• Deep State Tries Again as “Friend of the Court”

    April 23, 2024 // 11 Comments »

    With the Supreme Court set to begin arguments on Donald Trump’s immunity claims April 25, the landmark decision likely to be handed down by the end of June or sooner, the Deep State weighed in. That itself is a scary thing, but even more frightening is this: what if they are right this time?

    Fourteen retired four-star generals, admirals, and other military leaders (including former NSA head Michael Hayden, who certainly knows a thing or two about illegal orders) filed an amici brief with the Supreme Court, arguing against former President Trump’s claims of immunity in his criminal cases, particularly those dealing with J6.

    Trump argues the charges against him related to J6 should be thrown out because he was acting as president at the time. Prosecutors denounced the idea, with the generals taking a side with their brief. Amicus/Amici curiae is a Latin term translating to “friend of the court.” It refers to a person or organization that is not a party to a case but offers information or expertise to assist the court in making a decision, although they do not have the same legal standing as briefs submitted by the parties directly involved in the case. They can be, as in this case, an argument by a third party to decide the case one way or another. The generals are decidedly against Trump having immunity, as any good Deep Stater would be.

    The generals argue Trump should not be granted immunity by the Court for three reasons: the claimed immunity would undermine the national commitment to civilian control of the military, Trump’s immunity would undermine the military’s adherence to the rule of law and thus its orderly functioning and public trust, and Trump’s claimed immunity, by implicating the peaceful transition of power in particular, threatens national security.

    The arguments for the first point are largely what you’d expect them to be, spraying out everything from George Washington’s address to Youngstown Sheet and Tube, centering on the idea that a president, immune from prosecution for anything he does while in office whether related to his official duties or not (as Trump is asking) could indeed order the military to do anything. One argument you can expect to hear more of is the president could order the armed forces to murder a political opponent live on TV. The president would be untouchable and the soldiers who faced such an order would be flummoxed as the Constitution subjects the armed forces of the United States to both civilian control and the rule of law, with murder being illegal. “Such a President would be able to break faith with the members of the armed forces by placing himself above the very law they are both sworn to uphold,” the brief says. It would allow “the Commander-in-Chief to weaponize the powers of the U.S. military to criminal ends.”

    It is important to step back and understand the president is already considered immune from criminal prosecution while in office, and that he serves under the ultimate check and balance of impeachment. He currently can be prosecuted for acts done while president after he leaves office, the current situation with the two ongoing J6 prosecutions, the Jack Smith one in Washington yet to commence and the Fani Willis one in Georgia sort of lurching underway soon. Trump argues, though the generals disagree, he is immune from prosecution for the things he said on the morning on J6, words that could add up to inciting the mob to attack the Capitol (though note Trump is not charged with incitement, a specific legal term. It can get confusing.)

    Nonetheless, there is little confusion in the generals’ brief. They argue if the “President is absolutely immune from criminal prosecution [this] has the potential to severely undermine the Commander-in-Chief’s legal and moral authority to lead the military forces, as it would signal that they but not he must obey the rule of law. Under this theory, the President could… direct members of the military to execute plainly unlawful orders, placing those in the chain of command in an untenable position and irreparably harming the trust fundamental to civil-military relations.”

    The generals’ second argument is compelling. Service members have a long-standing duty to disobey unlawful orders. This requires service members, who are required to obey all lawful orders, to disregard patently unlawful orders from their superiors and prohibits service members from using such orders as a defense to criminal prosecution. Immunizing the Commander-in-Chief from criminal prosecution would put service members in the impossible position of having to choose between following their Commander-in-Chief or obeying the laws enacted by Congress. Again, see the example of the president ordering the murder of a political opponent, the argumentum ad absurdum of this case.

    The generals cite something almost as clear, the My Lai massacre in Vietnam where the officer in charge on the ground was not successful in using “but I was only following orders” as a defense. Interestingly, Trump’s Supreme Court filing also cites My Lai, drawing a different lesson: the My Lai Massacre serves as evidence the military would resist (someone blew the whistle, albeit after the killings) carrying out the President’s hypothetical order to murder a political rival. That is wrong, say the generals’ in their amici brief: “the very fact that officer in charge on the ground felt emboldened to kill civilians on the basis of ‘superior orders’—in that case, from a captain—demonstrates that our system remains vulnerable to the risk that servicemen or women may commit crimes when ordered to do so. That risk is all the graver if the person giving the orders is the president, particularly one protected by absolute immunity.”

