Nine: The Tetragrammaton

Coping With Terrorism: United States, Germany, and South Korea

Introduction

The writing, as they say, was on the wall: hindsight makes it clear that 1993's World Trade Center bombing and 1995's Oklahoma City bombing (of the Alfred P. Murrah Federal Building) were precursors to the spectacular September 11, 2001 attacks. If the end of the Cold War ushered in a New World Order, the decade that followed brought Mass Terrorism. But the United States, Germany, and South Korea are not simply confronting Islamic extremism; there are all varieties of domestic terror to worry about too. In the United States, for example, white supremacist groups like Aryan Nation, anti-abortion groups like Army of God, and animal rights activists such as PETA (People for the Ethical Treatment of Animals) have a terrorist agenda. The German government has been at war with the leftist terror group Red Army Faction (RAF) since the 1970s, as well as a host of neo-Nazi groups. South Korea has the unique privilege of being bordered by a virtual terrorist state--North Korea. Since 1953 when hostilities ceased in the Korean War, the country has lived in a state of martial law and has beaten back numerous covert insurgencies. Moreover, the national security apparatus and criminal justice system of each country has its hands full, for each plays a part in holding back the tide. One wonders if this is not some Promethean effort that will ultimately fail.

Overview of Terrorism

According to Laqueur (1996, p.24), terrorism can be defined as "the substate application of violence or threatened violence intended to sow panic in a society, to weaken or even overthrow the incumbents, and to bring about political change." It can at times include guerrilla warfare and may even be a substitute for war between states; but unlike guerrillas, terrorists show no interest in taking and holding territory (ibid). And much of what terrorists do seems geared toward generating publicity, hence the practice of "taking responsibility" for even the most heinous attacks. Publicity--especially of the international variety--is the oxygen fueling the fires of terror in places like Israel, Northern Ireland, Turkey, Sri Lanka, Iraq, and now the United States.

And it is not a recent phenomenon: "In 1894 an Italian anarchist assassinated French President Sadi Carnot. In 1897 anarchists fatally stabbed Empress Elizabeth of Austria and killed Antonio Canovas, the Spanish prime minister. In 1900 Umberto I, the Italian king, fell in yet another anarchist attack; in 1901 an American anarchist killed William McKinley, president of the United States" (ibid). These were political attacks, driven by extreme right-wing or extreme left-wing ideologies. Modern terrorism, however, is largely ethnic-separatist in nature, which bestows a distinct advantage. Ethnically motivated terrorists "have more staying power than ideologically motivated ones, since they draw on a larger reservoir of public support" (ibid). In Iraq, for example, suicide (and homicide) bombers may be viewed as "freedom fighters," engaging in jihad to drive out occupying American forces. These individuals (who so fearlessly sacrifice their lives) gain much sympathy and admiration among their countrymen, while American soldiers, no matter what their motives, will always be foreign invaders.

Ideological Roots--Islamic Fundamentalism

Although traditional warfare has always included its fair share of butchery upon non-combatants, the historical emphasis was on armed conflict between opposing armies. Terrorism's distinct characteristic is that it almost exclusively targets non-combatants--men, women, and children indiscriminately; and the more horrific the atrocity, the more the terrorists seem to revel in it. After all, the greater the savagery, the greater the fear. For this reason, bombing a school bus full of children has a much greater "terror" value than, say, ambushing a squadron of armed soldiers. This requires some explanation (if ever acts like these can be explained). Laqueur writes, "Terrorist groups traditionally contain strong quasi-religious, fanatical elements, for only total certainty of belief (or total moral relativism) provides justification for taking lives" (ibid). Some mechanism for negating ordinary "humanist" emotions has to be present, and that mechanism is religious fundamentalism.

Let us, therefore, take a moment to examine the base of such fanaticism, that which arises out of Islamic fundamentalism in particular. According to Albertini (2003, p.455), Islamic fundamentalism represents a drastic break with a centuries-old scholarly tradition:

Not only do Muslim fundamentalists and Islamists--that is, fundamentalists with a political agenda--show no interest in formal religious training; they are also 'anti-intellectualists,' according to Islam's own standards of religious education. On the one hand, they deny any value to endeavors such as independent reasoning (ijtihad), a source of legal decisions dear to most Islamic schools of law since the Middle Ages. Consequently, they have no notion of a communal scholarly quest that requires a free space of inquiry and remains by nature open-ended, which was common practice in the classical madrasa. On the other hand, although fundamentalists keep referring to 'tradition,' a key notion in their ideology, they actually prove to be 'anti-traditionalists' with respect to what has historically been the practice of Islam.
This, of course, parallels developments in Islam's sister religion Christianity: based on the four gospels, acts of the apostles, and Pauline letters, Christianity later embraced Aristotle and Hellenism, Thomas Aquinas and scholasticism, even reformers like Erasmus. After an initial period of hostility toward science, modern Christian thinking has reached an uneasy--albeit sustained--truce with it, holding science and faith to represent alternate approaches to the same Truth. But then arises Christian fundamentalism, with its insistence on scriptural literalism (Biblical inerrancy), rejection of science and secularism, not to mention centuries of intellectual endeavor. In an environment of political and social turmoil, this attempt to turn back the hands of time has great appeal.

Islamic fundamentalism, then, is as much an attack on traditional Islam as it is on the non-Muslim world, and is a three-pronged attack against theology, law, and ethics. The most obvious break with tradition involves ethics (which would not countenance the slaughter of innocents). Islamic ethics divides acts into five categories: (1) obligatory (fard); (2) not obligatory but recommended (mustahabb); (3) neutral (mubah); (4) not forbidden but discouraged (makruh); and (5) forbidden (haram). An example of fard would be daily prayers and ritual fasting, an example of haram adultery or murder, thus "there is very little a Muslim can be forced to abide by on solely religious grounds" (ibid). Only in nations where the shari'a is strictly upheld (these days Saudi Arabia and formerly, Afghanistan) is fard backed by force of law (wahib). Moreover, not all obligations need to be fulfilled collectively, thus, "as long as a reasonable number of Muslims is involved in fighting jihad, the obligation as such is acquitted. In other words, holy war is not an essential obligation (fard al-'ayn) that is individually binding but an obligation satisfied in the name of all by being assumed by some (fard al-kifaya)" (ibid). That qualification is a good example of a liberal Islamic tradition, which works within an ethical code but is not hidebound by any strict, invarying interpretation. To fundamentalists, however, "claims such as these are an outrageous violation of Islam's true legacy. In their eyes, Islamic Law has no need for adaptations or alterations. The Law and its accompanying ethics are to be uniform throughout the Muslim world and unchanged throughout the ages" (ibid). The fundamentalist, in other words, wants to force that part of the world to remain forever in the 8th century A.D.

Terrorism in America

Terrorism in the United States is nothing new. During the late 19th century, for example, anarchism was responsible for a multitude of attacks worldwide, including the September 6, 1901 assassination of President William McKinley. According to Roberts (1987, p.793), "The anarchists especially succeeded in pressing themselves on the public imagination during the 1890s when a series of acts of terrorism and assassinations received wide publicity; there was by then a value in such acts which transcended their immediate object because the growth of the press had meant that great publicity value could be extracted from a bomb or a dagger stroke." Which brings up one of the most compelling points: the desire, in fact the need, for publicity if terrorism is to be effective. The idea that acts of mass terror, such as the recent train bombings in Madrid, Spain (apprx. 200 dead, last count) are in reality horrific publicity stunts may be unsettling, but the truth is terror is aimed at the mass consciousness. The idea seems to be that if people grow fearful enough, they will pressure their political leaders to change their policies.

One particularly devastating act of American terror was the Oklahoma City bombing. The initial reaction was that it must have been foreign terrorists at work--al Qaeda perhaps. But the bombers turned out to be homegrown. Although it was never pursued, there were indications of foreign influence. O'Meara (2001, p.15) writes,

During the trial of Timothy McVeigh, the convicted mastermind behind the Oklahoma City bombing, information surfaced concerning [co-conspirator Terry] Nichols' frequent visits to the Philippines; McVeigh attorney Stephen Jones later wrote about this extensively in his book Others Unknown: Timothy McVeigh and the Oklahoma City Bombing Conspiracy. According to Jones' investigation, Nichols made numerous trips to the Philippines beginning in 1990, many lasting more than a month. Nichols reportedly attended a meeting in the early 1990s on the predominantly Muslim island of Mindanao, a hotbed of fundamentalist activities, at which Ramzi Yousef, Abdul Hakim Murad and Wali Khan Amin Shah were present. The themes of the meeting were 'bombing activities, providing firearms and ammunition, training in making and handling bombs.' Yousef was the mastermind of the World Trade Center bombing in 1993; Murad and Shah were convicted in a 1996 conspiracy to blow up 12 U.S. jetliners.

I'm not sure what you say about such connections (if true) other than "Birds of a feather..." Mutual hatred of the United States government is the glue making for such strange bedfellows. Posse Comitatus, a Michigan based right-wing militant group, "have for years been in contact with Iraq and other rogue Arab nations that share a hatred of Israel" (ibid).

Another suspected conspirator in the Oklahoma City bombing was one Dennis Mahon, "described in Jones' book as 'a virulent racist and...avowed enemy of the U.S. government' and is a high-ranking member of the White Aryan Resistance (WAR) movement" (ibid). Mahon, classified by Interpol as an "international terrorist," has been banned from entering Canada and the United Kingdom; for some reason, the FBI declined to interview him in connection to the Oklahoma City attack (ibid). Other domestic terrorists with Aryan Nation ties include microbiologist Larry Wayne Harris and accused abortion clinic bomber Eric Rudolph (who is now in custody). Harris was arrested in 1998 for "conspiring to 'possess biological agents and toxin, to wit: anthrax and anthrax precursors for use as a weapon'...Furthermore, in a 1996 letter to Aryan Nation founder Pastor Richard Butler, the white-supremacist leader says Harris requested that Butler publish his manuscript on germ warfare, in the preface of which Harris described an encounter with an Iraqi who provided a lengthy commentary on biological warfare and detailed the progress of the Iraqi program in the United States. Butler did not publish the manuscript but confirms that, until his arrest in 1998, Harris had been a member of the Aryan Nation" (ibid). Rudolph, of course, is suspected of bombing an Atlanta abortion clinic, gay nightclub, and Centennial Park (during the Olympics), and had ties with the Christian Identity Church of Israel in Schell City, Mo. (ibid). According to Pastor Butler, there is no connection between white supremacists and mid-eastern terrorists: "We don't have anything to do with the Iraqis. They're not white people, but we're sympathetic to them. We're not into spreading plagues, but I say more power to whoever [sic] is doing what he thinks is best. That's between him and his God." (qtd. in O'Meara). The FBI, nonetheless, suspect that the anthrax mailings to then Senate Majority Leader Tom Daschel and NBC anchorman Tom Brokaw originated domestically.

Terrorism in Germany

Undoubtedly the most notorious instance of terrorism on German soil occurred during the 1972 Olympics in Munich. American swimmer Mark Spitz and Soviet gymnast Olga Korbut were winning gold medals for their respective nations. But on September 5, the 11th day of competition, eight Palestinians from the militant group Black September attacked the Israeli team. McCollum (2002, p.26) describes the scene:

Shortly after 4 a.m., the eight men clambered over an unguarded section of the fence around the Olympic Village, a housing complex for 10,000 participants. Posing as athletes themselves, they went to Building 31, where the Israeli team slept. Inside, they unpacked guns and grenades from their gym bags. By 5:10 a.m., the terrorists had shot to death wrestling coach Moshe Weinberg, fatally wounded weight-lifter Joseph Romano, and rounded up nine other Israelis: five referees and coaches, two weight-lifters, and two wrestlers, including teenager Mark Slavin, 18. The terrorists tied them up in a bedroom, and dragged in the dying Romano as a warning. Reports of shots led police to investigate and surround the building. From the second floor, the terrorist leader, known as Issa, dropped two pages of demands, calling for the release of 236 prisoners, almost all being held in Israel. Deadline: 9 a.m.

Israeli authorities refused to negotiate with the terrorists. German police, stalling for time, offered ransom money. When the terrorists demanded safe passage to a sympathetic Arab country, they, along with their nine hostages, were transported via helicopter to an airfield. There, a bungled rescue attempt resulted in more carnage:

The Germans didn't have floodlights, enough snipers, or any walkie-talkies to set an effective trap. Amid confusion, two of the snipers opened fire shortly after 11 p.m. A chaotic gun battle ensued. The hostages, bound together, were trapped in the helicopters. About midnight, police began an assault using armored cars. A Palestinian gunman fired point-blank into the four hostages in one helicopter, then tossed in a grenade. The helicopter erupted in a fireball. Another terrorist machine-gunned the remaining five Israeli captives. Too late, the snipers shot the terrorists one by one. When fighting ceased around 12:30 a.m. on September 6, five of the Palestinians and a German police officer had been killed, and three terrorists captured. All nine of the Israeli hostages were dead (ibid).
The '72 Games became known as the Olympics of Terror.

Since the early '70s the German government has been at war with a far-left terrorist group, Red Army Faction (RAF). According to The Economist, "left-wing terrorists have killed 23 people since 1972, many of them top officials or businessmen. In November 1989 Alfred Herrhausen, the boss of Deutsche Bank, was blown up; in April 1991 Detlev Rohwedder, the head of the Treuhand, the agency handling East German state property, was shot dead. The police routinely attribute such killings to the Red Army Faction, whose current strength is in doubt, though it was certainly a dangerous group in the 1970s" (1993, p.42). Not unlike the Irish Republican Army in Northern Ireland, the RAF had been negotiating a cease fire with German authorities. But a bloody confrontation in the early '90s led some to question the German government's position. On June 27, 1994, operatives of GSG-9--Germany's antiterrorism unit--attempted to capture suspected RAF terrorist Wolfgang Grams and his girlfriend Birgit Hogefeld, at a train station in Bad Kleinen. Official reports said that as police approached, Grams shot and killed an officer and was then gunned down himself. But eyewitness accounts contradicted that story, alleging that Grams had been murdered in cold blood. According to Jackson (1993, p.44), "News organizations quoted two witnesses as saying policemen held Grams down after he was captured and shot him to death at point-blank range. Said Joanna Baron, a sales-clerk at a station food stand: 'Two policemen walked up to Grams, who was lying motionless. One bent over and shot him several times from close up. Then the second officer shot at Grams, but more at his stomach and legs. He shot several times.' The subsequent medical examination supported eyewitness accounts: it showed that the shot that caused the fatal wound to Grams' head was fired from close range." The outcome of this fiasco was predictable: Grams became a martyr among young leftists, two GSG-9 men were investigated for murder, and the careers of several high ranking government officials were ruined. Behind the scandal and public outcry were three connected disputes: "how big a threat left-wing terrorism really is; how to bring order to Germany's confusion of anti-terrorist agencies; and whether enough police muscle is being put into combating murderous violence against foreigners" (ibid, The Economist).

One should not imagine, however, a unified front in the German government vis-à-vis terrorism (or the states that sponsor it). Consider the "pro-Iranian policies" of former Chancellor Helmut Kohl--policies that received a stunning reversal on April 10, 1997 when "a German court ruled that the leaders of Iran plotted to murder four of their Kurdish rivals at a Berlin restaurant in 1992" (The New Republic, 1997, p.7). The ruling was regarded as an assertion of independence for German judges and prosecutors, unafraid to oppose official government policy. Again, "Only months after the Kurds were gunned down, Kohl's intelligence establishment gave the red carpet treatment to Iranian intelligence chief Ali Fallahian, the man the court has now fingered as the architect of the Berlin hit. Unable to sustain the fiction that its 'critical dialogue' with Tehran has moderated the regime, the German government has suspended relations and induced its European Union partners to do the same. The meaning of this gesture is not entirely clear, however...But the German court's ruling, if taken seriously, vindicates America's hard line toward Iran" (ibid). Iran is one of those nations referred to, by President Bush, as part of the "Axis of Evil"--meaning, states that actively support terrorism as a de facto part of foreign policy.

Terrorism in South Korea

Another nation listed in that "Axis" is North Korea--perhaps the most isolated and fiercely guarded garrison state on earth. Little is known about the internal conditions of North Korea because of the brutal and uncompromising brand of communism created by former leader Kim Il Sung. With strong ties to the former Soviet Union and Communist China, this nation has been hell-bent on conquering the whole Korean peninsula since the end of World War II. Since it is impossible to appreciate the terrorist threat in South Korea without understanding its mortal enemy north of the 38th parallel, we must digress for a moment and consider the importance of the Korean War, which commenced on June 26, 1950.

According to Roberts, "In 1945 Korea had been divided, its industrial north and agricultural south being occupied respectively by Russian and American forces. The problem of reunification was eventually referred to the United Nations which, after efforts to obtain elections for the whole country under its supervision, recognized a government set up in South Korea as the only lawful government of the Republic of Korea. Meanwhile, the Russian zone had also produced a government claiming sovereignty over the whole country" (p.931). After the American and Soviet forces were withdrawn, trouble began. In June 1950 North Korean forces crossed the 38th parallel and began their campaign to wrest the South from the free world. Within 24 hours U.S. President Harry Truman announced that he was sending American land and naval forces to the aid of South Korea. According to Nevins and Commager, "Later that day the UN Security Council called on member nations to repel the Communist aggression. Thereupon, Truman ordered American troops to the battle front. He had no time to lay the matter before Congress, nor was this necessary. The American public saw that the attack on the free world had to be resisted, and the UN sustained" (1981, p.507). The Korean War was thus a truly international affair, with troops from Australia, New Zealand, Netherlands, Canada, France, Turkey, Thailand, the Philippines, and Brazil participating (ibid). But since the greater part of the fighting (and dying) was left to American forces, it was also very much an American war.

At first, UN forces fared badly: "For nearly six weeks the South Korean, American, and other forces were pushed down the peninsula so steadily that observers feared they would be flung into the sea before their lines held. The invaders evinced a fanatical bravery. Many of them had fought in Chinese, Japanese, or Russian ranks during the Second World War; they had excellent Soviet equipment, especially in tanks; they had learned from the Japanese an art of night attack and infiltration which was hard to resist. Above all they had superior numbers" (ibid). Nevertheless, by September 15 UN forces had begun an offensive that drove the North Koreans back even faster than they had approached. Unified Commander General Douglas MacArthur landed his forces to the north at Inchon, cutting off the North Korean supply lines. Again, "Seoul was in UN hands on the afternoon of September 26, and [South Korean] President Rhee was able to re-establish his government in his old capital while South Korean and UN troops pursued the invaders back across the boundary" (ibid p.509). At this point a controversy arose about whether to continue the drive north until the whole peninsula had been liberated; MacArthur believed the North Koreans had to be pushed past the Yalu River (the Manchurian border) to prevent a reinsurgency. By late October UN forces were almost at the Chinese border, and MacArthur audaciously planned to continue into China, with the intent, apparently, of overthrowing Mao Tse Tung! Nevertheless, China sent close to 1,000,000 troops pouring into North Korea upon this provocation and the UN was pushed back to the 38th parallel. Shortly thereafter, an uneasy truce was worked out, and MacArthur was fired by Truman. But the free world paid a terrible cost for the conflict: "The price of this war was proportionately heavier than the First or Second World War. While the UN forces were estimated to have lost well over 400,000 men killed, wounded, and missing...the Reds lost about four times as many--at least 1,500,000. In short, this was one of the bloodiest wars in history" (ibid p.512).

The point of all this is, the truce was not victory and the two Koreas have remained technically at war for over 50 years. Moreover, the fanatical resolve of North Korea to conquer the South has never changed--only the presence of U.S. troops along the 38th parallel stand in their way. Sontag (1977, pp.74-75) describes the atmosphere created by the standoff: "I had spent part of a sabbatical year in Japan and felt I knew something of that country, but I had never been to Korea and had only heard that I would find it different. As my son and I came into the Seoul airport we were aware of one difference: it is a heavily guarded military base. No pictures may be taken. Customs is a long procedure. We were thoroughly searched and frisked. Our copy of the morning Japanese newspaper was taken away. When we stepped out of the airport we knew we were in a country living under a state of military alert." This is strangely reminiscent of post-9/11 America or Europe--a situation the nation of Israel is all too familiar with. Thus, North Korea is virtually a terrorist state--bent on the obliteration of its southern neighbor.

It is thus surprising, though understandable, to discover that South Korea, up to now, has had no specific anti-terrorism law in place. But according to Yoo (2002), "The devastating suicide terrorist attacks on New York and Washington in September heightened the security awareness, not only of government officials, but also of citizens around the world. South Korea was no exception, and government officials have drafted an anti-terrorism bill in response... The government bill was sent to the National Assembly late last year, and is now before the legislature." Predictably, this has raised the concerns of civil libertarians. One problem is the vagueness of statutory language. For example, "Article 2 of the bill says 'any individual or group of persons who take action or express their opinion in pursuit of their own political, religious, ideological or national interests, threatening national security, affecting international relations or causing social instability' is a terrorist" (ibid). Due to the constant threat of invasion from the north, the South Korean government tends to be authoritarian and quick to impose martial law. Violent and illegal student protests are an ongoing feature, and "human rights groups claim protesters could be targeted as terrorists, referring to Article 2, which cites 'arson or bombing.' According to Article 19, leaders of a terrorist group would be subject to 10 years' to life imprisonment or even execution, executive members to more than seven years' imprisonment, and those affiliated with the group to more than two years' imprisonment" (ibid). Although government officials promise to distinguish between genuine terrorists and over-enthusiastic protesters, critics fear that anti-terrorism laws can too easily be subverted for political or other ends. Coincidently, the same criticisms have been made in the United States about the Patriot Act.

Conclusion

The United States, Germany, and South Korea are each uniquely challenged by the threat of terrorism: South Korea, bordered by a nation listed as part of the "Axis of Evil," has lived in a state of perpetual readiness for war since 1953; Germany has been dealing with its own brand of domestic, ideologically motivated terrorism for decades, and it has also been the stage of several international incidents; the United States, a target for many reasons but particularly its support of Israel, has only recently felt the bite of terrorist attack. The real problem, arguably, is political. The tragic loss of innocent life notwithstanding, the fear generated by terrorist attack poses a grave threat to a nation's political stability, and how it chooses to respond to the threat is the crux of the issue. The United States--setting the tone for the rest of the world--has responded to 9/11 by launching its "War on Terror." This may sound like a rousing, wholly appropriate response, but it raises a host of troubling questions. For instance, with whom are we at war? Al Qaeda? The Axis of Evil? Islamic fundamentalism? Under what circumstances can this war be terminated? How will we know when we've "won" or "lost"? President Bush constantly refers to the War on Terror as if he were Roosevelt during World War II.

Many things that are acceptable on grounds of national security are unthinkable when applied domestically--yet this is precisely what is happening. Distinctions between national security and criminal justice systems are beginning to blur (under such legislation as the Patriot Act), with the danger that Gestapo-like national police organizations will begin to emerge. There are currently 600 detainees being held at Guantanamo Bay, Cuba, whom the President has labeled "enemy combatants," who have been held for two years without charges being filed, without access to civilian courts, and until recently without legal representation. Despite our "War," the government refuses to classify these detainees as prisoners of war (because it would then be bound to the rules of the Geneva Conventions--which guarantees due process rights). The ultimate casualty of terrorism, it might be argued, are the civil liberties we sometimes take for granted. The ability to speak, write, assemble, and worship freely may be curtailed (or eliminated altogether) in the government's efforts to achieve safety and security. This is because the threat is so diffuse. There is no clearly defined "enemy", no specific nation with borders drawn on a map, no standing army or navy to engage in conventional warfare. It is not a problem that is solvable by ordinary means--i.e. diplomacy, political maneuvering, military might, economic sanctions. None of the traditional methods will work. And there is nothing, absolutely nothing, in the U.S. Constitution that gives the President authority to declare anyone an "enemy combatant." According to the ACLU's Steve Shapiro, "However tragic September 11th may have been, it did not rewrite the Constitution" (2004).

In reality there cannot be a literal War on Terror because terrorism is a tactic. Behind the tactics are extremists of every stripe, armed with religious teachings that glorify "martyrdom" or political ideologies that place no value on human life. The governments of the United States, Germany, and South Korea will be hard pressed to deal with people of this sort. Any chance at meeting the threat head-on will require correct identification of the "enemy." But how do you combat religious fanaticism? Especially in a nation where religious freedom is constitutionally protected, it will be next to impossible to defeat. But the most disturbing thing, by far, is the realization that the fear of terrorism--which seems to be the driving force behind U.S. foreign and domestic policy nowadays--is more of a threat than anything Osama bin Laden could devise. In that sense, terrorists may have already achieved their objective.

References:


Albertini, Tamara. "The seductiveness of certainty: the destruction of Islam's intellectual legacy by the fundamentalists." Philosophy East and West, Oct 2003 v53 i4 p455(16).

"Bad day at Bad Kleinen: Germany." The Economist (US), July 17, 1993 v328 n7820 p42(2).

Jackson, James O. "Death on track 4." (German government fights the Red Army Faction) Time, August 23, 1993 v142 n8 p44(1).

"Judgment Day." (Iran convicted of terrorism in Germany) The New Republic, May 5, 1997 v216 n18 p7(1).

Laqueur, Walter. "Postmodern terrorism." Foreign Affairs, Sept-Oct 1996 v75 n5 p24(13).

McCollum, Sean. "The Olympics of Terror: at the 1972 Games, Palestinian militants took Israeli athletes hostage, bringing terrorism to the world stage." (times past)New York Times Upfront, Feb 11, 2002 v134 i9 p26(4).

Nevins, Allan and Henry Steele Commager. A Pocket History of the United States. 7th ed. New York: Washington Square, 1981.

O'Meara, Kelly Patricia. "Iraq connections to U.S. extremists: in the global war on terror, law-enforcement officials may need to look in our own backyard for clues about who sent anthrax to Capitol Hill and TV anchormen. (Nation: Domestic Terrorism). Insight on the News, Nov 19, 2001 v17 i43 p15(3).

Roberts, J.M. The Penguin History of the World. London: Penguin Books, 1987.

Shapiro, Steven. "Address to the National Press Club." C-Span, April 13, 2004.

Sontag, Frederick. Sun Myung Moon and the Unification Church. Nashville: Abingdon, 1977.

Yoo, Soh-jung. "South Korea's anti-terrorism bill under attack by civil." Korea Herald, Feb 10, 2002 pNA.


***



Credibility Gap: Unanswered Questions on the Bush Administration's Iraq War Policy


During times of universal deceit, telling the truth becomes a revolutionary act
---George Orwell




Introduction

The time: one year ago, spring of 2003. Like millions of other Americans (and people throughout the world), I find myself mesmerized by televised coverage of the United States' invasion of Iraq--a war ordered by President George W. Bush. I watch with trepidation as U.S. forces cross the Kuwaiti border, expecting at any time to see our troops assailed by deadly, outlawed chemical weapons. Or perhaps biological weapons, such as anthrax. After all, that was the official rationale for going to war: to divest Iraqi President Saddam Hussein of his WMDs--Weapons of Mass Destruction. We had been assured by President Bush and members of his Administration, repeatedly and endlessly during the months leading up to war, that Hussein possessed these weapons, and that they were a direct threat to the United States. Nevertheless, U.S. forces enter Iraq and advance toward Baghdad, meeting relatively light resistance. No mustard gas, no anthrax. Television pundits (especially on the war-mongering Fox News Channel) theorize that Saddam must be saving his deadliest attacks for the defense of Baghdad. When U.S. forces threaten the city, we are told, expect to see chemical or biological weapons. But within days Baghdad is surrounded, Saddam International Airport is captured and renamed "Baghdad International Airport." Still no attack. After a series of covert raids into the Iraqi capital, the full-scale invasion of Baghdad commences, and even though resistance is more heated and American casualties are starting to mount, it is all conventional warfare. Shortly thereafter, Baghdad is under U.S occupation, the regime is overthrown, and Saddam is nowhere to be found. Hussein had, evidently, fled the scene without deploying even one of those dreaded WMDs. I find this incomprehensible: if the Iraqi leader had these weapons, as the Bush Administration insisted he did, why did he not use them to defend his regime? Even in a losing battle, he might have gone out with a flash of terrible glory--taking tens of thousands of Americans with him. At this point I begin to consider the possibility: maybe there were no WMDs after all. And if there weren't, why did we go to war?


Pre-War Statements of the Bush Administration

What follows is a series of statements made by senior officials of the Bush Administration, including President George W. Bush, Secretary of State Colin Powell, and National Security Advisor Condoleezza Rice. As we will discuss presently, each of these statements contains elements that have since been discredited:



"Saddam Hussein has a long history of reckless aggression and terrible crimes. He possesses weapons of terror. He provides funding and training and safe haven to terrorists -- terrorists who would willingly use weapons of mass destruction against America and other peace-loving countries. Saddam Hussein and his weapons are a direct threat to this country, to our people, and to all free people. If the world fails to confront the threat posed by the Iraqi regime, refusing to use force, even as a last resort, free nations would assume immense and unacceptable risks. The attacks of September the 11th, 2001 showed what the enemies of America did with four airplanes. We will not wait to see what terrorists or terrorist states could do with weapons of mass destruction." (5) --George W. Bush

"Instead of a commitment to disarm, Iraq has a high-level political commitment to maintain and conceal its weapons, led by Saddam Hussein and his son Qusay, who controls the Special Security Organization, which runs Iraq's concealment activities. Instead of implementing national initiatives to disarm, Iraq maintains institutions whose sole purpose is to thwart the work of the inspectors. And instead of full cooperation and transparency, Iraq has filed a false declaration to the United Nations that amounts to a 12,200-page lie. For example, the declaration fails to account for or explain Iraq's efforts to get uranium from abroad, its manufacture of specific fuel for ballistic missiles it claims not to have, and the gaps previously identified by the United Nations in Iraq's accounting for more than two tons of the raw materials needed to produce thousands of gallons of anthrax and other biological weapons. Iraq's declaration even resorted to unabashed plagiarism, with lengthy passages of United Nations reports copied word-for-word (or edited to remove any criticism of Iraq) and presented as original text. Far from informing, the declaration is intended to cloud and confuse the true picture of Iraq's arsenal. It is a reflection of the regime's well-earned reputation for dishonesty and constitutes a material breach of United Nations Security Council Resolution 1441, which set up the current inspections program." (2) --Condoleezza Rice

"Iraq and terrorism go back decades. Baghdad trains Palestine Liberation Front members in small arms and explosives. Saddam uses the Arab Liberation Front to funnel money to the families of Palestinian suicide bombers in order to prolong the Intifada. And it's no secret that Saddam's own intelligence service was involved in dozens of attacks or attempted assassinations in the 1990s. But what I want to bring to your attention today is the potentially much more sinister nexus between Iraq and the Al Qaida terrorist network, a nexus that combines classic terrorist organizations and modern methods of murder. Iraq today harbors a deadly terrorist network headed by Abu Musab Al-Zarqawi, an associate and collaborator of Osama bin Laden and his Al Qaida lieutenants. Zarqawi, a Palestinian born in Jordan, fought in the Afghan war more than a decade ago. Returning to Afghanistan in 2000, he oversaw a terrorist training camp. One of his specialties and one of the specialties of this camp is poisons. When our coalition ousted the Taliban, the Zarqaqi network helped establish another poison and explosive training center camp. And this camp is located in northeastern Iraq." (4) --Colin Powell

"Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised. This regime has already used weapons of mass destruction against Iraq's neighbors and against Iraq's people. The regime has a history of reckless aggression in the Middle East. It has a deep hatred of America and our friends. And it has aided, trained and harbored terrorists, including operatives of al Qaeda. The danger is clear: using chemical, biological or, one day, nuclear weapons, obtained with the help of Iraq, the terrorists could fulfill their stated ambitions and kill thousands or hundreds of thousands of innocent people in our country, or any other." (6) --George W. Bush

Some truth in all these claims, some distorted facts, and a host of assertions that have never been substantiated. Taken together, however, they paint a picture of Iraq as some modern day Nazi Germany (in fact, in the days before the war, Hussein was compared to Hitler and the world situation analogous to 1939--on the eve of World War II). For those who don't know history: it took the combined might of the United States and all her allies to defeat the Axis Powers. Compared to that, Saddam Hussein's Iraq was quite a joke. The Soviet Union--that was a threat to the United States. Iraq was no more a danger to us than Cuba or Nicaragua, and this sort of rhetoric, frankly, insults one's intelligence.



The Long Build-up to War

President Bush is, by all accounts, a plain spoken, almost blunt man who eschews redundancy and insists on strict linear logic in his speeches. But according to Fisher (2003, p.389), in justifying the need for war, "His speeches were filled with strained arguments and dramatic claims that could not be substantiated. Presentations were cloudy, repetitive, and lacking in credibility...The administration seemed content to throw anything out to see if it would stick." At the beginning, there seemed to be no rush toward war. On August 21, 2002 the President stated that he was looking at "all options" and that a war plan was "not on [his] desk" (ibid). Nevertheless, five days later Vice President Cheney gave a speech that considered only one option--war: "He warned that Saddam Hussein would 'fairly soon' have nuclear weapons, and that it would be useless to seek a Security Council resolution requiring Iraq to submit to weapons inspectors. Hussein's threat, Cheney said, made preemptive attack against Iraq imperative" (ibid). During this time, not all the President's men were on the same page regarding Iraq policy. In an interview with BBC, given September 1, Colin Powell "recommended that weapons inspectors should return to Iraq as a 'first step' in resolving the dispute with Iraq" (ibid), which implies lack of knowledge about Iraq's armaments. But Cheney had already stated otherwise.

Mr. Bush himself gave conflicting, inconsistent messages concerning Iraq. For example, consider his policy of regime change. On April 4, 2002 he said, "'I made up my mind that Saddam needs to go.... The policy of my Government is that he goes.... [T]he policy of my Government is that Saddam Hussein not be in power'" (qtd. in Fisher). Yet, in his address to the United Nations on September 12,
After cataloguing Saddam Hussein's noncompliance with Security Council resolutions, apparently building a case for regime change and military operations, Bush then laid down five conditions for a peaceful resolution. If Iraq wanted to avoid war, it would have to immediately and unconditionally pledge to remove or destroy all weapons of mass destruction, end all support for terrorism, cease persecution of its civilian population, release or account for all Gulf War personnel, and immediately end all illicit trade outside the oil-for-food program. The underlying message: If Iraq complied with those demands, Saddam Hussein could stay in power (ibid).
Four days after that speech, Iraq agreed to allow U.N. weapons inspectors back into the country. Pentagon spokeswoman Victoria Clarke, instead of praising Iraq's apparent willingness to comply with American demands, stated that inspections would be "difficult if not impossible" to carry out (ibid). According to chief U.N. weapons inspector Hans Blix, "men such as Vice President (Dick) Cheney, Defense Secretary (Donald) Rumsfeld and his deputy (Paul) Wolfowitz said the inspections were at best useless...During a meeting at the White House at the end of October 2002, six months before the beginning of the war, Cheney told us he would not hesitate to discredit the inspections" (The America's Intelligence Wire, 2004, p.NA). Meanwhile, Senator Paul Sarbanes (D-MD) questioned the President's demands: "'Are we prepared to go to war to make sure they comply with U.N. resolutions on illicit trade outside the oil for food program? Will we take military action or go to war in order to make them release or account for all Gulf War personnel whose fate is still unknown? Would we do that?'" (qtd. in Fisher). In other words, the Administration seemed unable (or unwilling) to distinguish between fundamental and peripheral reasons for going to war. Some thought the ambiguity might be a tactical ploy, to keep the enemy off balance. But according to columnist Michael Kinsley, "'the cloud of confusion that surrounds Bush's Iraq policy is not tactical. It's the real thing. And the dissembling is aimed at the American citizenry, not at Saddam Hussein'" (qtd. in Fisher).

The Al Qaeda "Connection"

By far the most plausible rationale for toppling Saddam Hussein would have been some proof that the Iraqi dictator supported terrorists. After all, when the United States overthrew the Taliban nobody batted an eye. The Taliban gave safe haven to Osama bin Laden, shared his brand of radical Islam, and to all intents and purposes turned Afghanistan into a terrorist state. No such claims could be made about Iraq, however. There was no natural allegiance between al Qaeda and Saddam Hussein, whom bin Laden condemned as an "infidel." The only thing they had in common was a mutual hatred of the United States. Nevertheless, the Bush Administration continuously made unsubstantiated claims about an Iraqi-al Qaeda alliance. According to The Nation (2004, p.3), "[Bush] claimed Saddam Hussein was 'dealing' with Al Qaeda; intelligence analysts, members of Congress who have reviewed the prewar intelligence, and even Colin Powell say the intelligence contained no strong evidence of that." Fisher points out, "On 25 September, Bush claimed that Saddam Hussein and al Qaeda 'work in concert.' On the following day, he claimed that the Iraqi regime 'has longstanding and continuing ties to terrorist organizations, and there are [al Qaeda] terrorists inside Iraq.' Ari Fleischer tried to play down Bush's remark, saying he was talking about what he feared could occur." Furthermore, "Allies in Europe, active in investigating al Qaeda and radical Islamic cells, could find no evidence of links between Iraq and al Qaeda. Interviews with top investigative magistrates, prosecutors, police, and intelligence officials could uncover no information to support the claims by the Bush administration. Investigative officials in Spain, France, and Germany, after dismissing a connection between Iraq and al Qaeda, worried that a war against Iraq would increase the terrorist threat rather than diminish it" (ibid). Jeffrey Record (2003) asks,

...what is the connection between Iraq and al Qaeda? President Bush declared in late September 2002 that 'you can't distinguish between al Qaeda and Saddam when you talk about the war on terrorism. They're both equally as bad, and equally as evil, and equally as destructive.' He added that the 'danger is that al Qaeda becomes an extension of Saddam's madness and his hatred and his capacity to extend weapons of mass destruction around the world.' But the Administration has presented no evidence linking Saddam Hussein to 9/11 and no convincing evidence of an operational relationship between Iraq and al Qaeda. Both Saddam Hussein and Osama bin Laden may hate the United States, but the former is a secular dictator on the Stalinist model who has never hesitated to butcher Muslim clerics, whereas the latter is a religious fanatic who regards secular Arab regimes as blasphemous (p.4).

In short, radical Muslims like bin Laden are no more likely to team up with Iraq than the Aryan Nation is with the U.S government. Nominally sharing the same religion does not make for political alliances.

Blaming the Intelligence

It has been more than a year since the Iraq War began and WMDs have yet to be discovered. Some remnants of previous, decades-old weapons programs have been stumbled upon, but so far nothing amounting to the type of "imminent threat" used to justify the invasion. Bush Administration officials have even suggested that Saddam had his WMDs smuggled into another country--Syria perhaps--an explanation that boggles the mind (not the least because so few questioned how ridiculous it would be: instead of attempting to save his regime by deploying what WMDs he did possess, Hussein smuggled them into Syria?) As Saddam was being taken into custody by U.S. forces (after cowering in that fox hole for who knows how long) he must have reassured himself that even though his dictatorship was overthrown and the enemy occupied his country, at least his precious WMDs were safely hidden in the Syrian desert! In the end, however, even the Bush Administration had to admit it was wrong about Iraq's weapons capability. According to David Kay, former U.S. chief weapons inspector, Iraq did not have these weapons and Bush's decision to invade was based on faulty intelligence (Goldstein, 2004, p.4745). Now, in what is being called "Iraqgate," investigations are proceeding on several fronts: "On Capitol Hill, the Senate and House Intelligence committees are deep into investigations of the intelligence on Iraq's alleged weapons of mass destruction and other administration justifications for the war. The House effort is expected to be completed by the end of the year. The first phase of the Senate investigation could be finished by the end of March. But after weeks of internal committee pressure, punctuated by Kay's findings about the lack of weapons, the committee recently expanded its portfolio to look at whether Bush and his top aides exaggerated the threat" (ibid). The former head of UN inspections teams, Hans Blix, even accused the United States and Britain of "creating facts" to justify invasion: "Our inspectors had a fixed phraseology. If something was missing, then the official formulation was `yet to be established.' But the Americans and British persistently read `exists.' So they created facts where there were no facts" (The America's Intelligence Wire, ibid).

The Administration had little choice but to agree to independent investigations. According to The Nation (2004):

One issue is whether the intelligence analysts honestly botched the job and overstated Iraq's WMD holdings. But the other is whether Bush and his underlings dishonestly hyped selective pieces of iffy intelligence in order to persuade (or scare) the public into backing their invasion of Iraq. Bush doesn't need an inquiry to know if that occurred. And the evidence is already clear that on key elements of Bush's case for war, his declarations were untethered from intelligence assessments. He claimed Saddam Hussein was "dealing" with Al Qaeda; intelligence analysts, members of Congress who have reviewed the prewar intelligence and even Colin Powell say the intelligence contained no strong evidence of that. Bush aides--most notably Dick Cheney--said Saddam had revived his nuclear weapons program. The intelligence was lacking on that point too (p.3).

The President, however, refused to back down from his original decision to depose Saddam Hussein--regardless of the reason. According to Hutcheson (2004), in Bush's NBC "Meet the Press" interview the President maintained that even without WMDs, Hussein was a threat, saying, "First of all, I expected to find the weapons ... I expected there to be stockpiles of weapons...I believe it is essential that when we see a threat, we deal with those threats before they become imminent. It's too late if they become imminent. It's too late in this new kind of war, and so that's why I made the decision I made" (p.3919). In other words, the mere fact that Saddam wanted WMDs justified the invasion. To Bush's credit, it must be said that even opposing nations such as France and Germany also believed Hussein had WMDs, and were just as surprised as everyone else to discover they weren't there. Nevertheless, "Bush repeatedly put the war in Iraq in the context of the war on the terrorism, saying that the Sept. 11 attacks showed the risk of underestimating potential enemies. U.S. officials acknowledge that they have not found any evidence linking Iraq to Sept. 11, and there are no known operational links between Saddam and al-Qaeda terrorists. Bush said was not about to take any chance that Saddam would team up with terrorists. 'He had used weapons. He had manufactured weapons. He had funded suicide bombers into Israel. He had terrorist connections. In other words, all of those ingredients said to me: Threat.'" (ibid).

As for the intelligence, there is more than a little that suggests Administration officials, as well as key players in the Defense Department, gathered their evidence selectively--choosing what fit predetermined policy objectives while rejecting everything else. There were even disputes inside the intelligence community. According to Whitelaw et al (2004),

Perhaps the most pivotal document was the National Intelligence Estimate on Iraq's weapons in October 2002. The report, produced in record time, was significantly more conclusive than previous assessments, asserting that Saddam possessed chemical and biological weapons and had probably resumed building nuclear weapons. But the shifts weren't based on new data. "The intelligence community, for the most part, talked about estimates and judgments, rather than solid evidence," says Greg Thielmann, who retired as acting director of the nonproliferation office in the State Department's Intelligence and Research Bureau as the NIE was being drafted. That office and the Energy Department, in fact, vigorously disputed the NIE's conclusion that Iraq had restarted its nuclear program. In all, there were some 40 different caveats and dissents included in the NIE, according to a study by the Carnegie Endowment (p.24).

Here we have at least one faction of the intelligence community saying that "there is no reliable information on whether Iraq is producing or stockpiling chemical weapons" (ibid), while Administration officials claimed the opposite. Again, "Insiders describe many forms of subtle pressure that the administration applied to analysts. Defense Secretary Donald Rumsfeld even created a special Pentagon office to scrutinize raw data to find evidence to boost the case for war" (ibid). All these revelations support the thesis obvious to many (myself included) that the decision to go to war was made first, and justifications for it had to be found later. To understand why this Iraq War was so important to George W. Bush one would have to look inside the President's head; but since we cannot do that, let's briefly consider what has been called the "Bush Doctrine."

Post 9/11--The Bush Doctrine

Although there is some dispute about whether the Bush Doctrine even exists (Administration officials would probably deny it, or call its tenets "part of the War on Terror"), certain identifiable traits have been defined. According to Jervis (2003),

In a sharp break from the President's pre-September 11 views that saw American leadership, and especially its use of force, restricted to defending narrow and traditional vital interests, he has enunciated a far-reaching program that calls for something very much like an empire. The doctrine has four elements: a strong belief in the importance of a state's domestic regime in determining its foreign policy and the related judgment that this is an opportune time to transform international politics; the perception of great threats that can be defeated only by new and vigorous policies, most notably preventive war; a willingness to act unilaterally when necessary; and, as both a cause and a summary of these beliefs, an overriding sense that peace and stability require the United States to assert its primacy in world politics (p.365).

First, the idea that America can, and must, "remake the world" in its image through aggressive democratization (a good euphemism for the Iraq War) is really nothing new. Empires since the dawn of history have tried it, Rome being the best example. But can western-style democracy be forced on unwilling, especially Islamic, states? Jervis explains: "The administration's argument is that strong measures to spread democracy are needed and will be efficacious. Liberating Iraq will not only produce democracy there, but it will also encourage democracy in the rest of the Middle East. There is no incompatibility between Islam or any other culture and democracy; the example of political pluralism in one country will be emulated" (ibid). In other words, they'll get democracy whether they want it or not. Second, "preventative war," being the most obvious shift in U.S. foreign policy, is something that has long been outlawed by the United Nations--being one of the things that triggered the bloody First World War. During the Cold War America relied on strong defense capability and "deterrence" (e.g. Mutually Assured Destruction or MAD), but now "[b]ecause even defense may not be possible against terrorists or rogues, the United States must be ready to wage preventive wars and to act 'against ... emerging threats before they are fully formed,' as Bush puts it" (ibid). The invasion of Iraq was framed in precisely these terms. Third, a new unilateralism has emerged from post 9/11--evidenced by the President's stubborn refusal to wait for the UN to deal with Iraq, the dismissal of weapons inspections (which, in retrospect, appeared to have been working quite well), and the gathering of the "coalition of the willing"--i.e. any nation willing to support U.S. policies. Again, "The perceived need for preventive wars is linked to the fundamental unilateralism of the Bush doctrine, since it is hard to get a consensus for such strong actions and other states have every reason to let the dominant power carry the full burden...In stressing that the United States is building coalitions in the plural rather than an alliance (the mission determines the coalition, in Rumsfeld's phrase), American leaders have made it clear that they will forego the participation of any particular country rather than compromise" (ibid). Finally, the need to stress American primacy in shaping world politics may be the last nail in the coffin of our traditional isolationism. Terrorism has apparently convinced this president that isolationist policies are folly--that they invite attack. As Jervis puts it, "In the Bush doctrine, there are no universal norms or rules governing all states. On the contrary, order can be maintained only if the dominant power behaves quite differently from the others. Thus the administration is not worried that its preventive war doctrine or attacking Iraq without Security Council endorsement will set a precedent for others because the dictates do not bind the United States...American security, world stability, and the spread of liberalism require the United States to act in ways others cannot and must not. This is not a double standard, but is what world order requires" (ibid).

The arrogance and hypocrisy inherent in the Bush Doctrine are easy criticisms, but they ignore the basic question: Is the United States fundamentally threatened by international terrorism? If the answer is "yes," then the Bush Doctrine makes sense; if "no," then it is an egregious abuse of Executive power, and "a policy that is likely to bring grief to the world and the United States. The United States may be only the latest in a long line of countries that is unable to place sensible limits on its fears and aspirations" (ibid). I keep coming back to the example of the Roman Empire, which, if anything, surpassed the United States in terms of its sheer domination of the known world. In my study of Roman history it seemed clear that Rome did not originally set out to build an empire or conquer the world; but for the sake of "security" it kept invading further and further territories (preventative war?). This both whetted the Roman's taste for conquest and necessitated further military adventurism. The United States, arguably, finds itself in similar straits today. According to Record,

The Bush Doctrine has sparked great controversy at home and abroad. Some critics see it as further testimony to American unilateralism and arrogance...Others regard it as a reckless setting of a dangerous precedent that other states will exploit to mask aggression. Still others see the doctrine as simply a construct to justify an attack on Iraq. Proponents of the Bush Doctrine contend that a threat revolution is under way which requires new approaches to using force. The 9/11 tragedy, they argue, was a warning of worse--much worse--things to come if the United States remains in the reactive posture it assumed during the Cold War. The stakes, they claim, are as high as they were during the Cold War, but we are now dealing with enemies who do not care whether they live or die (ibid).

Although the need to combat terrorism, by whatever means, cannot be denied, translating that need into the driving force behind all foreign policy is problematic at best. That's what the Bush Doctrine amounts to, and the most visible result is the increasingly controversial War in Iraq. And while I do not regard the Doctrine as "simply a construct to justify an attack on Iraq," it was easy, in fact too easy, to make the hangover situation in Iraq--a longstanding foreign policy headache--fit into the Doctrine's dictates. The disingenuous tone of the President's later rhetoric outlining the necessity of war in Iraq stems, in my estimation, from an uncomfortable and artificial attempt to make the "facts fit the policy" rather than vice versa--which is the traditional method of policy making.

Conclusion

According to Gutman and Thompson (1997), "Political deception is not always easy to recognize, because it seldom comes in the form of an outright lie. More often, officials give us half-truths, which they hope we will not see are half-lies. Or they offer us silence, which they hope will cause us to ignore inconvenient truths. Sometimes officials provide so much information that the truth is deliberately obscured, lost in a plethora of facts and figures. Thus, the first task in analyzing a case of alleged deception is to decide whether deception actually occurred and precisely in what ways" (1997). From the moment President Bush began building the case for war in Iraq I knew something was amiss--his words (and those of other administration officials) did not have the ring of truth. That is a visceral, intuitive reaction, but facts and figures are needed to sustain an intellectual argument. For example, Saddam Hussein had been around for years, and for years possessed chemical and biological weapons; no one doubts that he would have eventually developed a nuclear capability if left unmolested. But he did not become a "threat" until after 9/11. This, of course, raises questions about Hussein's connection to al Qaeda, terrorism, and 9/11--a connection that, to this day, has never been demonstrated. Record asks, "Why, reportedly, just one day after 9/11, did Secretary of Defense Rumsfeld and his deputy, Paul Wolfowitz, suggest in a National Security Council meeting that the al Qaeda attacks be used as a pretext for a US attack on Iraq? Many commentators have observed that Saddam Hussein represents unfinished business of the first Bush Administration, and that Saddam Hussein did sponsor a plot to assassinate President George W. Bush's father. But what is the connection between Iraq and al Qaeda?" (ibid). According to my reading (and watching a lot of C-Span), various factions within the Bush Administration had different reasons for wanting to topple Hussein: some saw it as a necessary step in stabilizing that volatile region; some saw it as "unfinished business" from the first Bush Administration; some wanted to ensure a dependable supply of Arab oil. George W. Bush himself (not the most intelligent president to occupy the Oval Office) is, reportedly, a man with no real foreign policy agenda of his own; which is why he surrounds himself with people like Cheney, Rumsfeld, Wolfowitz, and Powell--all of whom have clear agendas. War in Iraq was probably in the cards before 9/11, but became inevitable afterward. It was up to the President to sell it to the American people.

Although the President is "not the most intelligent," neither is he stupid. Thus, I don't think he actually believed in the veracity of his ever-shifting justifications for war, but he obviously believed in the rightness of it (to the extent that he, paternalistically, was willing to indulge in a campaign of deception--all for our own good). I personally believe that the President saw it as his duty to settle an old score on behalf of his father, and that he is motivated, primarily, by religious conviction--the same conviction that fueled the Crusades in medieval Europe. At that time, good Christian knights set forth to drive Islam out of the Holy Land--a task that was never successful. Dawkins points out, "Bush seems sincerely to see the world as a battleground between Good and Evil...It is Us against Them, St. Michael's angels against the forces of Lucifer. We shall smoke out the Amalekites, send a posse after the Midianites, smite them all, and let God deal with their souls. Some of Bush's faithful supporters even welcome war as the necessary prelude to Armageddon and the Rapture" (2003, p.9). And what is the "War on Terror" but a latter-day Crusade--another struggle between Christian and Islamic cultures? That is precisely how Islamic extremists see it: jihad against the Great Satan. Many among the religious right see it that way as well, and President Bush (himself an Evangelical) has their ear. The secular American public, however, has no stomach for that kind of talk. I'm not even sure the Bush Administration made a mistake by invading Iraq--who knows, maybe it needed to be done; but I do object to the deception. Problem is, if President Bush had revealed his real motivation (whatever it is) for insisting upon this war, he would have received much less support than he did. Many Americans wanted revenge for September 11, and this President gave it to them.


References


"AWOL on the truth."(George W. Bush and the Iraq War)The Nation, Feb 23, 2004 v278.

Dawkins, Richard. "On the eve of war." (War in Iraq Op-Ed). Free Inquiry, Summer 2003 v23 i3 p9(3).

Fisher, Louis. "Deciding on war against Iraq: institutional failures." Political Science Quarterly, Fall 2003 v118 i3 p389(23).

"Former U.N. inspector Blix accuses U.S., Britain of `creating facts' before Iraq war." The America's Intelligence Wire, Feb 24, 2004 pNA.

Goldstein, David. "Inquiries into Iraq war, weapons putting pressure on Bush." The America's Intelligence Wire, Feb 24, 2004 pNA.

Gutman, Amy and Dennis Thompson. Ethics & Politics: Cases and Comments. 3rd ed. Chicago: Nelson Hall, 1997.

Hutcheson, Ron. "Bush defends Iraq war, insists Saddam was a threat." Knight Ridder/Tribune News Service, Feb 8, 2004 pK3919.

Jervis, Robert. "Understanding the Bush doctrine." Political Science Quarterly, Fall 2003 v118 i3 p365(25).

Record, Jeffrey. "The Bush Doctrine and war with Iraq." Parameters, Spring 2003 v33 i1 p4(18).

Whitelaw, Kevin; Bruce Auster; David E. Kaplan; Mark Mazzetti. "'We Were All Wrong'." (House and Senate intelligence committees investigate Bush administration's claims that Iraq possessed weapons of mass destruction). U.S. News & World Report, Feb 9, 2004 v136 i5 p24.


http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html (4)

http://www.whitehouse.gov/news/releases/2003/01/20030123-1.html (2)

http://www.whitehouse.gov/news/releases/2003/03/20030306-8.html (5)

http://www.whitehouse.gov/news/releases/2003/03/20030317-7.html (6)


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Sixth Amendment Under Seige: How the U.S. Department of Justice is Undermining Attorney-Client Privilege

Introduction

On October 31, 2001, Attorney General John Ashcroft announced, under "emergency authority," an amendment to existing departmental regulation 28 C.F.R. Parts 500 and 501, which allows, in essence, the U.S. Department of Justice (DOJ) to eavesdrop on confidential attorney-client conversations of persons in federal custody. This measure, taken shortly after the horrendous terrorist attacks of September 11, is part of that new body of law--including such items as the USA Patriot Act--vastly increasing the powers of the federal government, all in the name of "fighting terrorism." Granted, a nation at war cannot afford the same level of civil liberties as a nation at peace--and civil liberties have been curtailed in times past, during moments of national crisis. But this new affront to what is considered a fundamental human right (the right to legal counsel), and also happens to be a Constitutional right (Sixth Amendment), is deeply troubling. It is understood that terrorists have to be stopped; it is understood that the nation itself is at stake. We are, after all, being targeted by an underground militancy that fears no death, and has publicly vowed to destroy the United States. But to what lengths the U.S. government is willing to go in dealing with this threat is an issue that every citizen must be concerned about.

The ACLU Protests

Not surprisingly, the American Civil Liberties Union (ACLU) is among the most vocal opponents of the new regulation. In a document dated December 20, 2001, it said:

It is especially disturbing that these provisions for monitoring confidential attorney-client communications apply not only to convicted prisoners in the custody of the federal Bureau of Prisons (BOP), but to all persons in the custody of the Department of Justice, including pretrial detainees who have not been convicted of crime and are presumed innocent, as well as material witnesses and immigration detainees, who are not accused of any crime...The regulation vests the Attorney General with unlimited and unreviewable discretion to strip any person in federal custody of the right to communicate confidentially with an attorney. In any case in which the Attorney General believes that there is 'reasonable suspicion' that a person in custody 'may' use communications with attorneys or their agents 'to further or facilitate acts of terrorism,' the Justice Department 'shall ... provide appropriate procedures for the monitoring or review of communications between that inmate and attorneys or attorneys' agents who are traditionally covered by the attorney-client privilege.' (1).

What is perhaps most amazing about all this is the fact that it is completely unnecessary. Under existing law, upon a finding of probable cause (that an attorney is facilitating a crime), the DOJ already has the authority to go before a judge, obtain a warrant, and record attorney-client conversations--powers which the Supreme Court has approved (2). Nadine Strossen, president of the ACLU, points out that in such cases "...it is the judge, not the Justice Department, who determines which communications fall under the crime-fraud exemption. The Supreme Court has made clear that the determination whether an attorney-client communication falls within the crime-fraud exception is to be made by courts in an in camera [closed] hearing after the government provides the court with evidence substantiating a good faith basis to believe that the exception applies" (ibid). Considering the fact that the amended version of 28 C.F.R. is redundant--i.e. granting the DOJ a power it already has--the real purpose of the amendment becomes obvious: it enables the Justice Department to circumvent judicial oversight. It may thus be regarded as a constitutional issue--an example of the Executive Branch annexing powers hitherto reserved to the Judicial Branch. And its apparent undermining of the Bill of Rights means this new regulation is fraught with troubling implications. To put it into perspective, then, let's review the appropriate law and ponder for a moment the philosophy behind such provisions.

The Fourth, Fifth, and Sixth Amendments

AMENDMENT IV: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

AMENDMENT V: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation."

AMENDMENT VI: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have Assistance of Counsel for his defense."

These three Amendments restrict the powers of the government in criminal proceedings. Although the definition of the term "unreasonable" (Fourth Amendment) has been debated endlessly, I take it to mean "arbitrary." Thus, citizens cannot be subjected to harassment by the whims or fancies of government officials. The Fifth Amendment's ban on self-incrimination and Sixth Amendment's guarantee of legal counsel tend to work together, ensuring (but not creating) attorney-client privilege. Epstein (2001) points out that although attorney-client privilege is a child of the common law and not the Constitution, "...constitutional principles are implicated in the recognition of the privilege. That is, protection of attorney-client communications also serves to protect Fourth Amendment rights against unreasonable searches and seizures, Fifth Amendment rights against self-incrimination and Sixth Amendment rights to effective assistance of counsel" (p.19). Due to the adversarial nature of our justice system, a defense attorney "stands in the shoes" of the defendant, serving as proxy. Thus, a lawyer can no more be compelled to testify against a client than the client can be compelled to testify against himself. Implicit in the guarantee of "Assistance of Counsel" is that such counsel be effective (ineffective counsel being tantamount to no counsel at all). Attorney-client communication, in an adversarial system, thus demands confidentiality. The only alternative to maintaining privileged communication (even where a defendant admits guilt), is to make the process "non-adversarial"--along the lines of a fact finding committee. But this would require a denial of basic human nature--that is, the primacy of self-interest.

Perhaps the final authority in this matter is the U.S. Supreme Court, which has consistently upheld the sanctity of privileged communications:

The attorney client privilege is the oldest of the privileges for confidential communications known to the common law... Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client. As we stated last Term in Trammel v. United States (1980): "The lawyer client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out." And in Fisher v. United States (1976), we recognized the purpose of the privilege to be "to encourage clients to make full disclosure to their attorneys." This rationale for the privilege has long been recognized by the Court, see Hunt v. Blackburn (1888)... [449 U.S. 383].

What's more, in Swidler & Berlin v. U.S. (1998) the Court held that attorney-client privilege remains in force even after the client's death: "Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether" [524 U.S. 407].

At this point, however, it is important to note that no attorney-client communication is absolutely confidential. Epstein explains, "Although confessions to one's lawyer about past and fully completed crimes are protected by the privilege, the use of attorney-client communications to carry out a future crime or fraud or to continue the cover up of a crime or fraud is not. In theory, the crime/fraud exception is wide enough to drive a truck through. In practice, it has been used to defeat many a claim of privilege" (ibid). Lawyers cannot be de facto accomplices in their client's crimes. How does this relate to changes in 28 C.F.R.? Again, "What the attorney general's proposal does is take this existing precedent a step further by eliminating judicial review. Is this necessary? It is not. Usually when the government argues that the crime/fraud exception defeats the privilege, a judge is asked to conduct an in camera inspection of that claim. The government must make a prima facie showing that the exception applies. It is not sufficient simply to make the claim or to assert that the claim is persuasive enough for the attorney general" (ibid). In fact, much of what the Patriot Act does is aimed at evading the necessity of judicial review, thus enhancing the power of the Executive Branch. This is a dangerous road to take.

Under the Patriot Act

Although the Patriot Act was passed for the express purpose of "fighting terrorism," the potential for its application to non-terrorist related activities is highly problematic. For example, part of the legislation is geared toward recognizing and shutting down money laundering operations that help bankroll terrorist groups. According to Haggman (2002), the USA Patriot Act mandates that businesses--e.g. mutual funds, insurance companies, travel agencies--establish anti-money laundering programs and file "suspicious activity" reports with the government. There is also talk of including lawyers and law firms in this activity (p.A1). This, in effect, would turn lawyers into government informants. Mutual fund, insurance company, and travel agency personnel may have standards of confidentiality, but in no case does such confidentiality rise to the level of attorney-client privilege. Again, "The two most likely authorizing provisions...are the catch-all sections of provisions in the Patriot Act that allow the Treasury Department, on its own, to include new types of businesses under the law's coverage. In addition, the law specifically covers 'persons involved in real estate closings and settlements' -- a group that includes lawyers" (ibid). Whether lawyers can be included in this genera is open to speculation, but "[m]any lawyers are horrified at the prospect of having to report suspicious activity without informing clients" (ibid). Note that existing exceptions to attorney-client privilege require lawyers to report the planning of crimes and such to authorities (in other words, attorneys cannot be co-conspirators in criminal activity), but these new proposals seek to have them report suspicious activity, and mere suspicion is not the same as conspiracy. Furthermore, the U.S. government intends to deputize lawyers, making them agents in the War on Terror:

In 2000, in its annual "National Money Laundering Strategy" report, the Justice and Treasury departments pledged to explore ways to include attorneys: "Because of the role they play as the 'gatekeepers' to the domestic and international financial system, professionals -- especially lawyers, accountants and auditors -- are uniquely positioned either to facilitate money laundering or, on the other hand, to deter and detect crime," the report says. In May, the Financial Action Task Force, an international group that includes the United States, published 40 recommendations to combat money laundering. Among the proposals were suspicious activity reports. The group suggested that lawyers be included in that requirement (ibid).
These heavy handed tactics seem to take no notice of the delicate issues surrounding attorney-client confidentiality and possible conflicts of interest (i.e. representing a client while simultaneously informing on that client to the government).

Further erosion of that confidentiality may now result from the Sarbanes-Oxley Act (passed by Congress in 2002) which "says that attorneys must report security fraud suspicions to a corporation's board of directors" (Keep Attorney-Client Privilege, 2003, p.NA). This comes in the wake of corporate scandals, such as Enron and WorldCom, and the Bush Administration's promise to put white collar criminals behind bars. Even the American Bar Association (ABA) even seems to be going along. At a 2003 meeting in San Francisco, the ABA "narrowly approved a new rule...that allows attorneys to blow the whistle on corporate clients suspected of financial malfeasance. While ABA's rules are not law, they are influential in shaping state rules" (ibid). Three proposals were debated, and according to Hoppin (2003), "The ABA has actually considered two of the three proposals before. They deal very specifically with reporting financial crimes in a corporate environment--including alerting senior management that something within a company is afoot. Similar proposals were defeated last year. But a third, new proposal has stirred controversy. It would allow lawyers to report financial crimes outside of their clients' corporate structure--in essence, to inform on their clients to law enforcement or regulatory bodies" (p.A11). Not all attorneys agree on the issues; there are some who believe they have a legal responsibility to expose criminal activity, while others believe the lawyer must remain silent, no matter what.
Blum (2003) reports that at the annual ABA convention on white-collar crime, held March 6-7, 2003, defense lawyers complained that attorney-client privilege waivers are increasingly being sought, and even demanded by prosecutors at the outset of criminal investigations, before other options have been considered (p.A8). This practice is a threat because "waiving attorney client privilege arms plaintiff lawyers with potentially damaging evidence to use against companies in civil litigation. In response, the white-collar bar is backing a legislative proposal that would allow corporations to turn over privileged material to the Securities and Exchange Commission, without fear that it will wind up being used against them in shareholder suits" (ibid). Although Justice Department officials claim that "a company's willingness to waive attorney-client privilege is simply one of many considerations prosecutors weigh when deciding whether to seek charges against a business organization" (ibid), it is impossible to ignore the coercive effect: i.e. waive your rights or else face criminal prosecution. DOJ protests to the contrary, "many white-collar defense attorneys report having been asked to waive attorney-client privilege in an initial meeting with prosecutors" (ibid). Thus, one option tends to become the preferred option. In all these various ways, then, the once sacrosanct privilege of confidentiality is under siege from all sides, and by extension the Sixth Amendment to the Constitution.

Legal Ethics

The aforementioned threat to the sanctity of attorney-client privilege raises a host of ethical dilemmas--all of them inherent within the justice system itself. For example, what is the moral justification for defending a guilty client? Do such persons even deserve a defense? Famed defense attorney F. Lee Bailey explains it this way:

Even if I know a client is guilty, it's not that simple. The question that laymen put to me most frequently is: "Would you defend a guilty man?" Or, "How can you defend a man you know is guilty?" The questioner is rarely satisfied with my answer. He sees no justification for defending someone who really did it. He can afford to play the moralist, it's not his neck on the guillotine. If lawyers were to shun every case in which they knew the defendant was guilty, there would be no courts. Every person who was arrested and indicted would go right to jail unless his defense counsel judged him innocent (2002, p.226).

There would, in fact, be no justice system. It can be argued, therefore, that the attorney is defending not just a client (who may or may not be guilty), but the justice system itself. Guilty or not, if the government cannot prove its case, the defendant must go free. As it stands, our legal system is adversarial and the Bill of Rights goes to great lengths in making sure everyone is afforded fair treatment. But what if American civilization itself is at stake? Epstein asks, "Should we be prepared to throw these fundamental constitutional rights overboard in the name of self-protection?...Or when faced with those committed to destroying not only our lives but the principles on which our law is based, must we nonetheless afford them also the protections of that law? ...And if we destroy the rule of law ourselves, are we not doing the terrorists' work for them?" (ibid). Indeed, terrorists have succeeded in one very important way: the American government is now reacting from an acute sense of fear and paranoia. It is so acute that our most fundamental concepts--such as attorney-client privilege, are now being assailed.

Do you give constitutional rights--or any type of rights--to an enemy sworn to destroy your very civilization? Lawyers in an adversarial system face a profound conflict of loyalties: to uphold the law on the one hand, and to serve the client's best interest on the other. David Sweet (2003) uses the term "vicarious sacrificial atonement" to describe the lawyer's role:

Although the idea of vicarious sacrificial atonement is generally familiar, its application to the professional realm is unusual and perhaps uncomfortable. Like many religious concepts, it seems ill at ease in the secular world; more than others, it suggests an ancient, bloody, and ignorant history that is easily dismissed. But the religious roots of vicarious sacrificial atonement do not invalidate its application to secular ethical analysis. This is particularly true in the field of American legal ethics, which emerged in the early nineteenth century out of a broader religious revival. That movement sought to infuse civic duties with the sort of religious sanctimony appropriate to a country believed to be God's new promised land. At the same time, the newly independent nation was growing increasingly proud of its legal system, which became a vehicle for the ethical ambitions of religious and political reformers alike. The professional rules that eventually emerged from this environment formed the basis for twentieth-century codes, through which they still exercise influence today (p.219).

The attorney-client relationship, in other words, is analogous to the Christ-sinner relationship, in that the former intercedes for the latter before a judge (God). For the sinner to find salvation, he must repent of his sin, confess to Christ, and beg for mercy. Similarly, a lawyer cannot effectively defend a client who is not forthcoming about the facts of his case; the best hope of legal salvation (acquittal) is confession. If the religious allegory seems a bit far-fetched, that is because "[w]e live in an era in which the Hebraic roots of legal ethics are largely obscured, and it is inappropriate to evaluate the governing rules on religious terms they may no longer recognize." (ibid). To undermine the sanctity of attorney-client privilege, therefore, is to strike a mortal blow to the very heart of justice itself. Just as any man may repent in the spiritual sense, even the worst of criminals can hope to find justice in the legal sense.

Conclusion

A government that will stop at nothing to ensure the "safety and security" of its citizens is a dangerous beast--one that might best be hunted down, tranquilized, and liquidated. Whether our current government has reached this point is debatable, but one thing seems clear: an existing trend toward the increase of State power at the expense of individual liberties has been exacerbated by the wake of 9/11. The Bush Administration declared a "War on Terrorism," but is this a real war? Or is it simply a metaphor? According to Roth (2004):

[The President's] language stretches the meaning of the word 'war.' If Washington means 'war' metaphorically, as when it speaks about a 'war' on drugs, the rhetoric would be uncontroversial, a mere hortatory device intended to rally support for an important cause. Bush, however, seems to think of the war on terrorism quite literally -- as a real war -- and this concept has worrisome implications. The rules that bind governments are much looser during wartime than in times of peace. The Bush administration has used war rhetoric precisely to give itself the extraordinary powers enjoyed by a wartime government to detain or even kill suspects without trial. In the process, the administration may have made it easier for itself to detain or eliminate suspects. But it has also threatened the most basic due process rights (p.2).

Such as attorney-client privilege.

There are other abuses as well: indefinite detentions without charges, access to the courts (denial of habeas corpus), or assistance of counsel; unprecedented search and seizure powers; warrantless wiretapping and electronic surveillance; and so on. Again, "By literalizing its 'war' on terror, the Bush administration has broken down the distinction between what is permissible in times of peace and what can be condoned during a war. In peacetime, governments are bound by strict rules of law enforcement. Police can use lethal force only if necessary to meet an imminent threat of death or serious bodily injury. Once a suspect is detained, he or she must be charged and tried...In times of war, law-enforcement rules are supplemented by a more permissive set of rules: namely, international humanitarian law, which governs conduct during armed conflict. Under such 'war rules,' unlike during peacetime, an enemy combatant can be shot without warning (unless he or she is incapacitated, in custody, or trying to surrender), regardless of any imminent threat. If a combatant is captured, he or she can be held in custody until the end of the conflict, without any trial" (ibid). But will there ever be an end to the War on Terror? Government officials admit "not in our lifetime," but I submit that while terrorism may be controlled, there can be no end to a literal War on Terror. With these bleak prospects in mind, we have to take a hard look at such things as the undermining of attorney-client privilege.

According to the Sarasota Herald Tribune:

Defense lawyers, civil liberty watchdogs and congressional leaders on the right and the left are justifiably upset about the shift [in DOJ rules]...The change is troubling because of the broad powers it gives the government to infringe upon what is considered to be a basic tenet of the American judicial system -- attorney-client privilege...Justice Department officials argue that eavesdropping and monitoring mail may be necessary to prevent people in custody from using their lawyers to pass messages to collaborators outside of jail. A special "taint team" will be set up to review monitoring requests and ensure that confidential information isn't passed to prosecutors. But those safeguards -- not to mention the necessity of imposing such an extraordinary measure -- warrant closer scrutiny than they've received thus far. As Vice President Dick Cheney recently noted, "The mass murder of Americans by terrorists, or the planning thereof, is not just another matter on the criminal docket." But in our eagerness to bring terrorists to justice, we must be careful not to distort our judicial system so that it resembles something that might have been created by our enemies (2001, p.A22).

