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Major Todd Pierce (U.S. Army, Retired) is an attorney who served as a Judge Advocate General (J.A.G.) officer in the United States Army. In that capacity, he has served on the defense teams for two Guantanamo military commissions defendants. On October 13, 2014 I had the privilege of interviewing Maj. Pierce by telephone. What follows are my interview notes, as corrected by Maj. Pierce.
The Talking Dog: The customary first question is “where were you on Sept. 11th”. In your case, I know you were on active duty (in Army Reserve command), and I know you’ve described almost the gestalt of the world changing as the day went on… can you describe that day, in terms of where you were geographically, and anything else of note– either small picture or big picture or both?
Todd Pierce: I was stationed, and on duty, at Fort Snelling, MN with the 88th U.S. Army Reserve Command in Minneapolis, MN. The Command covered 6 Midwestern states. A fellow officer came into my office and told me that a plane had hit the WTC, and we thought, like everyone else, an accident, so I continued working until he came back in again and told me of the second plane hitting and we both knew then it was a terrorist act. I was the only JAG Officer in the Headquarters for most of the day as the senior JAG officer did not come in that day until about 3:30 pm, for some reason. Shortly after the second plane hit, a staff meeting was called where we discussed what had happened, and how to harden the many reserve centers in the command. Later in the day we knew we would be mobilizing soldiers for contingencies and preparations began to be made for that.
To me, there seemed to be a bit of hysteria taking hold of some of my fellow soldiers in their response as more details came in that day along with speculation on who was responsible. It was like being on the set of Fox News, which, unfortunately, was watched by far too many officers in their offices, guaranteeing an irrational, near-hysterical response from them. I thought if that was typical, there would be an over-reaction by the U.S. in many ways that would be detrimental to our interests. On the way home, I hit a traffic jam with the traffic backed up for about 5 miles. This turned out to be due to an elderly man standing on a highway overpass waving a flag frantically. I didn’t see that as unusual under the circumstances but he was out there the rest of the week backing up traffic so that I finally complained to him. After all, I was serving my country and appreciated getting home after some long days. But it was further evidence of the hysteria that had taken hold of too many people, and we saw how President Bush, Dick Cheney, and the neocons would exploit that in the succeeding years; all to the detriment of the United States as their “strategy” was the exact opposite of how to respond to terrorism.
The Talking Dog:: As a JAG officer, you came to volunteer to defend those accused of violations of the law of war before the Guantanamo military commissions. If you can, what led you to volunteer for such service– was there anything particular in your own background that led you to do so? Please identify your clients, and their current whereabouts or dispositions (for example, we know that Mr. al-Bahlul’s address remains “Guantanamo Bay, Cuba, apparently serving life sentence”).
Todd Pierce: I have represented two prisoners as a member of teams: Ibrahim al Qosi in his Military Commission (now back ihis home country after serving an additional two years after his commission), and Ali al Bahlul in the appeal of his convictions, which is still going on, and also served as resource counsel on a third case. I explained why I volunteered an article which appeared in the National Law Journal in 2011, “Guantanamo at 10.” There, I explained that I had grown up learning about harsh and illegal treatment of prisoners who should be treated as POWs because my father was taken prisoner by the Japanese in the Philippines 4 months after the beginning of World War II and survived the Bataan Death March and then three more years of captivity under the most grueling of conditions. Though he didn’t talk about it except when I would ask questions as I got older, it was clear that he had suffered severely as a result of the Japanese violations of the International Law standards for treatment of POWs.
The Talking Dog:: Segueing over to Mr. al-Bahlul, the D.C. Circuit recently issued a broad “en banc” opinion finding that some of what al-Bahlul was charged with and convicted of [during a proceeding where the defendant stood mute] aren’t exactly “war crimes”. Can you tell me, procedurally, where Mr. al-Bahlul’s case now stands (notwithstanding Mr. Al-Bahlul’s refusal to participate in his own
Todd Pierce: Oral argument was heard October 22nd before a panel of the D.C. Circuit. The only issue is whether conspiracy to commit terrorism is a war crime. The court has already held that material support for terrorism and solicitation to terrorism are not war crimes, so only the conviction of conspiracy remains. The government’s theory of war crimes is based on conflating martial law– military governance over occupied territory or under a declaration of martial law in domestic territory — with other aspects of the law of war, in order to try to create “war crimes.” For purposes of the commissions, if the conduct alleged is not a war crime, then the commissions have no jurisdiction to try al-Bahlul, or anyone else, for that conduct. Again, after the Hamdan II decision, inchoate crimes of “material support” and “solicitation” associated with terrorism are no longer deemed war crimes. Traditionally, war crimes were thought to include conspiracy only if it was conspiracy to commit genocide or aggressive war– conspiracy to commit acts of terrorism has never before been a basis for war crimes jurisdiction. Procedurally, the en banc D.C. Circuit acting as a whole vacated al-Bahlul’s convictions for everything except conspiracy, and that is the issue in front of the Court now. While the government concedes that conspiracy is not a war crime under International Law, they have invented a “domestic common law of war,” taken mostly from the Civil War martial law cases.
The Talking Dog:: Following up on that point, can you expand on “domestic common law of war,” and tie it to something you said that to me is the most succinct shorthand for developments in law these last dozen years: “national security law = martial law”? Please spend as much, or as little, time as
necessary with Civil War precedents as a basis for these developments (though David Addington and John Yoo and the gang would have presumably gone to Hundred Years War or Peloponnesian War or Storage Wars if necessary to bring about Dick Cheney’s dream of a shining interrogation center on a hill), as well as discussing “we’re all Cheneyites now”.
Todd Pierce: The government is indeed relying on a conflation of the law of war and theapplication of martial law in the Northern states during the Civil War. Taking those cases as precedents, even though they only applied in U.S. Union territory under the declarations of martial law in certain areas of the North and then throughout the North with Lincoln’s declaration of martial law in September 1862, the U.S. government is essentially asserting they can exercise martial law throughout the world. It has to be noted that in the Civil War, martial law was only declared for the Union States, not the Confederates as the Confederates were treated as combatants and received belligerent rights so that they were not prosecuted even for killing Union soldiers.
But what the U.S. government has been doing since John Yoo and his cohorts invented the scheme is to constantly assert that we “are at war,” and therefore the President, as Commander in Chief, has virtual powers of a dictator under the law of war, to which martial law is a branch of. The apparent contention is that we don’t need a declaration of martial law, because a state of war in any non-constitutional country IS effectively a state of martial law. Of course, our Constitution prevents this. And so, the architects of the war on terror’s legal paradigm go back to the era of Lincoln and the Civil War, when, of course, the nation did face a genuine existential threat. Martial law was actually declared in September 1862 specifically to suppress “ disloyal acts” in the North, which primarily was “speech” and as a result, military commanders had broad authority to pick up what they believed to be pro-Confederate sympathizers, with detention authority and trial by “drumhead courts,” military commissions. This is what government officials, such as Military Commissions Chief Prosecutor Brig. Gen. Mark Martins proudly hale as part of our legal traditions, even though they were thoroughly repudiated immediately after the Civil War by the U.S. Supreme Court in the Ex Parte Milligan case.
The new danger is that the “domestic common law of war” has creeped into our overall statutory scheme: we now have Section 1021 which actually permits domestic military detention of persons, not excluding American citizens, merely suspected of “supporting” terrorism, without Bill of Rights protections. It has not been implemented, but we know, as a result of the position taken by the government in Hedges v. Obama that, under this provision, even a journalist such as Chris Hedges could find himself subject to military detention. This has introduced a degree of martial law into the ordinary course of daily life; it is very dangerous, and we do not know how it will play out. Certainly, Barack Obama has not used this provision for the purpose of detaining citizens (or journalists) for speech, but his Administration has asserted the right to do it, and we certainly have no idea how a future President would use these provisions.
The Talking Dog:: Please discuss the revelations of Edward Snowden, Chelsea Manning, and/or Julian Assange– particularly in the context of law of war issues and the other items we’ve been discussing, and tell me, please, how a democracy can function when the government operates in secrecy?
Todd Pierce: The simple answer to that question is, it can’t. Without the people’s right to know, there is no meaningful democracy. The people under our Constitutional system as the ultimate sovereign cannot operate without critical information as to what their government is up to. Indeed, they cannot even make a meaningful judgment as to electing candidate A vs. candidate B when they have no access to real information. We just do not end up with a meaningful democracy without meaningful information that isn’t classified!
Snowden, Assange, Manning– all did a great service to this country. Going back to Vietnam, we have learned that our military leaders are not all-wise. Even an ultra-conservative like the American James Burnham understood this in recognizing that the World War II Germans had entrusted all information and decision making in the hands of a few individuals, all having only a military background as far as leadership, and who had internalized that way of thinking. With that background, too often they are incapable of thinking more broadly beyond just achieving an immediate military objective, with inevitable victory to follow in their eyes. Unfortunately, we have been giving virtually unfettered discretion to similar minded militarists, such as when President Obama acceded to demands by Generals Stanley McChrystal and David Petraeus, and former military officers John McCain and Lindsay Graham, when they called for surges in troop numbers in Iraq and Afghanistan, making matters worse. We are getting an idea of just how much the government and the military are trying to keep secret. This amounts to a dereliction of duty in a democracy by both our political and military leaders, and it ends up being to the detriment of the conduct of the war against terrorism, and redounds to the benefit of our enemies. The Constitution is our greatest strength– not a weakness- and it gives we the people the absolutely right to know what we need to know to make meaningful democratic decisions, especially vital issues of how to conduct foreign policy, contrary to John Yoo’s and Dick Cheney’s claims.
The Talking Dog:: Anwar al-Awlaki… please discuss, particularly in the context of law of war issues and the other items we’ve been discussing (feel free to also discuss my college classmate Barack’s handling of legal issues associated with what used to be called “the war on terror”).
Todd Pierce: The government will not reveal the information associated with the decision to kill Mr. al-Awlaki, or its legal rationale for doing so, except a heavily redacted version. We know that they have determined that they can target “operational leaders” of al Qaeda, and they have said al-Awlaki was designated as an operational leader, but we have to take everything that the military says with a grain of salt as its their policy to dissemble. It may seem to be funny to start characterizing a propagandist like al-Awlaki as an “operational leader.” But under the expansive meaning of “belligerency,” even propaganda amounting only to opinions contrary to U.S. policy can result in elevation to “operational leader” status and then personal targeting, which is similar to what was done under the Phoenix Program of assassination during the Vietnam War.
Once again, this is based on an expansive reading of military law precedent from the martial law context during the Civil War. Then, newspapermen, publishers, even just outspoken persons with opinions, who might “say something embarrassing about the army”– might end up being designated as “operational leaders” because their speech could “discourage enlistments”—an arguably hostile act!
I wrote about this in the context of Vietnam era generals… their ridiculous contentions that “discouraging speech” could serve to result in a loss of national will to fight. This is precisely the logic employed by Germany in the 1930’s and 1940’s, and used in their infamous “people’s courts” and “special courts” and similar structures. “War treason” was found to be anything embarrassing to the regime.
Troublingly, it appears we have adopted similar legal forms as Nazi Germany for these principles. A German Jewish lawyer named Ernst Fraenkel, in a book called The Dual State, observed that martial law was the constitution of the Third Reich (he was writing in the late 1930’s, before the full brunt of the Holocaust and World War II had taken place). He analyzed the legal forms of the Third Reich as a prerogative state, which coexisted (albeit in a superior position) with the normative state. The prerogative state under der Fuhrer is, of course, martial law, or as our Supreme Court once called it: Martial Rule. Under Section 1021 of the NDAA, we have a degree of martial law baked into our system now. Of course, the Supreme Court’s case of ex parte Milligan rolled back the martial law of the Civil War, after it ended. Indeed, much of the conduct of Union Authorities during the Civil War violated the Constitution. But that was the one period of our history when there was an existential threat to the continuing existence of the U.S. as it was then known, unlike today.