    The generals’ make their argument conclusively, stating “Receiving an unlawful order thus places service members—already pushed to extremes by virtue of their vocation—in a nearly impossible position. On the one hand, disobeying a lawful order is punishable by court-martial and contrary to everything service members have been trained to do. On the other hand, the duty to disobey imposes on them the obligation not to rationalize obedience of an unlawful order simply out of deference to one’s superiors—including the Commander-in-Chief.”

    The third argument in the brief is not as compelling, basically a variation of “Orange Man Bad, Dictator” in that the cases at hand, dealing with J6, concern specifically the peaceful transition of power at the White House. The generals’ argue it is a bad case to set any kind of precedent, and our adversaries will be taking note of what they consider a breakdown of democracy. Constitutional crisis’ are bad for the defense business when the bad guys are watching.

    The case puts a lot on the line. In Washington alone Trump is facing four J6 felony counts accusing him of defrauding the United States. Prosecutors allege he stood at the center of a campaign/conspiracy to block the certification of votes for Joe Biden that day. Granting Trump sweeping immunity would not only end this prosecution and the one in Georgia, it would set a precedent for all future presidents. Besides, Trump already has a decent defense in saying his remarks on the morning of J6 were covered by the First Amendment, with or without immunity. In the end, none of this may matter and the real purpose of the request for immunity may be simply to delay Trump’s trial until after the November election, in which case he wins no matter what the Court says.


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    Posted in Democracy

    The Worst Day of the Afghan War

    September 11, 2021 // 15 Comments »

    The Kabul airport suicide bombing was the largest single-day loss of life for Americans in the Afghan War since 2011. It was a terrible day, but begs the question: what was the worst day of the Afghan war?

    It is hard not to consider the Kabul airport suicide bombing the worst day; 13 Americans and maybe a hundred Afghans dead. How old were the Americans? How many hadn’t even gotten out of diapers when the war started 20 years ago? Did any have parents who also served in Afghanistan? Who were the Afghans?

    All of the dead were so close to safety after who knows what journey to that moment together, a hundred yards across the tarmac and into an airplane out. Good people only die at the last minute in bad movies and sometimes real life. But was it the worst day?

    Shall we count the dead? The worst day for American casualties in Afghanistan was August 6, 2011, when a CH-47 Chinook helicopter was shot down over eastern Afghanistan. Thirty Americans, including 22 SEALs, died.

    There were a lot of other worst days.  On June 28, 2005, 19 Special Operations troops were killed during Operation Red Wings. Three service members died in an ambush and 16 others lost their lives when their helicopter went down in an effort to help.

    — On July 13, 2008 nine Americans and 27 others were wounded in an attack on an American observation post in the Battle of Wanat.

    — On October 3, 2009 eight Americans and four Afghans were killed at Combat Outpost Keating when 200 Taliban fighters attacked the base in eastern Afghanistan.

    — On December 30, 2009 a Jordanian double-agent lured seven CIA operatives to their deaths in a suicide attack at Forward Operating Base Chapman.

    — On September 21, 2010 a Black Hawk helicopter went down in Qalat, killing five soldiers of the 101st Airborne, three Navy SEALs, and one support technician.

    — On April 27, 2011 eight U.S. airmen and one contractor were killed at the Kabul airport. A U.S.-trained ally Afghan Air Corps pilot became angry during an argument and began shooting.

    — The worst day might have been one out of the other hundreds of green-on-blue killings, incidents when an Afghan soldier purposely killed an American ally, the worst kind of proof we had lost and refused to believe that until belief was forced upon us.

    — Or maybe the symbolically worst day was February 8, 2020 when two American soldiers were killed fighting in eastern Afghanistan, the last “combat” deaths. In between those deaths and the deaths by the suicide bomber at Kabul airport, five other Americans died in “non-hostiles,” suicides and accidents. Those were bad days, too.

    — The worst day might have been have been the death of Pat Tilman, the NFL star/poster boy who ceremoniously joined the Army post-9/11 only to die in a volley of friendly fire and Pentagon lies.


    — Or maybe it was after a Taliban IED tore apart State Department officer Anne Smedinghoff while on a propaganda mission. Would either have been proud to give their lives those ways, knowing what we know now?

    Maybe the worst day was when some soldier back home, thinking his war was over, realized he had been conned, it was all a lie, that he never fought to defend America or help the Afghans, and neither did his buddy who died among the poppies outside a village without a name. Maybe it was when he realized his dad had told him the same thing about Vietnam. Or maybe it was when he heard President Biden, mentally stuck in 2006, claim those killed at the Kabul airport were actually “lives given in the service of liberty.”

