Everyone is entitled to his own opinion, but not to his own facts.
--Daniel Patrick Moynihan

April 17, 2019

The Scourge of Military Commissions

By David K. Shipler

                Of all the self-inflicted wounds by the United States since 9/11, the flawed military commissions set up to try suspected foreign terrorists rank high on the list. At Guantanamo, the commissions have been bogged down in a swamp of dubious ethical, legal, and procedural practices. Their constitutionality has been challenged, their partial secrecy denounced.
Some of their military judges have demonstrated bias, and one was reprimanded this week by the powerful Court of Appeals for the D.C. Circuit, which vacated all his orders back to Nov. 19, 2015, the date he initiated a conflict of interest by applying to the Justice Department to be an immigration judge. All rulings on his orders by the Court of Military Commission Review were also set aside, wiping the slate almost clean of pretrial decisions in the case, now requiring re-argument on many of the issues. It was a telling illustration of the mess that’s been created.
Without the military commissions, it’s a good bet that the most prominent prisoners at Guantanamo would have been executed years ago, or at least be sitting on death row waiting for the needle. They would have been tried in civilian federal courts, which Republicans have blocked, although the courts are the jewel in the crown of the American judicial system. If juries had found them guilty, it’s hard to imagine anything but the death penalty. Instead, the alleged organizers of the 9/11 attacks and the 2000 bombing of the USS Cole in Yemen have been in U.S. custody for more than 15 years, at taxpayers’ expense, waiting for trial by military commissions that are so ill-conceived as to be vulnerable to obstruction by prosecutors and multiple motions by defense attorneys seeking to guard their clients’ rights.
Among five suspects in the 9/11 plot is the alleged mastermind, Khalid Sheikh Mohammed. This week’s appeals-court ruling involved Abd al Rahim Al-Nashiri, charged with orchestrating the Cole bombing. Both men were tortured by the CIA in “black sites” before being transferred to Guantanamo.
Al-Nashiri this week was granted a Writ of Mandamus, which he sought after his lawyers learned that the former judge in his case, Air Force Colonel Vance Spath, had been secretly promoting himself for a position with the Justice Department’s Executive Office for Immigration Review. He had even cited his role in the Al-Nashiri case as a credential, and had submitted one of his pretrial orders as a writing sample. (Immigration judges are employees of the Justice Department, not part of the independent judiciary. And while the military commissions are run by the Defense Department, the Justice Department is involved in rule-making and appeals; a Justice Department lawyer played a major role in the team prosecuting Al-Nashiri.)
The decision of the three-judge panel was unanimous. Written by Judge David Tatel, the opinion  stopped short of citing any evidence of actual bias in Spath’s orders—many of which were adverse to the defendant—but it noted that “jurists must avoid even the appearance of partiality. Judge Spath’s conduct falls squarely on the impermissible side of the line.” The opinion continued: “It is beyond question that judges may not adjudicate cases involving their prospective employers. The risk, of course, is that an unscrupulous judge may be tempted to use favorable judicial decisions to improve his employment prospects—to get an application noticed, to secure an interview, and ultimately to receive an offer.”
To a layman’s eye, some of Spath’s rulings seemed to fit that pattern. One instance came after defense attorneys were warned by their officer in charge, Marine Brig. Gen. John Baker, “that he had lost confidence in the confidentiality of Guantanamo’s meeting spaces,” according to Tatel’s opinion. But Spath adamantly denied that any cause for concern existed that privileged consultations between Al-Nashiri and his lawyers were being monitored. He denied the defense’s motion for discovery, even after lawyers found a hidden microphone, which the government claimed was inoperative.
When the three of Al-Nashiri’s lawyers, who were civilian employees of the Defense Department, concluded that professional ethics required them to withdraw from the case, General Baker granted their request. Spath ordered Baker to rescind his decision. Baker refused, so Spath ordered the general fined $1000 and confined to his quarters for 21 days.
Last September, after retiring from the Air Force, Spath took the oath as an immigration judge, where he is making life-changing decisions for immigrants. His successor on the case, Colonel Shelly Schools, then followed the same route, seeking and accepting an immigration judgeship. When the defense got wind of it, and the government confirmed it, she had to step down as well.
Military involvement in the terrorism cases began when President George W. Bush, ignoring the legislative branch, established tribunals to process Guantanamo detainees and others. For several years, he dodged and weaved in and out of a series of adverse Supreme Court rulings, finally enlisting a too-compliant Congress in 2005 and then in 2006 to establish military tribunals and commissions. Initially they could admit hearsay evidence, the fruits of illegal searches, and confessions coerced under torture.
Then the Military Commissions Act of 2009 cleaned things up a bit but still empowered the executive branch to try a vast array of cases, even inside the United States, involving not U.S. citizens but “alien unprivileged enemy belligerents.”  A president and his attorney general can choose whether to send such defendants to trial before civilian judges and citizen jurors in federal criminal courts, or before panels of military officers in commissions. This is an enormous grant of executive power to evade a court system whose procedures have been seasoned by generations of constitutional precedent. The absence of such extensive precedent for military commissions is one reason for the litigation that is delaying trials.
Under the law now in effect, appeals from the commissions can be heard by the appeals court in D.C., which can even second-guess a guilty verdict by reexamining the evidence. Statements by the accused or witnesses would be inadmissible if made under torture or “cruel, inhuman, or degrading treatment,” but less severe coercion might be allowed during capture or combat if a military judge finds the information “reliable and possessing sufficient probative value.” Because much of the torture remains classified, it is hard for defense lawyers to argue in detail how it was used to extract information that should be ruled inadmissible.
As in civilian courts, the prosecution must disclose exculpatory facts to the accused, who may summon witnesses and confront those against him, but hearsay may also be admitted under restricted conditions. As in civilian courts, complex procedures governing classified evidence seem, on paper, to protect the accused against conviction by secret information he cannot challenge. It remains to be seen how effective that protection will be in practice.
Some judges and some military lawyers who appear on both sides have shown impressive legal ethics and courage to work for justice within a system “flawed in both design and execution,” as General Baker, the Chief Defense Counsel, put it in a 2006 speech at Georgetown. “Put simply, the military commissions in their current state are a farce,” Baker said. “Instead of being a beacon for the rule of law, the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay.” The rest of his address is a point-by-point indictment of the system and its government practitioners.
No system should depend entirely on the goodness of its participants. Our history contains no guarantee that one or another citizen who rises to authority will wield the immense power of the state with wisdom, fairness, and humaneness. Fragmentation of power, as with a judiciary independent of the executive branch, is the most reliable restraint.
In his speech, General Baker quoted Justice Robert Jackson, whose opening argument as chief prosecutor at Nuremberg contained this admonition on trying our enemies: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”

April 10, 2019

Will Israel Slam the Door?

By David K. Shipler

                In the 52 years since Israel took control of the West Bank from Jordan during the Six-Day War, the prospect of attaining peace by granting some form of self-government to the area’s Palestinian Arabs has hovered over the conflict like an apparition of hope or dread, depending on your political view. Now, that approach to solving the conflict might be closed off by Israel’s tight election results, since Prime Minister Benjamin Netanyahu is positioned to form a right-wing coalition.
In the first two decades after the 1967 war, the notion of an independent Palestinian state was so anathema to most Israeli Jews that it was supported only on the far left, mainly by Communists in the tiny Hadash party. Even liberal Peace Now leaders, who opposed Jewish settlements that were being built in the West Bank, avoided advocating Palestinian statehood for fear that their movement would lose credibility in Israel’s mainstream.
Indeed, Israel’s 1978 Camp David accord with Egypt, which led to a peace treaty in 1979, stopped short of calling for a Palestinian state, providing instead for “autonomy,” which was ill-defined and never implemented. Once statehood gained traction in Israeli politics following the 1993 Oslo accords with the Palestine Liberation Organization, support among Israelis usually oscillated just above and below 50 percent, with occasional spikes during peaceful stretches.
That support itself carried so many caveats that it would have been impossible to convert into statehood without broad changes of attitude among both Israelis and Palestinians. Spates of terrorism by Palestinians knocked off some percentage points, as would be expected, but even in relatively calm periods, Israeli Jews expressed serious doubts about statehood defined as Palestinians might accept, and Palestinians had their own reservations about the compromises they would have to make.
A joint Israeli-Palestinian poll in December 2013, for example, found an abstract two-state solution supported by 63 percent of Israelis and 53 percent of Palestinians. But the numbers declined as details were specified. Israeli withdrawal from all but 3 percent of the West Bank—all Jewish settlements except those in several large blocks—was favored by only 44 percent of Israelis. A Palestine with no army and only a strong police and multinational force appealed to 60 percent of Israelis but just 28 percent of Palestinians. Dividing Jerusalem was accepted by merely 37 and 32 percent of Israelis and Palestinians respectively—each side wanted the city all for itself. And in December 2012, a refugee solution providing for compensation to Palestinian refugees, their right of return to the new Palestinian state, and an undefined number admitted to Israel, won only minority support on both sides—39 percent of Israelis and 49 percent of Palestinians.