The concept of the President as commander in chief with unlimited war powers is what amounts to a prerogative state as are any authoritarian states in history and was revived from that very brief and repudiated Civil War period by by legal authoritarian John Yoo and the Bush legal team; their notion that the President has unfettered dictatorial powers is obviously wrong– but it is shoving its way into legal doctrine still under the Obama legal team with opinions such as the Drone memo.
The Talking Dog:: Can you tell me how your Guantanamo commission representation has effected you personally, professionally, ethically or any other way you’d like to discuss?
Todd Pierce: For me, working on these cases has revealed just how dangerous the government’s positions are. I have been outspoken in trying to “out” the government’s contentions, and in arguing as to why we should not be follow this tack. Second, the government’s position actually puts us in greater danger. Our leaders are guessing– they actually do not know what they are doing. But as a result of these policies– attack everyone, anywhere based on any perception of threat– huge wealth transfers in favor of the military industrial complex (and allied corrupt foreign leaders) have taken place. And so, I am trying to become even more outspoken. Through getting together with others (like our friend Andy Worthington); and trying to form groups involved in upholding the rule of law.
The Talking Dog:: Do you have a prediction for, say, five years out from now, and ten years out from now? Presumably, the Afghan war will technically be long over… other than the “high value” detainee commission trials still not being finished, do you have any other predictions for the Guantanamo project?
Todd Pierce: We have to acknowledge that our government contains genuine authoritarian militarists. Sure, there are the McCains and Grahams, but there is also the Hillary Clinton wing of the Democratic Party. We have Leon Panetta, the former Defense Secretary, telling us that he anticipate that the wars coming up will entail thirty years of fighting! It is amazing that someone can look forward into the future and suggest exactly how long a war will last… But of course, if we plan on occupying so many countries, this is what happens.
The “Pentagon’s New Map” lays out the world into core countries, meaning the United States and allies Western Europe– and then we would everything else into
categories of the periphery, and then police the rest of the world. Of course, there might be some rebellion from this arrangement! As I’ve written before, we’re all Cheneyites now— the whole world is now subject to our military domination. We have actually decided to define rebellion against U.S. occupation as terrorism. (Another definition, of course, might be “blowback” as Chalmers
Johnson defined it).
So when Panetta says we will be at war for thirty years, it means we will be looking for places to intervene, resulting in yet more “terrorism” resulting in yet more war. It will end catastrophically both constitutionally and financially.
In that context, Guantanamo is an ideal detention facility for authoritarians! Island prisons have historically been favored for this purpose. Bagram is working out to be another… the United States is now taking other prisoners from all over the world to Bagram– in the middle of a war zone! At this point, extra-legal “courts” and military detention apparatuses are now firmly in place. How far will this goes? It’s anybody’s guess. It will continue to erode our basic protections, and, if unchecked, will bring about an end to our constitutional system (except for what Fraenkel would call “the normative state”– things like routine divorces, property conveyances and the like), while the “prerogative state” swallows everything else, in gross violation of both our Constitution and international law.
The Talking Dog:: Please comment on the recent machinations re: “the Islamic State” (ISIS, ISIL, or whatever you want to call it) in the context of issues we have been discussing, particularly ournation’s apparent predilection to try to occupy every other country on Earth.
Todd Pierce: That’s just it– our response to ISIS appears to be part of our need to occupy everything everywhere! Our fingers are still all over Iraq! While Obama is accused of having a failed policy for withdrawing troops from Iraq, all he did was what Bush had previously agreed to do.