    Or the worst day might be tonight, when some American veteran tells his wife after a couple too many he is going out to clean his gun in the garage. An average of 20 vets take their own lives each day. On August 16, the day after Kabul fell, the Veterans Administration Crisis Line saw a 12 percent increase in calls.

    Of course the Afghans had some worst days too, though no one really keeps track of those. The Kabul airport suicide attack must rank high. Or it could have been when the U.S. bombed an Afghan hospital. Or maybe when a U.S. drone, our national bird, attacked a wedding party. The Haska Meyna wedding party airstrike killed 47. Another airstrike against a wedding party killed 40 civilians. The Wech Baghtu wedding party attack took 37 lives. An airstrike on the village of Azizabad killed as many as 92 civilians. A U.S. drone strike that destroyed 32 pine nut farmers.

    Because the big days for Afghans were often covered up instead of mourned, no one knows which was the worst day. We hide behind an Orwellian term too macabre for Orwell, collateral damage, to mean violence sudden, sharp, complete, unnecessary, and anonymous. For most Afghans, it defined our war against them.

    Or perhaps judging the worst day for the Afghan side via a simple body count is wrong, there were just so many. But if pain is the metric, then the worst day for Afghans clearly took place inside one of the black sites, where the United States as a national policy tortured people to death.

    We only know one name out of many. Gul Rahman died almost naked, wearing only socks and a diaper, shackled to the floor, in a CIA black site, for freedom, although no one can really explain the connection anymore. He’d been subjected to 48 hours of sleep deprivation, rough treatment, and cold showers, interrogated 18 hours a day. There were 20 other cells nearby for other Afghans. A CIA board recommended disciplinary action for the man held responsible for the death but was overruled.

    Those worst days highlight, if that word is even morally permissible here, the long series of atrocities committed in Afghanistan (and Iraq, and Vietnam, and…) instances where our killing of civilians, whether accidental or purposeful or something smeared in-between, ruined any chance the U.S. could capture those hearts and minds and build a stable society in our image. We could hold ground with tanks but only achieve our broader national security goals via memory. That’s why we lost.


    Because it is so very hard to understand 20 years of tragedy, we focus on something small and symbolically fetishize that, turn it into a token, a symbol of the greater failure that is easier to grasp, easier to acknowledge. Few Americans know much about the horrors inflicted across the decades of war in Vietnam but if they know anything they know My Lai. As documented in Nick Turse’s diligent Kill Anything That Moves, My Lai was indeed a real horror show, but simply best-known because it was the one where lots of photos were taken, not the worst. And that’s before we zoom out to see Vietnam’s CIA assassination program, Phoenix, was just a low-tech version of today’s drone killings.

    So it may be with the suicide bombing at the Kabul airport. Maybe they deserve their place in the coda of the war, a way to summarize things. The pieces are all there: tactical fumbling by Washington, Americans out of place, civilians just trying to escape taking the worst of the violence, an enemy no one saw or knows well disrupting carefully planned out global policy goals, sigh, again.

    There’s also the hero element, the Americans were innocents, killed while trying to help the Afghans (albeit help the Afghans out of a mess created earlier by other Americans.) And of course, following the bombing, a revenge airstrike against ISIS-K leaders, or a random goat farmer or an empty field (we’ll never know and it doesn’t really matter) followed by another which killed ten civilians using a “ginsu knives” bomb which shreds human flesh via six large blades. They may claim a bit of history by being the last Afghan civilians killed by the United States. Have we finally stopped holding that devil’s hand?


    The Kabul airport suicide bombing may be so jarring, so perfectly timed to illuminate 20 years of failure, that it will even be investigated. A blue ribbon committee might tear into what happened, the intelligence failure, some bad decision by a first lieutenant on where to deploy his men. Unlikely, but maybe even a low-level scapegoat will be named and punished. The committee certainly won’t look too far into reports the U.S. knew the attack was coming and let the troops die to appease Britain’s needs.


    We miss the point again. The issue is to ask: why have we not assigned blame and demanded punishment for the leaders who put those 20-year-old soldiers into the impossible situations they faced? Before we throw away the life of another kid or another dozen Afghans, why don’t we demand justice for those in the highest seats of power for creating wars that create such fertile ground for atrocity?


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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy