A Few Modest Thoughts on the Bergdahl Exchange

by Dr. Gerard Emershaw

The following is a list of thoughts on President Obama exchanging five Taliban prisoners held at Guantanamo Bay for captured Sergeant Bowe Bergdahl.

 

1. Innocent Until Proven Guilty

Regardless of accusations against Bergdahl, the American justice system—including the military justice system—is premised on the concept of innocent until proven guilty. Unless and until Sergeant Bowe Bergdahl is court martialed and convicted, he is simply an American army sergeant who was captured and held by the Taliban. Rushing to judgment on Bergdahl would be a foolish mistake. Just ask the French about Captain Alfred Dreyfus. The same neocon operatives who in an Orwellian fashion made distinguished Vietnam War veteran John Kerry seem like a cowardly traitor and the frat boy weekend warrior George W. Bush seem like a war hero appear to be at work in the Bergdahl story. Regardless of what turns out to be true about the nature of Bergdahl’s capture by the Taliban, the hatred aimed at him by neocons provides a stark counterexample to any rhetoric about supporting the troops. For neocons, troops are nothing more than cannon fodder to be used to fight pointless corporatist wars of choice. Bowe Bergdahl volunteered to serve his country. That is more than enough to earn him the benefit of the doubt until all the facts are in. Serving in the military is far more than chickenhawks like William Kristol, Robert Kagan, Max Boot, Paul Wolfowitz, or the rest of the Trotskyite gang that couldn’t think straight ever did.

2. Mental Health Issues

Assume that Sergeant Bowe Bergdahl did walk off his base and become AWOL. How can anyone be certain that mental health issues were not an important causal factor behind his actions? Prior to joining the army, Bowe Bergdahl was discharged from the Coast Guard for psychological reasons. If he was not psychologically fit to serve in the Coast Guard, might it also not be the case that he was unfit to serve in the army?

Bergdahl also told his parents that he witnessed an Afghan child run down and killed by a military vehicle. If this actually occurred, then it is possible that it led to him suffering PTSD. If it did not actually occur, but he believes that it did, it is a possible sign of mental illness.

When Bergdahl slipped away from his camp, he was armed only with a knife, water, a digital camera, and a diary. Walking out into a hostile terrain filled with potentially deadly enemy insurgents is not prima facie the kind of thing that a mentally stable individual does. The point is that one cannot be certain about his mental state at the time he walked away from his post.

What is certain is that Bergdahl requires mental health care after five years in captivity. Bergdahl has claimed that he was tortured and kept in a cage by his captors. The Taliban is notorious for using torture, so Bergdahl’s claims are hardly implausible. Draft dodging Senator Saxby Chambliss is skeptical about Bergdahl’s torture claims, but his treatment of Max Cleland in the 2002 election demonstrates what Senator Chambliss thinks of veterans.

If Bergdahl does turn out to have been suffering from PTSD or other form of mental illness, he may well become emblematic of the failed neoconservative/neo-progressive wars of choice in the Muslim world. He will be another disposable human being cast aside by the warmongers after he was no longer useful. While it happened on President Obama’s watch and he is responsible, the VA scandal is a symptom of the attitudes that both parties have had toward American military personnel for a long time. The anger toward Bowe Bergdahl just confirms this.

3. 5 for 1

President Obama traded five Taliban prisoners in exchange for the return of Bowe Bergdahl. Israel—a nation that faces actual terror threats and does not need to cook up phony terror plots to foil like the FBI does—traded 1,027 Palestinian and Arab-Israeli prisoners in 2006 in order to bring about the release of its soldier Gilad Shalit. Of these prisoners, 280 were serving life sentences. Combined, the released prisoners were responsible for the deaths of 569 Israelis. This deal was authorized by Israeli PM and Likud Neocon Benjamin Netanyahu. If an Israeli soldier is worth 1,000 Palestinians to the Israeli government, what does it say about the United States government that so many think that an American soldier was not worth 5 Taliban insurgents?

According to Brig. Gen. Mark Martins, the chief prosecutor in the military commission, the five Taliban prisoners exchanged for Bergdahl—Abdul Haq Wasiq, Mullah Norullah Noori, Mullah Mohammad Fazi, Mullah Khairullah Khairkhwa, and Mohammad Nabi Omari—were all unlikely to be successfully prosecuted. If they are not convicted criminals, then these men—as unsavory as they may be—are essentially POWs. The Taliban is not a terrorist organization but is an insurgency made up of members and supporters of the deposed fundamentalist Afghan government. As such, the United States should be planning on releasing such fighters now or in the not too distant future. When the Nuremberg Trials were completed, the United States did not hold German or Japanese POWs indefinitely. If the United States was not afraid of soldiers who fought for the Axis, then it should not be afraid of soldiers who fought for the Taliban. If such an insignificant group as the Taliban is viewed as a legitimate threat to the United States, then the nation is simply not as great or as brave as it once was.

