02/25/15 – Alfred McCoy – The Scott Horton Show

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Okay, you guys, welcome back to the show.
It's the Scott Horton Show here on the Liberty Radio Network.
Next up is the great Alfred W. McCoy, professor of history at the University of Wisconsin at Madison.
He writes regularly for tomdispatch.com and is the author of quite a few books, including The Politics of Heroin, A Question of Torture, and most recently, I believe it is Torture and Impunity, The U.S. Doctrine of Coercive Interrogations.
His latest for Tom Dispatch, which is running today at antiwar.com under Tom's archive here, is called The Real American Exceptionalism, From Torture to Drone Assassination, How Washington Gave Itself a Global Get Out of Jail Free Card.
Welcome back to the show, Alfred.
How are you, sir?
Good, Scott.
Thanks for having me on.
Very happy to have you back on the show.
A very important article that you've written here, like pretty much everything I've ever read of yours in the past.
You start out with a thinker, a conservative thinker named Carl Schmitt.
Who's Carl Schmitt?
Carl Schmitt was a very influential thinker in Germany in the 1930s.
He was the chief judicial officer under the Nazi government, and he influenced his protégés, most importantly Leo Strauss, who trained a number of the Bush neoconservatives at the University of Chicago.
Strauss' students included, for example, Paul Wolfowitz, who was a key architect of the U.S. invasion of Iraq, and he's now an advisor to Jeb Bush on foreign policy.
Carl Schmitt said very famously, the sovereign is he who decides the exceptions.
And that has become, if you will, the sort of philosophical underpinning of the U.S. world order since the end of the Cold War.
Really, dating back to the 1950s with our great victory in World War II, the United States became the world sovereign.
And more than any other single power, we breathed into life the idea of international community.
We wrote many of the laws.
We created many of the institutions, the United Nations, the World Health Organization, the World Trade Organization, the World Bank.
These are all U.S.-inspired, U.S.-endorsed institutions.
At the same time, we began breaking the rules that we have been writing.
Because as world sovereign, we're the power, the sole power, who can decide the exceptions to these important international rules and laws.
And now, so it seems really to go against our very most, well, my very most basic kind of childhood conceptions of America, the way it was explained to me.
Ronald Reagan is just a citizen.
He's not anything special other than he temporarily is sitting in the job of chief executive of the departments of the government, that's all.
But he doesn't have really any more rights or responsibilities than anyone else.
And he only has authority under law.
And of course, that's pretty much mythology.
But that's what we're trying to live up to here in America, I think.
Or maybe we were once upon a time.
But I can see how as a foreign policy, as our foreign policy is the opposite of that, we kind of lose that conception more and more here at home as well.
Well, I mean, it's still true.
The President of the United States is the head of government.
He or she is governed by the laws of the land, the laws that spring, of course, from our Constitution.
Of course, there's one problem.
The United States has been building in the aftermath of World War II, and particularly expanding it since 9-11, a vast secret state.
This is something that was intelligence, this whole vast covert domain of U.S. governance, particularly abroad, is something that is completely beyond the Constitution.
Let me repeat an axiom that I put forward in this article, that there is a fundamental contradiction between state secrecy and the rule of law.
And as one grows, the other inevitably shrinks.
And in the aftermath of World War II, we created the Central Intelligence Agency.
You got to understand that, you know, for the first really 150 years of the American Republic, we didn't have a state security apparatus.
When World War I started, when General Pershing led 2 million Americans to fight in France, we had the only army on either side of the battle lines in World War I that didn't have an intelligence service.
And this aversion to secrecy and to intelligence is something that's very deeply ingrained in the United States.
During World War I, we created an intelligence service.
But in the 1920s, Republican conservatives cut it way back on the grounds that this was a threat to U.S. civil liberties and a violation of the Constitution.
And indeed, that instinct to cut and curtail secrecy has remained strongly bipartisan.
I mean, after World War II, the Democratic president, Harry Truman, killed the Office of Strategic Services.
And then, of course, later on, he created the CIA.
But nonetheless, he killed it.
After the Vietnam War, President Jimmy Carter fired 800 CIA covert operatives to curtail that dimension of CIA activities.
And so, you know, since 9-11, this dimension of the U.S. state has grown enormously.
And so has the violation of the rule of law, particularly in the international arena.
Well, and, you know, I wonder whether the people in D.C.
I mean, Paul Wolfowitz, I'm sure, understands.
Well, I don't know what he understands, honestly.
But I wonder if the irony is completely lost on them, that it's perfectly OK that the rogue state, as long as we're enforcing what we claim is the world law on everybody else, which that's always the excuse for the war in Libya, the war in Iraq, the war in Kosovo, et cetera, it's always to enforce the will of the United Nations and protect the poor people from their own governments, et cetera, like that.