At a book signing by Thomas Ricks after he had exalted Petraeus for an hour, Ricks immediately conceded the surge had been a failure, agreeing with an audience member (me) that it was a failure because there was no reconciliation reached among the parties already there. And so we have a fiction about “success” in Iraq, but all American policies led to the creation of ISIS, beginning with the American invasion of Iraq, and actually before with the years of sanctions on Iraq which Madeline Albright admits killed at least 500,000 Iraqi children.
Now, of course, ISIL is being used as a pretext to go back in! This, of course, will only accelerate disaster.
And as we ramp up, ISIS gets stronger, because demonizing of that group by the United States is an effective combat multiplier for them, as we go into a new war! ISIL is clearly willing to have this fight– and our demonizing only bolsters the position of those who see the United States as the cause of the problems over there and seeing ISIS as willing to confront American imperialism.
The Iraq war has been called the greatest strategic blunder in American history– by General William Odom! General Odom was once Director of the Defense Intelligence Agency and seems to have been the last high ranking American General who understood real strategic interests and not confusing them with immediate, transitory tactical interests which always call for another war. Obama compounded the disaster by adopting Bush’s policy of trying to topple regimes we didn’t like. General Wesley Clark told us that the Bush Administration was planning exactly that- to topple regimes– and it was their intent to do so all along. So, this is what we’ve been doing– the line is continuous– Iraq, Libya, now a try for Syria… this led directly to the birth of ISIL, at the behest of Obama in trying to take out Assad, we created ISIL ourselves! The quandary of course, is that we’re now facing the inevitable blowback that this kind of activity creates. The more of it we do, the more we ultimately lose. Right now, giving up some of our “control” would be the best policy… instead we’re trying to find a “fix” that amounts to more of same.
The Talking Dog:: Anything else I should have asked you but didn’t, or anything else you believe needs to be discussed on these issues?
Todd Pierce: As a military officer, the oath I took was not to the country, or to the President. It was to protect and defend the Constitution of the United States. Indeed, to defend this nation is to defend the Constitution as that has been shown to be our greatest strength in permitting dissent to government policy which has so often been misguided. This is particularly true during wartime, especially a feigned war as is the present. Americans had better take an interest in how their Constitution is being eroded before their eyes, or it will inure to all of our detriment. The people must demand a genuine rule of law, and end to these continuing wars and their ongoing subversion of the Constitution. It damages all of us and diminishes national security, paradoxically.
The Talking Dog: I join all of my readers in thanking Major Todd Pierce for that fascinating and informative interview.
Readers interested in legal issues and related matters associated with the “war on terror” may also find talking dog blog interviews with former Guantanamo military commissions prosecutors Morris Davis and Darrel Vandeveld, with former Guantanamo combatant status review tribunal/”OARDEC” officer Stephen Abraham, with attorneys David Marshall, Jan Kitchel, Eric Lewis, Cori Crider, Michael Mone, Matt O’Hara, Carlos Warner, Matthew Melewski, Stewart “Buz” Eisenberg, Patricia Bronte, Kristine Huskey, Ellen Lubell, Ramzi Kassem, George Clarke, Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in “the war on terror”), with attorneys Donna Newman and Andrew Patel (representing “unlawful combatant” Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with former Guantanamo military guard Terry Holdbrooks, Jr., with former military interrogator Matthew Alexander, with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA’s extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with law professor Peter Honigsberg on various aspects of detention policy in the war on terror, with Joanne Mariner of Human Rights Watch, with Almerindo Ojeda of the Guantanamo Testimonials Project, with Karen Greenberg, author of The LeastWorst Place: Guantanamo’s First 100 Days, with Charles Gittings of the Project to Enforce the Geneva Conventions, Laurel Fletcher, author of “The Guantanamo Effect” documenting the experience of Guantanamo detainees after their release, and with John Hickman, author of “Selling Guantanamo,” critiquing the official narrative surrounding Guantanamo, to be of interest.