March 7, 2019

Through the Minefield of Anti-Semitism

By David K. Shipler

                Israel is surrounded by a minefield that protects it from critics who step carelessly, such as the new congresswoman, Ilhan Omar. The explosives, planted by history, are the ancient anti-Semitic stereotypes that will blow up the argument of anyone who triggers them, no matter how cogent her position is otherwise. That is what Omar has experienced. She first detonated her case with the longstanding caricature of moneyed Jews buying undue influence, and then with the old calumny of Jews as disloyal to their own country. In among those lethal comments, her valid points and humane pleas were covered by debris.
You can’t truly appreciate the power of stereotypes without a sense of history. To understand the recent uproar and ugly resonance of the blackface worn years ago by Virginia’s Governor Ralph Northam and Attorney General Mark Herring, for example, you have to know about the demeaning minstrel shows of the past, which pictured blacks as stupid, lazy, and comically inept. To grasp the full implications of Omar’s statements, you have to recognize the nerves they touch in the collective memory of oppression.
             It’s not enough to condemn someone who stumbles around in this landscape. Omar needs the kind of guidance that has been provided in the past by the Anti-Defamation League, which has engaged and taught, not just blamed, those guilty of anti-Semitic statements. In 1981, for example, after Rev. Bailey Smith, president of the Southern Baptist Convention, declared, “God Almighty does not hear the prayer of a Jew,” the ADL invited him and a delegation on a nine-day visit to Israel. Officials who met him didn’t bring up the comment and portrayed him as well-meaning, probably unknowing. He confessed that he should not have singled out the Jews, when he meant that the way to God was only through Jesus Christ.
So one has to wonder whether Omar knew what she was saying, and whether she is educable. Born in Somalia, fleeing at age eight with her family to a refugee camp in Kenya, and finally making it to the United States, she has clearly absorbed—perhaps unconsciously—at least a couple of the most virulent images from which Jews have suffered through centuries.

March 3, 2019

How to Get Rid of Trump

By David K. Shipler

                “When you strike at a king, you must kill him.” So said Ralph Waldo Emerson, as recalled by Oliver Wendell Holmes, Jr. It is an admonition that ought to be placed as a screen saver on the computers of all the eager Democrats in the House of Representatives who are licking their chops at the prospect of impeaching President Trump. A king who survives an attempt on his throne can be wild with vengeance, especially when backed by zealous toadies and street fighters.
                  If the report by special counsel Robert Mueller turns out to be an anti-climax after nearly two years of hype, Republicans who have circled the wagons around Trump will probably remain in place. As long as they don’t see Trump as a political liability, he’s safe, for impeachment is a legal-political hybrid. Without a smoking gun linking him explicitly to Russian manipulation of the 2016 election, hardly any House Republicans would vote for articles of impeachment, and the Republican-led Senate would fall far short of the two-thirds needed for conviction. The Republican Party of 2019 is a very different animal from the Republican Party of 1974, when its leaders, Senator Barry Goldwater among them, told Richard Nixon to resign or be impeached and convicted.
 Therefore, two other scenarios for dumping Trump seem more conceivable:
                 1. A Democratic electoral sweep in 2020 decisive enough to force the Republican Party into a cowering fit of reform.
This is the preferable outcome. If Democrats take the White House and the Senate, and keep or increase their majority in the House, Republicans might regroup as a more centrist, responsibly conservative movement that conducts serious debates over serious issues. Instead of rightist radicalism that favors the destruction of government, a reborn Republican Party might try to govern on behalf of a broader array of Americans.