Yeah, I think one of the most visible manifestations of the American people's most visible manifestations of this contradiction between our commitment to the rule of law at home and international law abroad and this idea that the U.S. sovereign, particularly in the world arena, has the right to exceptions to that law, came over the torture debate last.
I mean, let me put it this way.
Let me wind back.
At the start of the Cold War, back in the 1940s, the U.S. was a very strong advocate for this idea that torture was an abomination.
Indeed, one of the strongest principles of international law and human rights law for the last 300 years has been a campaign to abolish torture as a prerogative of state power.
And in 1948, the United States had a predominant role in the writing of the U.N.
Universal Declaration of Human Rights, which specifically bans torture.
A year later, we were the prime mover in the enactment of the Geneva Conventions for Humane Treatment in War, and that has a specific prohibition against torture.
Simultaneously and secretly, however, the CIA began developing secret new techniques for psychological torture to be used against the Soviet Union in the Cold War.
So right from the outset, there was this in-built contradiction.
And that campaign for the international rule of law and the ban of torture continued in 1984 in a truly extraordinary act.
The United Nations General Assembly, representing 159 member states, voted unanimously to approve the U.N.
Convention against Torture.
And we ratified that convention a decade later in 1994.
The Cold War was over.
The CIA had given up its torture techniques, had expunged it from its manuals and all the rest.
Yet, even as we signed the U.N.
Convention against Torture, which contains under Article 3 a ban on extraordinary rendition, a ban on sending somebody from one jurisdiction to another jurisdiction where they're going to be tortured.
And right away, President Clinton, a year after he signed the U.N.
Convention against Torture, authorized the CIA to engage in extraordinary rendition.
We began snatching people in the Balkans and sending them to Egypt where they were subject to horrible torture.
CIA Director Tenet later testified that before 9-11, we engaged in at least 70 extraordinary renditions.
Every single one of those is banned under Article 3 of the U.N.
Convention against Torture, which we signed.
And since 9-11, the exceptions have gotten thicker and deeper and more common.
All right.
And more on those lines when we get back with Alfred McCoy, author of Torture and Impunity, the U.S. Doctrine of Coercive Interrogations.
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All right, you guys, welcome back to the show.
I'm Scott Horton.
I'm talking with Alfred McCoy, professor at the University of Wisconsin at Madison.
And the book I read, well, I read Politics of Heroin a long time ago, but I read Question of Torture.
I haven't read the most recent one.
But boy, is that book a nightmare, all this stuff in there.
I'll tell you.
OK, so we're talking about the real American exceptionalism.
It's running today at Antiwar.com under Tom Englehardt's name here.
And we're talking about how the law doesn't apply to America because America is the law.
And so but that kind of gets down to the heart of this thing about whether Carl Schmitt is really wrong in saying that, hey, the most powerful person, in this case, America, with the biggest military and by many measures still the biggest economy, we get to call the shots.
And the world is somewhat lucky that we have a public relations scheme that promotes things like bans on torture in other countries, even when they don't apply to us.
But isn't it really the case that world law means nothing without an enforcer and and that and that, you know, probably enforcement can't be accomplished without breaking all those laws, like, for example, starting wars, which is, you know, the first thing all this post-World War II stuff bans, right?
Yeah, but one of the things I think that's really striking about the age we're living in is the nature of warfare is changing.
We're moving away from the old model of heavy metal warfare of, you know, aircraft carriers and heavy cruisers and tanks and all the rest.
And under President Obama, there has been a systematic shift of U.S. force projection from the conventional arena of, let's say, air, land and sea to aerospace and cyberspace.
And this represents a real challenge for the rule of law, because what's what's happened really in the past hundred years since the United States has helped build the international rule of law with international courts is that there's been a, if you will, military technology moves in seven-league boots, leaping ahead by great bounds.
And the law kind of follows along in smaller footsteps, trying to catch up.
And what we've got now is that the U.S. force projection, its warfighting capacity, is moving into two domains that are still unregulated, aerospace and cyberspace.
And we're working very hard to keep them unregulated.
Now, one of the key facets of the international community the United States built after World War II, enshrined in the United Nations, is this idea of national sovereignty, that every nation state has inviolable control over the people and the affairs inside its own international boundaries.
OK, so the question then is, how high is sovereignty?
How high does your sovereignty extend?
Does it go up a mile?
Does it go up 10 miles?
We know under the law C that it now goes out 200 miles.
But how high is it?
And the fact is, there's no rule.
There has been a successive failure of international law to define the upward limits of sovereignty at the Paris Air Convention in 1910, the Hague Convention on the Laws of Air Warfare in 1923, the failure of Protocol One of the Geneva Convention in 1977.
In other words, there's been a successive failure by the international community to define the rules of air warfare and the height of sovereignty.
So we can fly a drone, in theory, over anybody's boundary.
We can fly a satellite over anybody's airspace, and there's no restriction.
So that's one dimension of U.S. exercise of global power.