4. Impeachment

In the area of foreign policy, there are several things which President Obama has done which could technically constitute impeachable offenses. Among these actions are his unconstitutional “kinetic military action” in Libya, his drone campaign in the Middle East, and his assassination campaign which led to the deaths of American citizen Anwar al-Awlaki and his son. However, President Obama moving the five Taliban members from Gitmo without Congressional authorization is not among those potential impeachable offenses.

Under the Constitution, the President is Commander-in-Chief of the armed forces. The Guantanamo Bay detention facility is a military prison. Whether President Obama signed the legislation requiring the President to notify Congress in advance regarding the movement of detainees from Guantanamo Bay is irrelevant. The President may not consent to unconstitutional actions.

The Constitution grants Congress the power to declare war. Congress has unconstitutionally ceded this power to the executive branch. However, enumerated powers are not something that can be traded. Congress cannot assume the power to have advanced knowledge or input into the movement of military prisoners just because it has given up powers elsewhere to the President. Article I, Section 8 grants Congress the power to “make Rules concerning Captures on Land and Water.” While charitably this may grant Congress the power to make laws concerning how prisoners which will be sent to Guantanamo Bay are captured, there is nothing in the Constitution which gives Congress any power over these detainees once they are captured.

The main reason that Republicans in Congress have been so quick to seize on this point is that it is a very unique situation that is not likely to be repeated. Therefore, there is no risk of discouraging the next Republican President from being an Imperial President. Neoconservatives and other militaristic Republicans want their party’s next Commander-in-Chief to be able to unilaterally wage war like Caesar. Therefore, they are far less likely to criticize President Obama from doing the same in Libya or for his drone campaign.

On the Washington Redskins’ Name Trademark Cancellation

by Dr. Gerard Emershaw

In a 2–1 decision the Trademark Trial and Appeal Board cancelled the name trademark of the NFL’s Washington Redskins. The sole issue that was considered by the Board was whether the professional football team’s name violated Section 2(a) of the Trademark Act of 1946, 15 U.S.C. § 1052(a). This law states that “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it”:

Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 2(9) of the Uruguay Round Agreements Act [19 USC §3501(9)]) enters into force with respect to the United States.

Therefore, the only question is whether the team nickname “Redskins” disparages American Indians. The first recorded use of the word occurred on October 9, 1813 in The Weekly Register. The article contains quotes from a St. Louis man concerning an expedition that was being led by General Benjamin Howard. The man said that this expedition was to “route the savages from the Illinois and Mississippi territories.” The man continued: “The expedition will be 40 days out, and there is no doubt but we shall have to contend with powerful hordes of red skins, as our frontiers have been lined with them last summer, and have had frequent skirmishes with our regulars and rangers.” Therefore, ‘Redskin’ was coined as a synonym for ‘savages’ in describing American Indians.

Dictionaries tend to support the view that ‘Redskins’ is a disparaging term. These dictionaries are hardly considered bastions of political correctness. Merriam-Webster states that the term is “usually offensive.” The American Heritage Dictionary calls it “Offensive Slang” and states that it is “used as a disparaging term for a Native American.” Dictionary.com characterizes it as “disparaging and racist.”  Random House Kernerman Webster’s College Dictionary calls it “insulting” and “offensive.”  Collins Dictionary calls it “taboo.”

The Washington Redskins’ trademark attorney Robert Raskopf says of the term:

It may or may not be used disparagingly, just like many other terms can. So we don’t really think there’s much to that claim, and once you cross the tiny little line that needs to be crossed and realize that we, the Washington Redskins, have made something honorable and successful and imbued that into this brand, there’s no way that anyone can say that we use that mark disparagingly. It’s a mark. What trademark law’s all about.

However, when asked by a radio host whether he would call an American Indian a “redskin” to his or her face, Mr. Raskopf hesitated before finally replying: “I understand that word isn’t in use as much as it once was. That’s not what this case is about. It’s what our word means.” If the word is not derogatory, why would Mr. Raskopf be so reluctant? Why should he hesitate to use ‘Redskin’ to refer to any and all American Indians to their faces?

The meaning of a word is determined by its use in a social context. In some instances, one can use a word to mean what he or she wishes. For example, one can coin a new use of an existing term. At some point some English user first used the word ‘winner’ sarcastically to mean not a victor but the very opposite—a loser. One can also use a word in a code context. One can imagine a CIA agent using the word ‘winner’ in e-mails, letters, or monitored speech to mean any number of things in order to get important messages to his or her superiors. However, for the most part one cannot use any and all words willy-nilly exactly how he or she wishes. In order for language to be useful as a medium of communication, the standard uses of words come to socially be understood as the meanings of these words. If this in general were not the case, it would simply be impossible for anyone to communicate using a natural language. If each and every speaker used each and every word like Humpty Dumpty—using the word to mean what he or she chooses it to mean—then a natural language simply could not exist.