February 17, 2019

America Down the Rabbit Hole

By David K. Shipler

                The United States desperately needs a Lewis Carroll to depict the satirical farce of our Wonderland. We have fallen into an alternative universe that cannot be captured by any responsible news reporter scrupulous about facts or careful nonfiction author tethered to footnotes. Only an imaginative talent for the bizarre can give us our current equivalents of the Hatter of the Mad Tea Party, the disappearing Cheshire Cat, the tyrannical Queen of Hearts with her dictum, “Off with his head!” Not to mention the Jabberwocky’s “Twas brillig, and the slithy toves, did gyre and gimble in the wabe.” He could be wearing a MAGA hat. Oh, for a Lewis Carroll!
                The latest scene would be President Trump’s fictional southern border, a place of dystopian invasion by swarthy, half-bestial creatures pouring in with drugs and criminal intent, waved on by gleeful Democrats jumping up and down with joy unrestrained. But fear not! The Great Wall of Trump hermetically seals the dark evil from the pure white good, and all is calmly virtuous inside. And by the way, when the wall is not actually built, the Trumpists merely have to say that it is being constructed, and then pretend that it magically stands even where nobody can see it. And all who hear the Jabberwocky’s enticing poetry dream peacefully between their pure white sheets.
                  Exaggerated fantasies of fictitious threats are not unheard of in American history. Driven by fears of French subversion, the Alien and Sedition Acts under President John Adams criminalized criticism of the government and subjected foreigners to arrest and deportation without cause or due process. President Woodrow Wilson led a campaign of paranoia, portraying opponents of entry into World War I as disloyal and deserving “a firm hand of repression.” Under him, the 1917 Espionage Act facilitated the prosecution of 2,000 socialists, anarchists, other political dissidents and labor union leaders. The 1918 Sedition Act set criminal penalties for “any disloyal, profane, scurrilous, or abusive language about” the American form of government, the Constitution, the flag, the military, or its uniforms. Imaginary dangers from Japanese-Americans during World War II landed them in very real internment camps. And the McCarthy era of nonsensical anxiety about communist infiltration generated career-busting witch hunts.
                Against that background, Trump’s manipulation of his national-emergency power to move a few billion dollars around looks like a moderate test of the constitutional system’s checks and balances, but hardly the devastating wrecking ball that opponents have described. It is unwise, opportunistic, and contemptuous of the ingenious separation-of-powers mechanism that the Framers invented. If adopted as standard practice, it could also be used by future, liberal presidents to declare national emergencies in health care, climate change, and gun violence, as the few Republicans willing to stand up from their party’s supine position have warned.

February 5, 2019

Can a Racist Be Redeemed?

