06/17/14 – Maj. Todd Pierce – The Scott Horton Show

Alright, you guys, welcome back to the show.
I'm Scott Horton.
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Alright, so now our next guest joining us by Skype is Major Todd E. Pierce, retired, of the U.S. Army.
He is formerly a defense attorney, a JAG, Judge Advocate General, defense attorney from the Guantanamo Bay Trials.
Now he's a writer, and this one is called We're All Cheneyites Now, and it's a very important piece from April, and I do hope that you'll look at it and maybe post it and pass it around, and I do think it'll greatly enhance your understanding of the situation that we're in here in post-post-post-constitutional America.
Welcome to the show.
How are you doing, Todd?
Real good, Scott.
Great, great.
Good to talk to you again.
Appreciate you joining us here tonight.
And so, on the afternoon of September 11th, David Addington and Dick Cheney decided that, never mind felony statutes and grand juries and FBI agents, this here's a war.
And so, what all is the significance of that?
Well, what they did was they took bits and pieces from other legal cases and whatnot, and then invented a couple of new categories, legal categories.
One was the unlawful combatant, where basically they declared civilians can be targeted and can be held for military detention, and I say civilians because it's so broad that it can include civilians who just may be saying hostile speech toward the U.S., for example.
Bush sort of declared this when he said, you're either with us or you're the terrorists.
And that's a typical authoritarian declaration of any country, whether it's Nazi Germany, Pinochet's Chile.
They define people who are loyal to the state as those who are thoroughly supportive, and anyone who's less than thoroughly supportive is traitors, et cetera.
And we've begun, we did that during the Civil War, I've talked about this elsewhere, but we took this and expanded it to the entire world.
So we said that even people who may never have been in Afghanistan still became unlawful combatants and were thrown into Guantanamo.
I won't cite the various names to you, but it had a lot of implications.
But the other one I started thinking of and talk about now, listening to your conversation, is Cheney also said, you know, the best defense is a strong offense.
And that turns what the West considers its greatest strategist upside down.
And that's what the postulate said, the strongest defense and strongest offense is the defense.
In other words, you don't go out looking for enemies, you protect yourselves, and that's going to provide you the greatest security.
Cheney threw that upside down, and we've been paying for it ever since.
And it's exactly what al-Qaeda relied upon.
Osama bin Laden said, and other al-Qaeda spokespeople said numerous times, that what they would do, and this is a classic of terrorism, is they would provide a provoking incident to the United States and entice the United States into the war on their battlefield, Afghanistan.
And we threw in an extra bonus with Iraq.
And we're still paying for that now in the cost of becoming ever and ever greater, as we can see with what's going on now in Iraq.
So I would say the greatest combat multiplier al-Qaeda has had for the last 13 years has been the Bush administration with Dick Cheney, and unfortunately now, with the Obama administration still deferring to those same people that constructed that ideology.
Yeah, it sure seems like it, well, especially when you talk about the headlines this week or our previous interview with Doug Bandow about the situation going on in Iraq and in the Middle East.
But as far as with us or against us, is that just rhetoric from a speech, or that went into the Addington memos here?
What exactly does that mean?
Well, that's entirely the underlying principle of unitary executive theory.
You know, as Cheney had been pushing, as he said, ever since the minority report on Iran contra that was written probably by Addington, which is where they first met.
So they've been pushing, promoting this dictatorial ideology going back to the 1980s.
And finally, and this is what I pointed out, we're all Cheneyites now, you know, they first brought it into play with the collapse of the Soviet Union in 1991 with their declaration in a draft defense planning guidance paper saying that basically the rest of the world is now subject to our military domination.
That paper had to be withdrawn because it was leaked, and other nations or allies objected so much that they withdrew it, but basically still put it into practice, and unfortunately so did the Clinton administration, but not to the same degree that was done with 9-11 with Cheney then in the vice presidency.
But it goes with unitary executive theory.
Cheney believes that in the United States, the commander-in-chief is the absolute ruler, the president.
