions that came after that were specifically under Nixon's declaration of martial law.
They were only violations of martial law, which does impose its absolute loyalty requirement on everybody within the territory, but cannot extend that requirement to anybody outside the territory.
But the government military commissions prosecutors, in following Supreme Court Justice Thomas Lee in the Hamdan dissent he made, readily adopted the Civil War case to argue, yeah, we can assert martial law authority over the entire world, and obviously that discredits us in the eyes of the world, as they see what's being done.
So charging somebody for, in essence, aiding the enemy who was picked up in Pakistan is a total subversion of the Civil War cases.
But nevertheless, that's the argument they're making, the government prosecutors.
So now, there's quite a bit to go over here, if I can get it all straight with you, you know.
I'll probably take the rest of the time just to follow up.
But first of all, so this Milligan case, after the Civil War, as you said, declared that all of the military commissions and everything that they had done was illegitimate, at least anywhere off of the battlefield, that anywhere where the courts are open for business, then it's their jurisdiction, not some army officers.
And you're saying that they found their way around that, really, just by invoking the few hundred-member group, Al-Qaeda, which was reduced to a couple of dozen men after the fall of 2001.
They were able to pretend that not only Afghanistan and, well, the border region to Pakistan, where they were letting them escape, the survivors of the bombing campaign escape, that not only was that the battlefield, but that the entire planet Earth, as the Bush lawyers told the court, yes, even a little old lady in Switzerland who accidentally donates money to a Hamas charity in the Gaza Strip somewhere, or I guess Glenn Greenwald, if he came home to New York, that the whole world is a battlefield, and that they can do what they want, put them in Guantanamo Bay or in Bagram or in a torture dungeon in Poland.
There's no law that can prevent them from doing that.
Just in the name of Al-Qaeda, which, even according to the government, hardly exists.
I mean, it certainly was never the Soviet Union that dominated Eastern Europe all the way to North Korea.
Right.
That is absolutely the argument they're making.
And as you point out, even during the Cold War, first during the Vietnam War, but then during the Cold War, we never tried to, you know, we put aside Section 793-D and E both, and we had the case of Daniel Ellsberg, who did the patriotic thing.
If you want to look at patriots and compare them, again, look at these stab-in-the-back accusers like Westmoreland.
These guys are the ones who are doing harm to us.
The First Amendment is our strategic strength, and I make this argument elsewhere.
We have the advantage of a democracy of having more than a few eyes looking at these issues and deciding what's in the best interest of our country.
The Soviet Union, Nazi Germany, they centralized that decision-making, and, you know, as few as one person to maybe a dozen or whatever, but in any case, they had that authority centralized, and so they didn't have the wisdom that more people might bring to it.
And that's been our strength.
That's why Nazi Germany did not last very long.
You know, Hitler got the wild idea to invade Russia, for example.
The Soviet Union, you know, they didn't allow dissent when the Afghan war was going on, so they sat there and bled themselves dry, you know, with that war.
Whereas in the Vietnam War, and thanks to Daniel Ellsberg and others, we got to really have a discussion whether or not this war is in our favor, whether it's in our advantage.
You had Westmoreland deliberately lying and manipulating intelligence before the Tet Offensive for his own personal advancement.
He had, you know, it was very vain, and he had accordion books, recent books on him, and had political ambitions, and saw this Vietnam War as a stepping stone to possibly becoming President.
So he was manipulating intelligence to make it look as if he was succeeding, when in fact, you know, he was not succeeding, and in fact the Viet Cong was growing and leading to, so that we weren't prepared for the Tet Offensive, so you could really say that Westmoreland himself and a couple of the generals around him, their personal responsibility for thousands of additional American casualties.
And so Daniel Ellsberg and others who were leading the anti-war fight were the true patriots.
They got us out of a war that was always unwinnable.
General Wyand, who had said that at the very beginning, one of the few generals, along with a few others who did take an ethical stand, but again, they were trampled under as far as being heard.
But there's a CIA analyst, Sam Adams, there's actually a group of people, Ray McGovern and other former intelligence officials who have formed a group called the Sam Adams Intelligence ... something for Integrity and Intelligence, I'm sorry, I'm missing the name right now, but Sam Adams was a CIA analyst who tried to go up the chain to say, yeah, Westmoreland is doing this, and you know, it's going to be catastrophic consequences.
And the DOD, Department of Defense, they said, no, no, you've got to listen to us.