By David K. Shipler

                A significant question hovers over the furor surrounding Virginia Governor Ralph Northam’s evident racism at age 25: Does a racist act justify a life sentence, or can a person evolve? Are racist attitudes malleable or thoroughly embedded in character? Is bigotry curable or merely discoverable, as through an old statement, action, or photograph?
                This conundrum, which is larger than Northam, has been mostly absent from demands that he resign. But it’s central to mapping ways forward from America’s quagmire of bigotry. If individuals’ racial prejudices are impervious to change, how does society make progress? Or if prejudice can be reduced, how is that best accomplished? These are not new issues, but they take on urgency with a President Trump who reflects and enables biases against an array of ethnic, racial, and religious groups, from Mexicans to blacks to Muslims.
                Unfortunately, Northam has failed to lead the discussion where it should go. He has neither acknowledged his sin nor chronicled his redemption. He has forfeited a teaching opportunity that might have helped the public see how a person can confront and revise his prejudices—if that is indeed his case. It is worth wondering whether he might have salvaged his political career with candid introspection. Maybe not, but it would have served the greater good, for the journey from racism through reform is one needed by society as a whole.  
                Northam’s sin was the inflammatory picture he evidently chose for his own page in his 1984 medical school yearbook. It showed two men standing side by side, one in blackface, the other in the white robes of the Ku Klux Klan. Northam either was or was not one of the men, depending on which of his ambiguous statements you credit. In any case, he also admitted darkening his face with shoe polish on another occasion, to imitate Michael Jackson in a dance. That touched a nerve of racial history, when whites in blackface used to perform in minstrel shows that mocked African-Americans as dumb, lazy, fearful, and ridiculous.
                Relatively few whites are sufficiently attuned to the overtones of history, the undertones of stereotyping, and the innuendoes that trigger, for many African-Americans, the long echoes of hatred. If nothing else beneficial has happened during the Northam episode, the mainstream media have at least given a short course on the ugly practice of blackface. It still endures occasionally in Halloween costumes and “ghetto parties” on campuses, where administrators huff and puff and punish.
                How to remedy the scourge of bigotry often depends on how changeable people seem to be. Since widespread redemption appears doubtful, the society has erected a superstructure of inhibitions—both legal and cultural—designed to prevent prejudiced thoughts from being translated into behavior. Violating anti-discrimination laws carries legal penalties; violating cultural norms can mean losing a job, a promotion, a friendship, a reputation. The results are anything but consistent, as illustrated vividly by the contrasting reactions to Northam and Trump. Northam’s Democratic Party denounces him, and Trump’s Republicans look the other way.

January 31, 2019

The Wind Chill Factor

By David K. Shipler

                President Trump warmed the hearts of Americans today by declaring the wind chill factor “FAKE NEWS” concocted by “Democrat weathermen” who are part of the “deep state.”
                “Wrong!” he tweeted right before breakfast toward the end of his insomnia. “The weathermen seem to be extremely passive and naïve when it comes to temperature. Don’t they read their own thermometers? The thermometer says 10 below, and they say it feels like 40 below! Sad!”
                In case his point was lost, he added the obvious, somewhat gratuitously: “Perhaps meteorology (I got that from spellcheck) should go back to school!”
                Millions of his fervent supporters across the country felt immediately warmer. In Wisconsin, the 27,000 citizens who put him over the edge in 2016 went without coats and gloves. One told a TV reporter at WXYZ, “See? Trump tells it like it is.” Another, who left his MAGA hat home, slapped his arms around himself and jumped up and down, his breath in a freezing fog before him. He declared happily, “Trump keeps his promises!”   

January 27, 2019

Lessons From the Shutdown

By David K. Shipler

                It’s too bad that air controllers and TSA agents didn’t call in sick on day one of the shutdown. Maybe next time. They’d get the government reopened in about 90 minutes.
               That’s Lesson One. Here are some others:
·         Financial security is a mirage for huge numbers of fulltime employees, not only of the federal government but of private firms as well. Wages are too low and expenses too high to generate an adequate cushion of savings for families in the so-called middle class. People quickly ran out of cash for such basic needs as housing and food. As a former Coast Guard commandant told NPR, petty officers with two or three kids are paid below the poverty line.
·         If those with steady government jobs are so vulnerable, think of the fragility of low-skilled laborers paid less, who might not be able to get more than part-time work. Every dime that comes in goes out, leaving them on the constant edge of crisis. An uncovered medical bill, missed work for a child’s illness, a car repair, a layoff, reduced food stamps, delayed housing subsidies, or myriad other disruptions can send families into a downward spiral.
·         Those housing subsidies—particularly the government’s Section 8 vouchers that help pay rent to private landlords for low-income tenants—faced interruption, exposing the poor to eviction and surely undermining owners’ willingness to accept the vouchers. It’s hard enough in normal times to get landlords’ participation in the program, and funding is inadequate anyway. Waiting lists are long, and families who have to pay unsubsidized market rents are often forced to cut spending on food. That leads to malnutrition among children at crucial stages of brain development, studies have found, creating long-term intellectual impairment. This is likely to be a hidden cost of the shutdown.