Those who wish to defend the Washington Redskins are likely to appeal to poll data. For example, a September 2004 National Annenberg Election Survey poll found that over 90% of American Indians are not offended by the name Redskins. Does this matter? If it does, then it means that truth is democratic. It means that a group of people who are stoic can be the targets of slurs simply in virtue of being psychologically strong. Racial, anti-Semitic, sexist, homophobic, and other slurs are derogatory because of how they are typically used and how they have historically been used and not by how effective they are in injuring. If most American Indians are indeed strong enough not to be offended by racial slurs, this does not give everyone license to use those slurs without moral reproach. American Indians have been the victims of genocide, ethnic cleansing, imperialism, government corruption, and just about every evil of the progressive welfare state. Does the fact that they have bigger problems than the name of a mediocre football franchise with a foolish owner and an injured and overrated quarterback mean that they are not owed common decency?

The important thing to note is that nobody is making it a crime or a tort to use the word ‘Redskins.’ Nobody is violating the First Amendment free speech rights of Washington Redskins owner Daniel Snyder or anyone else. Nobody is censoring anybody or anything. While there is a natural right to property and this includes intellectual property such as a trademark, the government—for better or worse—is required in order to establish, exploit, and defend such intellectual property. 15 U.S.C. § 1052(a) is the governing law on the matter concerning the establishment of trademark in American law. It is obvious that ‘Redskins’ violates that law, and therefore, the Trademark Trial and Appeal Board was right in canceling the Washington Redskins’ name trademark. That law, like any other law, is not sacrosanct. It can be repealed and/or altered if need be. The law should be changed. While it makes sense for the federal government not to issue a trademark in a case where deception is involved, there should be no moralistic requirement for intellectual property. Were such a requirement placed on patents and copyrights, it would lead to widespread censorship and politicization of science and technology. But if the law is eventually changed, one would hope that the advocates of the change would not complain when and if some name that is a slur against their race, religion, ethnicity, gender, etc. is trademarked.

Memo Authorizing Targeted Drone Killing of Al-Awlaki Released

by Dr. Gerard Emershaw

The memo by the Justice Department’s Office of Legal Counsel which authorized the targeted drone killing of American citizen Anwar al-Awlaki without a trial was released earlier this week. The memo reasons that the targeted killing of American citizens such as al-Awlaki is not a violation of 18 U.S.C. § 1119 which makes it a federal offense for an American citizen to murder or attempt to murder another American citizen in a foreign nation. The memo appeals to the public authority justification as providing an exemption to the statute in such cases of targeted killings. Public authority justification comes into play where “the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity.” The memo concludes that the Department of Defense and CIA operations involved with the targeted killing of al-Awlaki were justified under a particular variant of public authority under “the lawful conduct of war.”

This defense of the al-Awlaki assassination is dependent upon the War on Terror being an actual war, and this is dependent upon the Authorization for Use of Military Force (AUMF) being a legal Congressional declaration of war. As argued at length in a previous post, the AUMF is not a declaration of war because war must be declared against a specific entity, there is no precedent for declaring war against groups or individuals rather than against nation states, and terrorists cannot be viewed as both criminals and enemy combatants.

Assuming for the moment that AUMF is a legitimate declaration of war, the next step of the memo’s justification for the targeted killing of al-Awlaki is based upon the Supreme Court ruling in Hamdi v. Rumsfeld (2004). In that landmark case, the Court ruled that American citizens designated as enemy combatants have a right to challenge their detainment under the Due Process Clause of the Fifth Amendment. The Court supported its plurality opinion that it was appropriate to limit the amount of due process that an American citizen enemy combatant received by appealing to a three part test formulated in Mathews v. Eldridge (1976):

1. The interests of the individual in retaining their [life, liberty, or] property, and the injury threatened by the official action
2. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
3. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication.

In Hamdi, the Court ruled that an American who was being detained as an enemy combatant after being captured on a battlefield overseas required notice of the charges, access to counsel, and an opportunity to be heard. Although the Court held that the due process requirements of placing the burden of proof on the government and of making hearsay inadmissible would place too much of a burden on the executive branch during hostilities, the due process requirements for such individuals were nevertheless still stringent.

The government claims that capturing al-Awlaki was infeasible. It concludes that it was reasonable to believe that a decision-maker could conclude the threat posed by al-Awlaki’s activities to United States persons was “continued” and “imminent” and that this outweighed the risk of possible erroneous deprivation.

However, the hole in the memo’s reasoning is that depriving an American citizen of his or her life is far more serious than depriving him or her of liberty as in the cases of the detention of American citizen enemy combatants as in Hamdi. This makes it reasonable to conclude that the amount of due process to be afforded to the target of assassination should be equivalent to that afforded to detained enemy combatants if not even greater.