And the CIA deferred to them, and the Tet Offensive was a result.
Well, and there's a lot of other examples too.
Colleen Rowley on the show said, if only there had been some leaks inside the FBI about how frustrated they were trying to do their job prior to September 11th, they maybe could have stopped it if there had been at least more open communication between the different police agencies, and even to the extreme of having to leak.
If only someone had leaked a couple of things, it might have made the difference there.
But now I want to ... back to the legalities here, I want to make sure that I understand the way this works, Todd, is that you're telling me that the Milligan decision has basically been rendered moot by just the fact that they ignore it.
They go, they cite Lincoln's policies and not the Milligan decision that overthrew them after the fact, when it was too late anyway.
And then, but you're also saying that due to the backlash against the effect that journalism had on the Pentagon's ability to wage the war they wanted to wage, or the way they wanted to wage it anyway, in Vietnam, that they found these, basically as many foreign policy loopholes in free speech as they possibly can.
And this is how they even justified, I think you were implying there, all the censorship in the first Gulf War, cleared by military censors.
At least they admit it at the bottom of the screen back in 91, right?
Right.
But then now you're saying that basically they have so many exceptions to Milligan and so many exceptions to Brandenburg that they could use their war powers to claim, I don't know, Rio de Janeiro, the battlefield, and abduct Glenn Greenwald and take him off to Morocco to be tortured.
Right.
Invoking the war powers, and so-called war powers, because that's really a ... that was a construct of Lincoln, and again, I'm not trying to demonize Lincoln, but his administration at the beginning of the war, because they had no means of passing legislation.
So they had to get out, and they had the Constitution as a barrier.
So they had to get around it.
So they came up with this idea, well, under the war powers, because there is a provision in the Constitution that says the President is the Commander-in-Chief, they made the argument that yeah, under these war powers, Commander-in-Chief can do anything under the law of war, and the fundamental principle of the law of war is you can do virtually anything, although that's been constrained by the Geneva Conventions and the Nuremberg Principles, but so long as there's a military necessity.
So in this article that was just published, a consortium news that I'd written, that, you know, you go back, this William Whiting, who was a Solicitor General of the War Department during the Civil War, made the argument that, you know, somebody who might say something embarrassing to the Army is him or herself committing a hostile act, and therefore is subject to military detention.
And that's what we've adopted.
You know, the Military Commission's prosecutors even cite, whether it was an oversight or whether deliberate, to a case of a newspaper published in Missouri who was arrested and tried by Military Commission during the Civil War.
Again, Milligan repudiated much of that.
What the little loophole that they grabbed, you know, following 9-11, was the Kieran case, where they did, too, hold Military Commissions, but it was an entirely different situation.
The Kieran case was eight enemy soldiers, the Germans, coming into our lines, passing to our lines, onto our territory, and once you pass onto our territory, whoever you are, whether you're, you know, unless you distinguish yourself as an enemy soldier, everyone owes this absolute duty of loyalty to the sovereign under, you know, this very ancient principle.
So when they passed into our lines, as the Supreme Court said, you know, the offense was complete once they passed through our lines.
By being there without uniform on, they were acting in a perfidious manner, basically, and that was the offense.
That was a violation of the law of war.
They didn't reach any other conclusions.
The Supreme Court did not.
Although they'd been charged with conspiracy, the Court did not address that issue.
But yet, in order to try to provide a precedent for what they're arguing today, the prosecutors have gone back to Kieran and say, see, you know, conspiracy is a war crime.
Well, it isn't.
It's only that Kieran was able to be charged because of having passed through our lines.
The Supreme Court did not even get to the issue of whether or not that was a conspiracy.
But in Kieran, because it was a completely different situation, it said that Milligan does not apply here.
And because Milligan and all these cases beforehand were all martial law cases in the United States while it was at civil war, Kieran was an entirely different situation where actual enemy soldiers had passed through our lines.
So you cannot compare.
It's apples and oranges.
But they've used Kieran to sort of bring back pre-Milligan cases.
And the thing that's important to know is that this totalitarian law all has its roots in law of war principles, like martial law.
An excellent book to read is The Dual State, by a German-Jewish lawyer who left in 39 or 40 and wrote a book called The Dual State.
And the first line in it is, Germany is now under martial law.
Germany coming out of the First World War and under the influence of people like Ludendorff have never again, we're not going to allow the Paris-Ellesby staff in the back, we're not going to allow any form of treason.