And that theory holds, too, when you expand it globally.
You know, the United States is the dominant military power, and everyone else owes its subjugation, you know, is subjugated by that, which is consistent.
You know, it's a tremendous hubris, which Chalmers Johnson, as you've just been discussing, has written about in numerous ways.
And we're still living with that, this whole idea of American exceptionalism.
We're trying to hold ourselves up as a nation above all others, dictating to the world how they will operate their system, even with all the evidence that we don't know what we're doing.
I was just thinking as you were talking of the idea of the knowledge problem that, among others, Hayek had written of, mainly applying it to economics.
But it applies even more to international relations, trying to manage the world, the globe, and put it all in the order that we want it to be in.
And of course, the result is, we're seeing, is blowback.
All right.
Now, when you talk about the powers of the presidency there in the Cheney-Addington view, this is what, and I don't know exactly what this means.
I got a junior college education here, Todd, but they call it, I know what inherent means, but they say it's the plenary powers of the president.
I don't know exactly what that means, but I think it means that it doesn't matter if we can find these words in Article 2 or not.
We just say that they're there, and you can't stop us.
However, then, but what about the Hamdan and Bomediene decisions, and there was one more too, Rasul Hamdan and Bomediene, where the Supreme Court said, no, actually, there is no magic in the Constitution.
The powers that you have are delegated right there in Article 2, like it says, not between the lines, and so, no, you can't do these things.
You're subject to the law.
Doesn't that count, or only in those narrow circumstances, or what?
Only in those very narrow circumstances where they constrained the government a little bit as to giving habeas corpus rights to Guantanamo detainees.
But it still gets up the D.C. Circuit, where they've said, you know, we don't care.
They may have that right, but that doesn't mean we're going to grant them the right.
They can bring it to our court, but we're not going to grant habeas corpus.
But going back, in Article 2, there's a short provision that the president is a commander in chief of the armed forces.
I don't have the exact language in front of me, but that's all- This is when called into the actual service of the United States.
Exactly.
But Cheney, Addington, they've expanded that into mean, exactly as you say, plenary or inherent powers of the president, and they argue, and unfortunately, there's a couple of cases that, one in particular, Curtis Wright, from the 1930s, where Justice Sutherland, relying upon his own idiosyncratic view of presidential powers, and it goes back to when our revolution, when the king had those powers, absolute powers, and according to Sutherland, he sort of threw those powers, I'm not saying this well, but over the Continental Congress and whatnot, into the hands of the presidency, if you can imagine it analogous to a football pass.
It's very idiosyncratic and weird, actually, and was only thrown into that Curtis Wright case as dicta, meaning nothing matters, but that's been grabbed onto by our militarists, and particularly by Addington and John Yoo and Cheney, to say, these are the inherent powers, so they'll cite to Curtis Wright, when in fact, Curtis Wright meant nothing of the sort, except in Sutherland's delusions, but unfortunately, so much of law comes from previous decisions, where somebody later picks something out, and it becomes accepted, or at least in the common imagination.
So it is not constitutionally correct, and we need to resist that, we need to restore the proper understanding of the Constitution, and what that means as far as war powers, because it's costing this nation its security.
We delegated all these powers, in effect, into the executive branch, and I'm writing an article on the Vietnam War right now, the worst example of strategy that we've seen in the last 50 years is Westmoreland, who was driving the United States into the ground economically and killing all the American soldiers under his command, because of his own conceit that he knew something that he didn't, and we still had the right to free speech and we could criticize the army and whatnot, and we had an anti-war movement that grew and got us to get out of there before we faced utter collapse like the Soviet Union later did in Afghanistan.