The biggest issue is the Orwellian nature of the War on Terror created by the AUMF. The very vague nature of organizations like Al Qaeda makes it all too easy for the federal government to find even the most arbitrary of connections between an American citizen and Al Qaeda. Even where such connections do not exist—like the alleged connections between Al Qaeda and Saddam Hussein that the Bush administration “found”—this will not necessarily discourage the government. Using its tortured logic, more and more Americans will become potential targets of targeted killing. Public authority and “the lawful conduct” of war can also just as easily be used as justifications for committing domestic homicides. The government sees the entire world as a “battlefield” in the War on Terror, so no American citizen is necessarily safe from losing due process in the name of doing “whatever it takes” to defeat the terrorists. Who decides whether an American citizen constitutes a “continued” and “imminent” threat to the United States? The President? What in Article II of the Constitution grants the Caesar-like power to decide life or death with a thumbs up or down like an Emperor to the President?

Police Brutality and Blowback

by Dr. Gerard Emershaw

On June 7, 2014 in Las Vegas, Jerad and Amanda Miller murdered two police officers in a pizza restaurant and killed a bystander in a Walmart before Jerad Miller was killed by police and Amanda Miller shot herself in the head. As usual, the zombie collectivist mainstream media looked to blame entire groups of innocents for the actions of two murderers. Progressive anti-constitutionalists blamed the NRA and sought to use these horrific crimes as yet another excuse to violate the natural right of Americans to bear arms. Others blamed the supposedly fringe political beliefs that the Millers held. The collectivist logic of such progressive totalitarians is that if one person who holds Tea Party beliefs, reveres the Constitution, listens to Alex Jones, believes in so called “conspiracy theories,” and mistrusts the federal government, then all who do so are equally guilty. Guilt by association. If one gun owner commits a murder, then all gun owners are murderers. If one person who espouses the views of the Patriot Movement commits a murder, then all Patriots do.

Of course, to be consistent, this would have to go both ways. Under this collectivist approach, if one person of any kind commits a murder, then every token of that type is guilty of murder. All Muslims are guilty of the 9/11 attacks. All Christians are guilty of the Centennial Olympic Park bombing. All Jews are guilty of the King David Hotel bombing. All blacks are guilty of the crimes of the Zebra Killers. All Germans are guilty of the crimes of Hitler. All Russians are guilty of the crimes of Stalin. All Italians are guilty of the crimes of Mussolini. All Chinese are guilty of the crimes of Mao. All Japanese are guilty of the crimes of Tojo. All Cubans are guilty of the crimes of Castro. In the end, everyone should be seen as guilty. Perhaps everyone should be rounded up by the DHS under the NDAA and thrown in Gitmo. Or perhaps we should just focus on the individuals who commit crimes and hold them accountable instead.

One angle that has not received much attention is the fact that the Millers were inspired to commit their crimes because they saw their victims as oppressors. This merits attention. It is not to say that Officer Igor Soldo or Officer Alyn Beck were oppressors. By all accounts they were honest and hard-working officers. However, there is no doubt that there are constantly countless high profile examples of stories of law enforcement officers in all levels of American government who are oppressive. Whether it is Albuquerque police killing a homeless man, a Pittsburgh police officer punching a woman at a parade, or a Memphis police office stealing a Make-A-Wish Foundation gift from a terminally ill three-year-old child, there is no shortage of corrupt and oppressive law enforcement officers. Each and every time that some rogue cop commits a crime or abuses his or her power, it creates the potential for blowback that could cause honest police officers such as Officer Igor Soldo or Officer Alyn Beck or innocent civilian bystanders such as Joseph Wilcox to be put in harm’s way.

While the responsibility for crimes lies with those who perpetrate them, corrupt cops are guilty of exacerbating the risk of crimes against law enforcement. There are many disgruntled and unstable people like Jerad and Amanda Miller who may be like tinderboxes. Incidents of police corruption and police brutality create blowback that makes it much more likely that such individuals will act out in violent ways. This line of thinking differs greatly from scapegoating movies, songs, books, video games, or any other form of free speech. While human beings have a natural right to produce a violent movie, a song with provocative lyrics, a book with revolutionary ideas, a violent first person shooter video game, etc., there is no natural right for a police officer to commit crimes or abuse his or her authority.

Timothy McVeigh was set off by abuses of federal law enforcement authority at Waco and Ruby Ridge. While McVeigh and Nichols were responsible for their own actions, the federal officers involved in those incidents provided important causal links. Perhaps if Waco and Ruby Ridge were handled better and casualties were avoided, the atrocity in Oklahoma City would never have taken place. Unfortunately, in the eyes of statists, the government can never possibly be a causal factor in any negative consequences. Only private sector entities that they do not like could possibly be.