Defining treason, and prior to Geneva, the United States, too, defined something called war treason.
And war treason was just those things, and the Germans called it high treason, but again, the same thing, just those things that might embarrass, serve to embarrass the military.
And my article goes into that a little bit.
Well, and you know, anybody who's been around for 10 years complaining about American foreign policy, like, I don't know, me, I kind of raised my eyebrows at this, because I've been called objectively pro-terrorist a bunch of times, paraphrasing Orwell, they say, you know, he said, if you're a pacifist, then you're objectively pro-fascist, although he was a rioter, I don't think he was trying to get anybody imprisoned at the time, anyway.
So the theory in America has been anyone who knows better than the Republicans and Democrats, which is everybody who's not a Republican or a Democrat, when it comes to foreign policy, or would like to point out the counterproductive nature of America's foreign policy, or you know what, even if they side with the enemy, they've got the right to say so, anyway.
Point being, if I'm making Donald Rumsfeld or Robert Gates or Chuck Hagel look bad, well, then I'm undermining the war effort.
And if they've decided that spreading regime change around the Middle East is the right policy, the right prescription for what ails us or whatever, I'm not in a position to second guess them, even if my loyalty is not in question about if I want what's good for America, the country or not, I'm being disloyal to them, the state, and that's what they won't tolerate.
And so what's different from anyone, me or my next-door neighbor who doesn't have a radio show, just anybody who knows better than the stupid, horrible things that their government does, what's to keep any of us from being NDAA'd right out of here at this point?
I think that's what you're telling me, is there's no law preventing it anyway, there's only policy decisions preventing it at this point.
When we step outside of the Constitution, as we've done, using the law of war as a cover, then we are outside the protection of the Constitution, following those precedents of the Civil War, which were repudiated, and the arguments that the government is now making.
So you're absolutely right.
Anybody who's expressing dissent, and George Bush captured it perfectly when he said early on, either you're for us or you're for the terrorists.
And that's the same logic that was used by the Germans for the People's Court.
And there's an excellent book on the People's Court by H.W. Koch, and he points that out.
That was the logic of it.
And again, it's the most extreme logic of the traditional view of war, and war is called a rule of non-intercourse.
It basically says that when a nation goes to war, it's a very ancient principle, when a nation goes to war, the people of one belligerent are the enemy of the other people.
And again, that's been modified over the years to bring more humanitarianism in, but it's been gone back to now, to basically say, during the Civil War, that anybody who's in dissent is basically giving aid to the enemy, and therefore subject to military detention.
Tell me this, do you think Glenn Greenwald is safer here in the United States or in Brazil?
I don't want to give an opinion on that, because I don't know.
Well, I mean, legally speaking, maybe not Glenn Greenwald, but say a hypothetical reporter who was doing some really good stories and was an American citizen living in a foreign country.
Are they more protected from the war powers in the foreign country, or, you know, well, you know what I mean.
If they're here in the United States, they're a lot easier to grab, but then they would presumably have more protections.
Yeah, I think in the United States, you can still claim without much dispute that the Constitution provides protection to your rights.
The Boston bomber is a perfect example.
You know, he was arrested, and he's now before an Article III court, a regularly judicial branch court.
Michelle Bachmann, Representative Bachmann, who's a big cheerleader for military commissions, her first words were, the President needs to declare him to be an enemy combatant and put him under military detention.
In other words, remove him from under the Constitution, even though he's in the U.S., and even though he's a U.S. citizen.
So, if he had been captured somewhere else, and maybe, you know, not necessarily in Asia, but, you know, Europe, as the Bosnians were, like Bohemian, you know, the government could say, yeah, he's an enemy combatant, captured overseas, so therefore we can hold him under military detention.
So at least here, you know, you still have at least the cover, perhaps, of the Constitution.
But again, under Section 1021, that's been removed.
Well, and that's the thing, I mean, he ought to be a U.S. person, even if he's in Brazil, because he's a citizen, but...
Right, absolutely.
I'm sorry, we've got to go, we're all out of time, but everybody, please go and read this article, Making the World the Enemy, at ConsortiumNews.com.
Thanks very much, Todd.
Also, follow the Hedges v.
Obama lawsuit, that's critically important.
Okay, next time.
Thanks a lot.
That's Todd Pierce, everybody.
We'll be right back.
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