That was the genius of the framers of the Constitution, they recognized that no one person could be or have that much knowledge to run a war or to exercise that sort of power, so they put in the separation of powers, but now Congress has abdicated its role in this, or has just been too deferential to the president if it's their person in power, and we've no longer got that overall discussion taking place that can detect these errors, and we give this undue deference to the military now, who take a very narrow view of strategy, more in the line of tactics, and so we're faced with what we're doing now, we've got a mess in the Mideast, all of our own making, and it's going to have huge consequences, the Iraq war itself continues to have huge consequences, and it's anti-war.com and you Scott have done tremendous yeoman's work in correcting all these errors, but other people need to get more involved, and we need to quit deferring to the military, the military is not, Westmoreland is exhibit A, you can be an idiot and still make general.
Well yeah, and you know their whole thing that anytime anything goes wrong it's either Ron's fault or it's your fault for knowing better in the first place and telling them so and that kind of thing, it doesn't seem like a big emergency now, but I guess what you're saying is that the legal framework is there to apply with us or against us to us, that no really, Americans, you wouldn't have to be all locky, outright, you know doing YouTubes telling American Muslims to join Al Qaeda, you could just say, no Glenn Reynolds is an idiot and we shouldn't listen to him or something like that, and then that could get you locked in Guantanamo for knowing better than the war party and saying so because then you get the blame for their failures.
Those are the precedents that the government is now using in Guantanamo, what they now call because they've lost on the issue of material support for terrorism being an international war crime, so what they've fallen back upon is the Civil War and when the US was under martial law and at that time because of the need for a draft and whatnot, you know the North in the Union's eyes, the South is doing its own ways of oppressing its people and whatnot, of course slavery is even more oppressive, but in the North they declared martial law in 1862, I wrote another article on Lever's Code which was published on antiwar.com showing this, with that declaration of martial law, Lever's Code was written in part to be a martial law regulation which was used up until the 1900s in the Philippines as exactly that, where it declared that disloyalty could be anything such as speech tending to embarrass the government or embarrass the army, and in fact the government cited a case, I think inadvertently, but in Guantanamo, upholding, arguing that the military commissions are part of our tradition, which is a lie, but cited a case of Edmund Ellis who was a newspaper publisher in Missouri in 1861 or 1862 who was put into military detention by, you know, under martial law, and so that's a precedent out there as well as many others, and that's the precedence that they're now invoking to justify Guantanamo, and it's easily imaginable, you know, you don't have to speculate that if section 1021 providing for law of war detention for Americans ever gets exercised, you know, against an American, they would go back to those law of war precedents that the military commission's prosecutors are using in Guantanamo.
So, you know, this is what the Hedges v.
Obama lawsuit was about, in which Hedges lost, and the government even said in court, you know, government prosecutors said that, okay, we'll concede that what Hedges has written so far does not subject him to military detention, but, you know, if these facts change ever so slightly, it may.
So they even conceded that exercising free speech could provide, you know, the reason for military detention of an American citizen, and this should be extremely alarming because that's exactly what people like Westmoreland and Petraeus and all these others, there's a whole bunch of officers came out of Vietnam saying, next war, we got to suppress speech, we got to have military detention for dissidents, and they've gotten all that in place now.
Yeah, and it's that or accountability, right?
Yeah, exactly.
Oh, man.
All right.
So now, there's a debate that's going to happen here, or vote that's going to happen, at least in the House of Representatives this Thursday, Todd, about repealing the authorization to use military force.
And I guess as far as I know, and I shouldn't be too discouraging about this, because I really don't know, but I assume it's, you know, more of a symbolic thing, Representative Barbaralee is behind it.
Obviously, the Republicans control the House and, and I don't know if there are very many good ones at all on this, but they want to repeal the authorization to use military force.
So I guess the first question is, do you think that there's a chance that they actually could repeal the AUMF from after September 11?
And then I wonder whether it would make any difference at this point, if Obama agrees with Cheney that he can do whatever he wants anyway.
Well, first, I'm pessimistic like you are, I think it probably is symbolic.
I mean, this should cause alarm right there.
I mean, here we have Buck McKeon, who's chair of the House Armed Services Committee, I believe.
And he's someone of the mind who cannot ever give enough money over to the military industrial complex.
So of course, they don't want the AUMF to be repealed.
But second, it absolutely should be repealed.
It wouldn't totally constrain the president, but it would serve some purpose in getting the argument away a little bit that the president has all these unlimited powers.
Although they make the inherent powers argument, they like having the support of the AUMF to bolster that argument.
And again, the question gets back to why have we given so much authority and deference to one person, you know, the so-called commander in chief, to take our country into any globally conflict.
Now, I'm not a pacifist, I won't say, not having served in the military, I can't say that.
But there's never been a prohibition on some limited use of the military for a genuine emergency.
And we've seen that over the last 40 years.
It was, you know, ever since Vietnam, there's a number of different things like the Mayaguez incident, you know, a couple of other things.
And it was called sporadic attacks.
And it wasn't, didn't rise to the level of war.
What Cheney had to do, though, was to elevate these responses, elevate this sporadic attack by Al Qaeda into a state of war so that then he could bring this unitary executive argument into the public.
And again, you'll go back and read the Office of Legal Counsel memos written by John Yoo, and every single one always was invoking inherent powers by the president to do whatever, torture, military detention, indefinite detention, etc.
So at least it would be a start to repeal it.
And again, it does not make us defenseless for genuine emergencies.
But it would do it go a long ways or go at least partially and put more of a burden on the executive, you know, the so called commander in chief to make an argument for their so called presidential or commander in chief powers, war powers.
All right, well, now, so what if the president was called into the actual service of the United States as the Constitution, I guess, is implying there by really invoking the powers in Section 8, Clause 11 there to declare war?
What if instead of an authorization to use military force, they had just gone ahead and declared war?
Wouldn't things be or would things be better or worse?
No, I mean, and you know, it's, again, with the Republicans, we know, you know, if you go back and read the transcripts of the, you know, the AUMF was actually expanded into with the 2012 National Defense Authorization Act, before we're sort of limited to those who were responsible for the 9-11 attack.
The 2012 NDAA, it expanded the AUMF to include associated forces, which again, that's really where this gets so dangerous.
But if you listen to the or you read the transcript of people like Graham and Lieberman and McCain and Ayotte, you know, they're all going on about the battlefield of the United States.
In other words, we can do whatever we can do, whatever we can do on a battlefield in Afghanistan, we can do in the United States as well.
And that was their argument, which should send chills up our spines.
So again, that...
But now in the declaration of war, doesn't that mean, yeah, your powers kick in, Mr. President, go right ahead.
No law binds your authority anymore.
The law falls silent when a war is declared outright, no?
That's what Cheney would like to have believed.
But no, the law is not supposed to fall silent.
It does when you're such a rich nation that you can bribe other nations to sort of go along with it, like we've done for the last 13 years.
But it is correct, though, that it does go silent in a way.
And that's what people need to realize.
When we talk about the law of war, I think, and especially academic lawyers sort of have this idea that is something codified somewhere out there.
And it really, you know, constrains governments and militaries.
But in fact, it doesn't because there's a huge escape clause, you could call it military necessity.
And, you know, we don't allow somebody like generals in Milosevic's army to use that as a defense, but we use it ourselves all the time.
You know, kill civilians in Fallujah, well, military necessity.
Same with collateral damage in Afghanistan, military necessity.
So the problem is, is, yeah, a declaration of war, but we're acting as if we do have a declaration of war.
So in that way, there's really no distinction between an AUMF and a declaration of war.
But yeah, there are supposed to be constraints, but we're not abiding by them.
I won't go on too long, but I think drone warfare itself.
If you look at who the casualties are, we always say, well, we're only killing combatants.
But when you look and you see that they're actually civilians, then it's just a question, well, okay, the military defines them as combatants.
Again, going back to this unlawful combatant or, you know, civilians, but in reality, they're not.
And but we allow the military to make that claim.
And it's, again, that's, again, it's al-Qaeda's greatest strategic strength, combat multiplier.
All right, so now, but, okay, well, and we're gonna get back to that here in a second here.