And indeed, we've used drones to engage in, let's say, just Pakistan, about 3,900 extrajudicial executions with considerable collateral damage.
But wait, so what you're saying is, you're not saying that no state has the right to attempt to fight our drones trespassing, but you're just saying there's no law that makes it an international crime to use air power to kill people, or at least to fly over other people's countries as long as they can't shoot it down.
In other words, satellites fly over international boundaries all the time, right?
Sure.
And nobody regards that as a violation, but they're only 250 miles up.
So there's no difference between that and a Reaper drone, in terms of the law?
In terms of the law, there is no definition whatsoever.
In other words, you know, if you ask some lawyer in the Pentagon how high is sovereignty, a Pakistani lawyer might respond, as high as you can enforce it, and no higher.
So in other words, we have sovereignty over our airspace, because we've got air defenses, right?
But that's not actually enshrined in law.
That's just the exercise of power.
So there's no limit on these drones, okay?
Well, that was fine for us as the world power, and we're the only people that have drones.
But just this week, President Obama authorized the exports of drones to allies.
Of course, the end-use control over that is vague.
I mean, once you give people a weapon, they can use it as they fit.
The Chinese are starting to manufacture drones, and they're also just about to have the one key technological item that you need to transform a model airplane into a drone.
Satellites.
You've got to have over-the-horizon communication capability.
That only comes from satellites.
From 1965 to the present, the United States has had the only global system of telecommunication satellites.
Well, in 2020, the Chinese will have finished the launch of 35 satellites.
They'll have the world's second.
And that means they'll have the world's second capacity for global drone use, just like ours.
We've got 60 secret bases ringing the Eurasian landmass, stretching all the way from basically Sicily to Guam.
And we have the capacity right now basically to strike with a drone almost anywhere in Europe, Asia, and much of Africa with our drones.
We're the only power that has that.
Well, that's about to change.
Well, now, but China aside for the moment, killing people with drones, say, in Yemen or in Pakistan, that's still a war crime, right?
Or I guess in Pakistan, we have permission from our sock puppet governments there.
Is that it?
Yeah, basically, they don't object.
But there is a UN rapporteur for judicial executions, and that rapporteur has raised serious doubts about the legality of what the United States is doing.
We've even, without adversary legal proceeding, we've killed four American citizens with drone strikes.
Now, these are people that have been basically sentenced to death.
And all we have is an intelligence report delivered to President Obama, who on Kill Tuesday looks over the file and approves the hits.
That's not an adversary legal proceeding, right?
There's been no counsel.
There's been no contestation of the intelligence.
Initially, the White House insisted, the Obama White House insisted that everybody killed by a drone was the object of the attack.
But now we know that's not true.
The Bureau for Investigative Journalism in London, which is carefully monitoring these drone strikes in Pakistan, has established that under President Obama, there have been 3,800 deaths.
Of those deaths, as many as 900 have been civilians, and as many as 200 have been children.
So clearly there's collateral damage.
People are dying in these strikes that are not, you know, the guilty parties.
Okay, so this is a problem.
These are extrajudicial killings, and that is a violation of both U.S. law and international law.
And then the point being, of course, not that the breaking of the law is the worst part.
It's the murder that's the worst part.
But what's important is that law can't stop it, really.
That's what you're getting at here.
There is no instrument for it.
The problem is that the international rule of law, even though there is an international court of justice, and indeed there's now an international criminal court, both of which that sit at The Hague and The Netherlands, ultimately the strongest sanction is a moral sanction.
That's why the U.S. military, particularly the Judge Advocate Generals of all the four U.S. military services, were adamantly opposed to the U.S. determination after 9-11 that we had the right to torture, despite the fact that we'd signed the U.N.
Convention Against Torture.
And this was a violation of the U.S. Code of Military Justice.
But more importantly, all of these senior serving military officers were concerned that once we do it to somebody else's captives, they'll do it to our captives, right?
And so there's this realization that the ultimate sanction in the rule of law is a moral sanction, self-enforcement, self-restraint.
And as long as we're the world's absolutely unchallenged, preeminent power, the system can operate.
We can operate in this contradiction between having laws and being the world's law enforcer and also being the world's law breaker.
I mean, that can kind of continue.
But once our power begins to wane, and our power is waning a bit, there's no question about it, and we can be challenged, that means that then other people can start breaking the laws.
We've, in effect, ended the moral sanction against breaking these laws.
And that's troubling.
That's deeply troubling.
All right.
Well, thank you very much for your time on the show again today.
Thank you, Scott.
I sure appreciate it.
That's Alfred W. McCoy, professor of history at the University of Wisconsin at Madison.
And he's written for Tom Dispatch at TomDispatch.com, and this one is running at antiwar.com today.
The Real American Exceptionalism.
It's under the name Tom Englehart there.
You know how Tom does with his introductory essay and all that.
And his latest book is Torture and Impunity, the U.S.
Doctrine of Coercive Interrogation.
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