From all the literature I've read on the broader subject, it seems clear that American civilization itself is in danger of coming to resemble just that--a creation of our enemies--which suggest that the real threat is not from without but from within.

References

Bailey, F. Lee. "The Defense Never Rests." Rpt. in Courts, Judges, & Politics: An Introduction to the Judicial Process. eds. Walter F. Murphy, C. Herman Pritchett, Lee Epstein. Boston: McGraw Hill, 2002. pp.226-230.

Blum, Vanessa. "Two-edged tool: government seeks early waivers of attorney-client privilege, weighs cooperation when charging corporations." Miami Daily Business Review, March 21, 2003 v77 i197 pA8(2).

Epstein, Edna Selan. "Can they listen? Ashcroft and the attorney-client privilege." New Jersey Law Journal, Dec 3, 2001 v166 i10 p19(1).

Haggman, Matthew. "Privilege in peril: South Florida lawyers say anti-terrorism law could open floodgate, forcing them to squeal on clients." Miami Daily Business Review, July 24, 2002 v77 i31 pA1(3).

Hoppin, Jason. "Speaking confidentially: American Bar Association to take new look at waiving attorney-client privilege when crime is at issue." Miami Daily Business Review, August 4, 2003 v78 i38 pA11(3).

"Keep Attorney-Client Privilege as It Is in California." Knight Ridder/Tribune Business News, August 18, 2003 pITEM03230055.

(1) "REGARDING EAVESDROPPING ON CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATIONS." 66 Fed. Reg. 55062 (October 31, 2001) http://archive.aclu.org/congress/l122001a.html 1

Roth, Kenneth. "The Law of War in the War on Terror." Foreign Affairs, Jan-Feb 2004 v83 i1 p2.

(2) Strossen, Nadine. "The Massive, Secretive Detention and Dragnet Questioning of People based on National Origin in the Wake of September 11." http://archive.aclu.org/congress/l120401a.html

Sweet, David. "Sacrifice, atonement, and legal ethics." Yale Law Journal, Oct 2003 v113 i1 p219(42).

Swidler & Berlin v. United States, 524 U.S. 407 (1998).

"The government's listening; Attorney-client privilege should not be a casualty of war on terrorism." Sarasota Herald Tribune, Nov 24, 2001 pA22.

Upjohn Co. v. United States, 449 U.S. 383 (1981).

***


Is the Religious Right Eroding Separation of Church and State?



Introduction

The First Amendment to the U.S. Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Thus begins the vaunted Bill of Rights, designed to protect American citizens from governmental abuses. Although the federal courts, and the Supreme Court in particular, have written extensively and eloquently on the meaning of the First Amendment's "religion clause," I'd like to ponder its meaning for a moment, in plain English. It establishes a "wall" of separation between church and state--a phrase Thomas Jefferson used, but does not appear in the Constitution. In fact, there is no reference to God anywhere in the Constitution--which is a secular, political document. The government that it authorizes is meant to be neutral on matters of faith--it can neither establish a religion nor make an "official" American church. And neither can it interfere with the free exercise of religion in the United States. In other words, regardless of how "heretical" a group like, say, the Mormons may be (according to mainstream Christianity), laws cannot be enacted making Mormonism illegal under our system of government. Similarly, the law cannot be used to harass or persecute non-Christian faiths, such as Judaism or Islam. Thus we have freedom of worship. By the same token, religious faith cannot be compulsory: agnosticism and atheism are protected as well. You cannot have freedom of religion without freedom from religion. Subtract from one side of the equation and the other will be affected.

The Framers of the Constitution recognized that a country as vast and diverse as the United States could never have "religious unity" as it were--i.e. one faith, one creed, one church. The abuses of European history, with its centuries of bloody and appalling religious warfare, with its Grand Inquisitors and torture chambers, with its witch hunts and public executions, resulted from one phenomenon: the unholy marriage of church and state. So the Founding Generation--to their everlasting credit--envisioned a different course for America (the New World had been colonized, after all, by people fleeing those very abuses). In short, religion cannot truly be "free" unless it is divested of coercive power--e.g. the power to tax, to establish sovereign borders, to write laws, to enforce those laws. These powers are reserved for the government.


Religious Encroachment

Considering the above, then, any encroachment of government into religious matters must be cause for alarm; conversely, religious attempts to manipulate governmental machinery also have to be taken seriously. It is understood that all citizens--religious or not--have the right to petition the government, and what James Madison referred to as "factions" will inevitably try to influence the adoption of policies favorable to them. But regardless of who tries to gain an edge in the public forum, the First Amendment bars the way to any kind of theocracy in the United States. The legal barrier, nonetheless, does not prevent religious encroachment. For example, according to the National Catholic Reporter Bishop Raymond Burke has instructed priests of the La Crosse, Wisconsin, diocese to refuse Communion to politicians who support abortion rights or euthanasia. Burke's order states, "[t]hey are not to be admitted to Holy Communion, should they present themselves, until such a time as they publicly renounce their support of these unjust practices" (2004, p.5). The politicians in question were identified as state Senator Julie Lassa and U.S. Representative David R. Obey. In a statement, Obey said, "Bishop Burke has a right to instruct me on matters of faith and morals in my private life...But, when he attempts to use his ecclesiastical position to dictate to American public officials how the power of law should be brought to bear against Americans who do not necessarily share our religious beliefs, on abortion or any other public issue, he crosses the line into unacceptable territory" (ibid). The point is, votes cast by legislators such as Lassa or Obey do not affect only Catholics, but the public at large. Politicians, it might be argued, are elected to represent their constituencies, not to pursue the religious agendas of their respective affiliations.

America: A "Christian" Nation?

Such an assertion, however, is blasphemy to the ears of many on the religious right. At a 1992 meeting of the Republican Governors Association, a reporter asked the governors how their party could balance the interests of Christian conservatives and a broader political base. Mississippi Governor Kirk Fordice responded by declaring America a "Christian nation," saying, "The less we emphasize the Christian religion, the further we fall into the abyss of poor character and chaos in the United States of America" (qtd. in Mooney, 2003, p.34). On CNN's Crossfire, Michael Kinsley asked whether Fordice would call America a "white nation" because whites have a popular majority (ibid). America may indeed be a "Christian nation" in the cultural sense, but one gets the feeling that religious conservatives are pushing for that appellation in the legal sense as well.

Such is the impetus behind televangelist Reverend D. James Kennedy's "Reclaiming America for Christ" campaign. Olson (2004, p.8) describes a campaign event, staged at the Coral Ridge Presbyterian Church in Fort Lauderdale, Florida:

In a ceremony that subtly blended religious and patriotic rhetoric, six young men clad in dark-green military uniforms, carrying flags and faux carbines, marched reverentially up the center aisle of a sanctuary decked out in red, white and blue bunting. Two theater-size video screens flashed a recurring montage of a rural, steepled church, the Statue of Liberty and the U.S. Capitol. The roughly 500 men and women rose to their feet from the pews and pledged allegiance to the American flag and then to the Christian flag. A robust-voiced woman belted out the national anthem, and the recorded strains of "God Bless America" wafted in the air as the color guard marched out...Supporters of the movement have never seemed more hopeful of realizing its goal, which is nothing short of establishing a Christian theocracy in the nation's courts, schools, state legislatures, Congress and the White House.

The goal of establishing a theocracy, no doubt, would be met with official denials. But that leaves unanswered the question: What is the goal? A theocracy in all but name? Again, "For the faithful, America was founded as a Christian nation, so their fundamentalist brand of that religion must be the mortar that binds the U.S. Constitution...Kennedy talks fervently about going beyond the destruction of the Berlin Wall to battering down 'the even more diabolical "wall of separation" that has led to increasing secularization, godlessness, immorality and corruption in our country.' American government must operate through the tenets of fundamental Christianity, loyalists to the cause insist" (ibid). That sounds a lot like theocracy to me.

Probably the surest path to this Christian Utopia is the voting booth, where, according to some true believers, one's salvation depends upon whether one votes Republican or Democrat. According to O'Neal Dozier, founder of the Pompano Beach Worldwide Christian Center, "We must teach Christians that they should vote for political candidates that follow the biblical positions on the political issues. The major political issues that you should teach the biblical positions on are abortion, homosexuality, capital punishment, income tax of citizens, affirmative action, right to bear arms and public school prayer" (qtd. in Olson, ibid). Of course, with the possible exception of homosexuality (which the Bible does condemn), there is no actual "biblical position" on any of the other items. For example, what does the Bible have to say specifically about public school prayer? What chapter and what verse? How can scripture possibly have a position on "affirmative action"--which the U.S. Congress authorized through civil rights legislation in the 1960s? As for charges of partisanship, Dozier declares, "We want to be very, very careful as Christians not to 'cancel out our salvation' as we enter into the voting booth. Many Christians are doing that. They're praising God on Sundays, then on election Tuesdays, they are 'canceling out their salvation' because they are siding with the enemy, with the devil" (ibid). In other words, if you vote Democratic on Election Day, your so-called salvation goes down the tubes. If you prefer to see Senator John Kerry in the White House next year rather than George W. Bush, and express that preference in the voting booth, you may wind up suffering in hell for all eternity!

The Holy Grail, however, is the U.S. Supreme Court, whose decisions regarding such things as school prayer and abortion make those on the religious right see red. So unconscionable are the dastardly deeds of the nation's High Court that Christian Broadcasting Network founder Pat Robertson has turned to the Almighty for help in reshaping that Institution. Thus, "Operation Supreme Court Freedom," which is, essentially, an attempt to "induce by mass prayer" the retirement of three Justices: John Paul Stevens, Sandra Day O'Connor, and Ruth Bader Ginsburg (Stearns, 2003, p.5297). The three attracted Robertson's ire by voting to strike down a Texas anti-sodomy law: "'They've entered into the arena on the side of evil, and we pray, oh God, that you might raise a standard against them,' Robertson said, prompting some to wonder whether he had something more permanent than retirement in mind for the justices" (ibid). And if one should think that not even Robertson would be so callous, think again: "In a speech in 1987 in Missouri, he said abortion opponents should 'pray somehow that those gentlemen on the Supreme Court, a couple of them, will either take retirement or be graduated to that great courtroom in the sky.'" (ibid).

God's Own President

But for all the political maneuvering of Pat Robertson and his ilk, the de facto leader of the Religious Right nowadays is President George W. Bush--God's "hand picked" Chief Executive--and the one figure best positioned to translate the evangelical agenda into law. According to Mooney, "Though not originally the favored candidate of the religious right--John Ashcroft was--Bush has played the part well. Virtually his first presidential act was to proclaim a National Day of Prayer and Thanksgiving; soon he appointed Ashcroft to serve as attorney general. Since then the stream of religiosity from the White House has been continuous. With the help of evangelical speechwriter Michael Gerson, Bush lards his speeches with code words directed at Christian conservatives" (ibid). Thus the source of Bush's antiquated rhetoric--referring to terrorists as "evildoers," anti-American nations as the "Axis of Evil," and so on. More importantly, the Administration's policies contribute to the blurring of church-state dividing lines--e.g. faith-based initiatives: in 2002 the Department of Health and Human Services distributed $30 million to various religious and community groups as part of the program. Among the beneficiaries were Pat Robertson's Operation Blessing ($500,000), Bishop Harold Calvin Ray's National Center for Faith-Based Initiative ($700,000), and Chuck Colson's Dare Mighty Things ($2.2 million)(ibid).

The President's re-election campaign--which forthrightly centers upon 9/11 and the "War on Terror"--can almost be seen as a religious crusade. At least it is in the eyes of his evangelical supporters (and probably in his eyes too). Power (2002, p.49) elaborates:

These are good days for Holy Warriors, for this is the age of fundamentalism. Relativism remains a key casualty of September 11. In these queasy times, clinging to certainty and absolutism seems far safer than the messy course of debate and dissent. So in the Islamic world, so in America, where members of the Christian right have come out with a rash of attacks on Islam, calling it 'evil' and branding Muhammad a 'terrorist' and 'demon-possessed pedophile.' With his 'Axis of Evil,' George W. Bush parses the world--'for us or against us,' tidy lines in the sand dividing 'barbarians' from the 'civilized.'