But when Obama decided, I think they said in the New York Times, it was a no-brainer that, yeah, let's kill al-Awlaki.
As soon as you get a shot at him, kill him.
An American-born, American citizen, a US person out there in Yemen.
They kind of make it seem like, oh, we couldn't have possibly arrested him.
But they don't, I don't think ever actually claim that because it's too easily disputed.
But they sort of let that be the implication that he was out in some lawless Wild West territory where it might as well have been an actual kind of battlefield.
But anyway, this guy's an American citizen.
So the question is, am I correct?
Do I understand you right?
What you're saying is, well, no, well, two things.
First of all, how far does that precedent go?
Well, I guess that's the second part.
The first part is, was Obama saying, okay, I'm just gonna break the law and kill this guy because I feel like it and I know the Republicans aren't going to impeach me for it because they like killing Americans even more than I do, so it'll be fine.
Or did he have some purported theory that said this really wasn't illegal?
I guess they're fighting over this memo, but I just wonder what you think is in there or what, you know?
Well, I recently wrote an article criticizing the nomination and appointment of David Barron to the federal court, who is allegedly, I don't think it's disputed, one of the co-authors of the drone memo.
And again, that's in totally all these inherent powers arguments, just like would have come from John Yoo.
But again, going to a Lockheed, you have to wonder, just like with much of what George W. Bush did, are they doing this just to establish a precedent so they can come back later and refer to that precedent for what they want to do next as a strategic thing?
They always talk about a Lockheed being an operational leader, but that's meaningless.
What is an operational leader?
PSYOPs, an army.
Anybody involved in PSYOPs would be an operational leader, you could say.
So it could be a propagandist or it could just be a commentator.
We don't really know.
Obviously, he was hostile toward the US policies in the Mideast.
And I'm not that acquainted with what else he said, and I'm not defending those things he said, but I'm just saying it can be taken so easily, much further, to justify reaching people like Chris Hedges.
And I'm not saying Chris Hedges would ever be targeted with a drone.
I won't use him because of the law suit.
But again, how far do they take this?
And what is out of reach?
When is capture impossible?
So it's...
Right.
Well, and previously, the Supreme Court has defined what's protected speech and what's not.
And it's not that a religious person or a religious leader actually has more protected speech necessarily, but they have their own kind of separate protections in law in precedent.
And so he should have, would have been the receiver of both kinds of protections there for his free speech.
And the courts already said that, right, it was a Ku Klux Klansman said, we're going to get some revengeance upon you and have an armed revolution.
And the court ruled in Brandenburg versus Ohio that that's okay.
What he can't do is say, come on, y'all, let's get them as, you know, in order to lead directly to an actual crime.
But to say there ought to be an armed revolution in America is perfectly protected speech.
It's the Declaration of Independence, for Christ's sake.
Everybody knows that.
And that's all he's accused of doing, really.
I mean, they imply, although they've never even pretended to display evidence, that he was part of the conspiracy to do the package plot and the underpants plot.
But really what he did was give an interview to Al Qaeda's magazine and put out YouTubes in English saying that, you know, young American Muslims ought to join up the fight, which, you know, damn him for that.
But if that's some kind of treason, and I don't think it is, but if it is, he ought to be given a trial for treason, which is a crime.
It's a felony on the books since the very beginning.
It's not something to just murder him for.
Well, that's, you know, you raise a great point.
But under the law of war, and here's a danger, and people need to realize this.
Again, this is not a parallel constitution.
Under the law of war, there is no protected speech.
It's not portrayed as speech.
You know, you don't you don't charge somebody with saying this or that.
Instead, you charge them with the hostile act or belligerent act.
And those are the terms used even in the Fourth Geneva Convention that regards civilians, providing that a belligerent can put people guilty of hostile or belligerent acts in military detention or target them.
And, you know, that's, you know, in Israel under military government, a young teenager writing graffiti on a wall gets captured by the Israeli military and put into military detention because of their hostile act of just writing on the wall.