January 17, 2019

The Solution: A Trump-Pelosi Duel

By David K. Shipler

                If you’ve seen the musical Hamilton or read the book by Ron Chernow, you might have gained some appreciation of dueling, not so much as a method of ritualized murder but as a conflict-resolution device. Of course Alexander Hamilton was shot to death by Aaron Burr, which is always a risk in political confrontations, at least metaphorically. Yet it didn’t have to end that way. It could have been played more deftly to regain and preserve honor for both parties.
                Perhaps that’s the answer for President Trump and House Speaker Nancy Pelosi, as my friend Steve Weisman impishly suggested over lunch in Washington this week. Trump is stubborn, and Pelosi’s scrappy, and they’ve wrapped themselves in their egos as some 800,000 Americans, unpaid during the government shutdown, discover the pitfalls of working for Uncle Sam.
                In Hamilton’s age, Chernow writes, duels following insults were “de rigueur” among those “who identified with America’s social elite.” To restore dignity, demonstrate courage, and avoid being marked as cowardly, rising to the challenge was unavoidable. However, “duelists did not automatically try to kill their opponents,” Chernow explains. “The mere threat of gunplay concentrated the minds of antagonists, forcing them and their seconds into extensive negotiations that often ended with apologies instead of bullets.”
                If things went too far and you faced off with pistols, you could “throw away your shot,” that is, aim wildly to avoid inflicting a mortal wound. There’s evidence that Hamilton did just that in his duel with Burr. But the youthful Hamilton of years earlier, alight with revolutionary fervor, sings at the outset of the musical, “I will not throw away my shot!” That’s about both him and his cause. It’s enough to stir the patriotic heart of any American audience, even in our dispiriting time.

January 10, 2019

Trump's Foreign Policy Vacuum

By David K. Shipler
“Pay no attention to that man behind the curtain.”
                                                                                                                   --The Wizard of Oz

            Watching the United States on the world stage today is like suffering from double vision. President Donald Trump strides, postures, and dramatically decrees. Then his subordinates stay approximately where they were before.
Trump credits Vladimir Putin’s denials that Russia interfered in the 2016 election, and then the Justice Department indicts a bunch of Russians for doing precisely that. Trump announces a sudden withdrawal of 2,000 American troops from Syria, and then his national security adviser, John Bolton, says they’re staying there to fight ISIS and defend our Kurdish allies.
It’s not that Trump has no influence over his own foreign policy. It’s that he has no policy. He has only impulses and whims—not all of which are necessarily bad. But since he detests veteran professionals who have been working on these problems for decades, and since he has let Bolton strip the National Security Council bare, Trump’s tweets are unsupported by any process of deliberation or execution that might actually translate into action on the ground.
Although the president is excoriated for this incompetence, it could someday save us from an impetuous war that he thinks up after watching Sean Hannity. Inertia, the tendency of a body to continue traveling at the same speed in the same direction, is fundamental in government. Whether you’re a right-wing conspiracy theorist who calls it the “deep state,” or a center-to-left citizen who laments the paucity of “adults in the room,” your nation’s well-being these days is protected by the difficulty of turning the ship of state on a dime, as Trump repeatedly tries to do.
It would be interesting to know—and in some future year we might find out—whether the generals and admirals have developed a secret method of resistance to this demented commander-in-chief’s rash orders. There have been reports of their slow-walking certain commands that can be bogged down in logistics and bureaucracy. But what if Trump wakes up early one morning, gets incensed by something on Fox and Friends, and calls in the officer with the nuclear football to obliterate a country that has ticked him off? Is there any subversive understanding in the military about how to defy such an order? If so, would it be treason? Probably, but it might also save the country.