The President, it must be said, took great pains after 9/11 to sing the praises of Islam as a "religion of peace" (ignoring, apparently, the fact that one fork of Islam was directly responsible for the attacks). At a November 13, 2002 meeting with UN Secretary General Kofi Annan, the President said, "Some of the comments that have been uttered about Islam do not reflect the sentiments of my government or the sentiments of most Americans. Islam, as practiced by the vast majority of people, is a peaceful religion, a religion that respects others. Ours is a country based upon tolerance, Mr. Secretary General, and we respect the faith and we welcome people of all faiths in America" (qtd. in The National Catholic Reporter, 2002, p.8). The following day Pat Robertson tried to qualify the President's remarks, saying, "There is no doubt that the religion of Muhammad and those who adhere to it firmly ... is extreme and violent. However, we must distinguish between the origin of the religion and the adherents to it in the United States who indeed are peaceful people. So to say `the religion is peaceful' I don't think is accurate" (ibid). This is one of the few instances where I have to agree with Robertson; however, in fairness, it should be noted that Christianity has its own history of violence to live down. And in the post 9/11 world, a modern day religious war seems to be brewing (if not already begun). Compare the similarity between the rhetoric coming from American Christians and the Islamic world: "Right-wing Christian leaders like Franklin Graham may denounce Islam as a 'wicked religion,' and Muslim fundamentalists may defame Jews, but in fact their visions are far closer than either camp would admit. Their beliefs on the roles of women and religion in public life closely mirror one another. Both share a love affair with the media and a suspicion of pluralism and secular liberalism" (Power, ibid).

Union of Church and State

The solution to secular liberalism? Get control of the State! Islamists--that is, fundamentalists with a political agenda--have one goal in mind: the establishment of Islamic governments, where Muslim clerics, not politicians, hold the reins of power. The religious right's objectives in America may be less pronounced, but what other message can we glean from Christian Coalition (and other groups) activities? Is it an effort simply to influence public policy, or to wrest control of the government from the forces of "secular humanism"? Statements of the religious right made over the years tend to suggest the latter. All this brings up the confusing issue of "religious freedom"--i.e. how may it be defined? Consider the fundamentalists' efforts to adorn public buildings with the Ten Commandments. According to Kaminer (2002, p.9):

The Constitution surely paves the way to ecumenism, the scourge of most sectarians. Invoking the First Amendment, courts have consistently struck down recurrent efforts by local officials to hang copies of the Ten Commandments in public schools and courtrooms. This is because the Decalogue is not a ceremonial, nonsectarian reference to God (which the Constitution has been construed to allow); it is, as the U.S. Supreme Court has observed, a 'sacred text in the Jewish and Christian faiths.' Its adoption by government threatens religious as well as nonreligious minorities.

Attempting to put the Ten Commandments in plain view, in public, government-owned buildings, arguably sends a message: that the United States is "officially" a Christian nation. Those who disagree represent the "forces of evil," taking America down the primrose path. But who is more likely to ensure genuine freedom of worship? Again, "secular civil libertarians are generally considered the enemies of religion because they are hostile to government sponsorship of sectarian religious institutions or beliefs and fearful of religious majoritarianism. But, in fact, they are quite protective of religious liberty: People who consider all religions equally false are more likely to believe that all religions should be equally free than people who distinguish between false faiths and true ones" (ibid). In other words, an "official" Christian religion--recognized as such by the U.S. government--can only distinguish itself by denigrating all other faiths (or those lacking faith) that disagree with it. Placing the coercive power of government on one side, at the expense of the other, is inherently dangerous--not to mention unconstitutional. How would Muslims, Buddhists, agnostics, or atheists fare in a "Christian" America? For that matter, how would Jehovah's Witnesses, Mormons, Seventh Day Adventists, or Christian Scientists fare? The prospects are not very encouraging.

Is there really an intention, on the religious right's part, to dissolve the barrier separating church and state? Consider the rhetoric. At a 2002 Christian Coalition "Road to Victory" (RTV) conference, "Coalition founder Pat Robertson described church-state separation as 'a lie' and 'a distortion foisted on us over the past few years by left-wingers.' Alabama Chief Justice Roy Moore termed separation 'a fable'...But the award for the most vicious attack goes to Joyce Meyer, the TV preacher who cosponsored the Coalition's national meeting. Meyer lambasted the constitutional concept as 'really a deception from Satan.'" (Church & State, 2002, p.16). One cannot help but wonder just what type of theocracy these individuals would like to establish. One also wonders who would have a place in such a society and what would be done with those who didn't fit the "Christian" mold. Again, "...the Coalition and its friends have no use for a fundamental tenet of our nation's form of government and way of life. Separation of church and state has given Americans more religious freedom than any people in the history of the world, and yet the folks at the Coalition don't appreciate it. Indeed, they want to repeal it and bring in some sort of 'Christian' government--with them deciding what constitutes Christian" (ibid). It also suggests the cynical view that religious freedom is fine--so long as it is the right religion. Legitimizing that view requires a bit of historical revisionism, however: "Robertson told the RTV 'Faith and Freedom Gala' that the United States was settled by Christians who claimed the land for Jesus Christ and God Almighty.’It belongs to God and his people,' said the TV preacher" (ibid). Needless to say, some settlers came to America, originally, to escape religious persecution in Europe. And all settlers, even those motivated by lust for gold and conquest, brought their religious agendas with them (Spanish Conquistadors come to mind). But colonization of the New World was not some noble, Christian crusade. This inconvenient fact undercuts the call to "reclaim America" (when there was never a "claim" to begin with), which is why it tends to be ignored. The Church & State editorial continues:

Actually, what is ridiculous--and dangerous--is a movement that regards its fellow Americans as evil if they fail to adopt the fundamentalist religio-political agenda. In a democracy with some 2,000 different faiths and religious traditions, it is a recipe for disaster to define candidates and issues in this narrow-minded way. Compromise and tolerance for other points of view are necessary ingredients in a pluralistic society. Religious certitude is preached by many denominations, and that's to be expected. But when that concept is introduced into government, look out! Just ask the people of Iran and other countries around the world where theocrats rule (ibid).


Conclusion

The religious right, without question, has aligned itself with the Republican Party (as it has simultaneously demonized the Democratic Party), but the extent to which Republicans themselves are willing to go in furthering that aim is debatable. Moreover, President Bush, however much he may be idolized as some latter day Constantine, is no mere puppet. Davis (2003, p.229) points out:

Bush, in my view, is too savvy to be 'controlled' by the Christian Right. His political agenda is his own. One may speculate that crafting his own agenda and coming to the same conclusions as the Christian Right is more dangerous than catering to them strictly for political gain, but clearly his agenda is his own. Is it true, as some of my friends suggest, that Bush shows signs of believing he is called to remake a too-secular America along Christian lines, which violates his constitutional mandate to protect the nation from becoming too closely aligned with any particular faith or from becoming hostile toward any? One of the great benefits of keeping the nation neutral toward all religions is that it preserves the quality and character of citizenship of people of all faiths. No one doubts that America has always been a Christian nation in a cultural sense, but a nation that is 'too-Christian' in a legal sense is a denial of the religious freedom guaranteed equally to all Americans. History has proven that nations that officially identify with one faith eventually sanction the persecution of those of other faiths. The Inquisition, which lasted more than 600 years in Christian Europe, is adequate proof of that.
Guarding against abuses such as the Inquisition was fundamental to the design of American civilization--based on the separation of church and state. But is there no room for God in our national life? The religious right, for whatever reason, equates church/state separation to apostasy--as if the American people have somehow turned away from the Almighty. There has always been "civil religion" in American life, which is non-denominational, non-sectarian, and non-partisan. The Declaration of Independence claims that "inalienable rights" come from the Creator; our national motto, In God We Trust, adorns all U.S. coin and currency; sessions of Congress and other governmental functions begin with the invocation of prayer. But this is not enough for the theocracists. Davis writes, "In the end, there is no way to extract religion from politics, especially presidential politics. The separation of church and state can never be absolute. The legislative and judicial branches, charged with the responsibility of protecting the religious freedom of American citizens in the grind of everyday life, are more obligated to carefully scrutinize out their religious views as they formulate policy and rules. Moreover, they act institutionally more than as individuals, whereas the president performs his duties with a real human face, as one who is not only the symbol of the nation but also the one expected to further the hopes and dreams of the American nation--and the vision of America and the great majority of its citizens is one that deeply relies on the sovereignty and direction of the hand of God" (ibid).

Can morality be legislated--i.e. imposed from without by force of law? There is no question that behavior, to some extent, can be legislated--that is, if you are willing to admit that the punishment of misbehavior through criminal sanctions has some deterrent effect. But the question remains: Is behavior enforced by law the same as morality? Or is morality, in the strictest sense, a voluntary commitment? One further question: Is religion--Christianity in particular--the best arbiter of public morality? No one doubts the right of religious groups to police their own members and handle disputes as they see fit; but should such groups seek political power--meaning the coercive properties of government and law? Why would they seek this power in the first place? Obviously, the American people as a whole are not "moral" enough for their tastes, and the notion of virtue as a voluntary commitment doesn't work. Blame must be fixed, and it is fixed on the government: banning school prayer, legalizing abortion, giving equal rights to minorities--these phenomena prove that the forces of "secular humanism" have taken over and threaten to ruin the nation. The only barrier standing in the way is the U.S. Constitution with its damnable First Amendment (prohibiting religious establishment).

Nevertheless,

Omitting God's name from the Constitution was intentional on the part of the Founding Fathers, not because they did not look to God providentially to direct the nation, but because they believed that the human person is sacred and that each person's religious conscience can be respected only if the state declares itself incompetent regarding religious matters and leaves religion as much as possible to each individual. Moreover, the decision not to formally place the nation under divine authority, but rather in the hands of the American people, was a novel experiment on the part of the Founders, a bold act virtually unheard of in the late eighteenth-century world, but an act nevertheless calculated to place governmental affairs essentially on a secular level rather than a religious level (ibid).

I'm sure the Founding Fathers would agree that the American people should be moral and virtuous--and preferably Christian (George Washington certainly believed that), but they also profoundly distrusted government. Based on the premise "power corrupts," the entire apparatus was carefully designed to prevent too much power getting into the hands of one faction, branch, or man. The government is indeed "incompetent" in regards to religious matters, as well as those of private conscience. But if power really does corrupt, and if absolute power corrupts absolutely, Christianity itself will be the first victim should the religious right achieve their stated purpose.



References

"Bishop denies Communion to politicians who support abortion and euthanasia." National Catholic Reporter, Jan 23, 2004 v40 i12 p5(1).

Davis, Derek H. "Thoughts on the separation of church and state under the administration of President George W. Bush." Journal of Church and State, Spring 2003 v45 i2 p229(7).

Kaminer, Wendy. "The God bullies." (sectarian views of Constitutional protection for freedom of religion) The American Prospect, Nov 18, 2002 v13 i21 p9(1).

Mooney, Chris. "W.'s Christian nation: how Bush promotes religion and erodes the separation of church and state." The American Prospect, June 2003 v14 i6 p34(4).

Olson, Wyatt. "Onward, Christian soldiers: TV preacher D. James Kennedy and his religious right cohorts want to 'reclaim America for Christ'--and the GOP." Church & State, Jan 2004 v57 i1 p8(6).

Power, Carla. "The Age of Fundamentalism." Newsweek International, Dec 9, 2002 p49.


"Robertson calls Muslims `worse than the Nazis'; advocates, President Bush reject anti-Islam remarks." National Catholic Reporter, Nov 29, 2002 v39 i6 p8(1).

Stearns, Matt. "Republicans trying to find balance with outspoken televangelist." Knight Ridder/Tribune News Service, July 25, 2003 pK5297.


"The Christian Coalition: undermining America." Church & State, Nov 2002 v55 i10 p16(1).