So imagine how much more hostile that is if you write a column critical or, or you, you know, go on radio or something, criticizing.
So again, when they can when they can successfully claim that we're under in war, under the AUMF or under declaration war, they can then make the claim that we're at war.
Therefore, the speech constitutes hostile or belligerent acts such as with a lockie.
And I'm not sure they put that in those terms, they call them an operational leader, but that means nothing.
And then again, you all of a sudden, you have total suppression of free speech.
And that's the stakes involved here.
You know, and people need to realize that if we allow these militarists to successfully claim that we're at war and the law war therefore applies, we've given up our constitutional rights under the Bill of Rights.
Yeah.
And now I'm sorry, because I keep interrupting you when you make this great point, which is that where the Bush administration and the Obama team since then have acted in a way like they're getting away with blue bloody murder and taking advantage of the 9-11 attacks and all that's come after, which is of course true as the Halliburton and Lockheed dividend check recipients, they'll tell you.
But on the other hand, like you're saying, that's exactly what they were trying to get us to do was overreact.
That's what terrorism is about.
And as you said, Iraq is just the bonus.
But boy, look at the way it's played out.
We're already years and years after that.
So, you know, the start of it.
And so now look at the way it's all of his goal straight out of Michael Schur's warnings from a decade ago that he's trying to get us to, you know, radicalize a generation to bankrupt our empire, turn the people of the Middle East against their American, you know, puppet dictators and wage their local jihads, but bankrupt us and force us out.
And at the same time, create what Osama bin Laden called the choking life for the American people at home, that the security clamp down here would be so drastic that the American people would resent it so bad that we would tell our government to just knock it off and quit being an empire.
If a police state is the price, the so called security state is the price of having an empire, then we just don't want one.
And this is the worst, the very worst part of that what you're describing here is going back to King George, the third law, where really, the temporary, you know, somewhat elected emperor can do whatever he wants with you is the very worst essence of that.
And it doesn't seem like there's any unified real, you know, front, for example, among the legal profession or something to just do everything they can to try to roll this back, you know, where all 50 state bar associations, etc, etc, etc, on just putting a screeching halt to this before it's too late.
Now, the bar associations, unfortunately, have gone along with this stuff, they sponsor events on national security law, national security law is nothing other than martial law principles being applied to us now.
No, but make no mistake about that.
So what they're basically is implies, you know, suggesting going along with is creating a system of martial law principles, people talk about national security courts, all they are would be a variation of a martial law court.
And one other thing, the one thing that Osama bin Laden may have misjudged about the American people was the idea that we would rebel against this authoritarianism.
Unfortunately, it hasn't happened enough yet.
So he's continuing to get, you know, this, this plan of his is continuing to pay dividends to him.
As we just keep going deeper and deeper into this.
I was talking with somebody from Pakistan the other day, who pointed out that every time a drone kills a bunch of people, they have, you know, they have the funeral afterward.
And there's usually somebody or always somebody that is attending from the Taliban or some other radical group, extremist group.
And all they have to do is point to the bodies and say, hey, you're ready to fight now.
And they are, you know, it's the greatest combat multiplier that Al Qaeda has, as I say.
And until we realize this and call a halt to what our military is doing, the CIA is doing in the NSA and in the executive branch of our government, we're going to dig ourselves deeper and deeper into this strategic hole.
And, you know, the I don't know what the consequences are involved, but certainly not where we will ever restore our well-being that we once had 14 years ago.
Thank you, Todd, for your time on the show tonight.
I sure appreciate it.
Thank you.
All right, y'all.
That is Major Todd E. Pierce, retired of the U.S. Army, former judge, advocate general, defense attorney down there at Guantanamo Bay, and now an activist for restoring something like the rule of law in America, as you can tell, and a great writer.
You can find some of what he writes, at least here at ConsortiumNews.com, Robert Perry's site, ConsortiumNews.com, including this one, We're All Cheneyites Now.