Chapter 7

As Nazi leaders stood trial in Nuremberg, certain indisputable facts of history complicated the job of defense attorneys. In the face of overwhelming evidence of genocide (and of the defendant's complicity in those crimes), they argued that the Nazis were merely following lawfully given orders, and had abdicated their capacity to make moral decisions to the Führer. This justification, which became known as the Plea of Superior Orders or the Nuremberg Defense, was not overwhelmingly successful at Nuremberg (Article 8 of the Nuremberg Charter is specific in its rejection of this defense), but its use has endured as a readily available exoneration for soldiers whose actions have been established as immoral, if not illegal. The soldiers who invaded Iraq--and those who remain as occupants--were following orders passed down by a legally established chain of command. Yet a certain number of them have abandoned their post, citing an ethical objection to what they see as an immoral occupation (yet importantly not a conscientious objection to military service itself). These deserters have broken the law, but then the same could have been said of a Nazi soldier who refused to operate the gas chambers. The propriety of desertion, rather than a purely legalistic analysis, necessarily entails a question of ethics. If it can be shown that the occupation of Iraq is immoral, it would follow that the burden of retaining one's capacity to act freely requires that we recognize desertion as the only ethically acceptable course of action. "Just following orders" becomes an effective justification only in the rare instance in which refusal is bodily impossible, either due to physical enslavement or the imminent threat of death, or in the case of a decidedly implausible ignorance of the law.

While we will be shortly arguing against a close connection between legalism and morality, it is prudent to explore the legal precedent established in Nuremberg and amended in the ensuing decades. The postwar tribunals were a reaction to the unprovoked aggression of the Nazi war machine first and a rebuke of its crimes against humanity second. According to Gary Jonathan Bass of Princeton University, the Nuremberg trials were an early example of the United States' cynical and often adversarial interaction with international law.^¹In his book Stay the Hand of Vengeance: the Politics of War Crimes Tribunals, he quotes an important passage by chief prosecutor Robert H. Jackson:

The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was a part of a plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities. They were a part of the preparation for war or for making an illegal war in so far as they occurred inside of Germany and that makes them our concern.^²

Jackson's emphasis on the act of unnecessary aggression has pointed ramifications for the invasion of Iraq. Now that it has been established that the war was a gratuitous act of belligerence, the legitimacy of the postwar occupation is thrown into question; any atrocities so facilitated now fall under the jurisdiction of any justly appointed war crimes tribunal. In particular, the Nuremberg precedent is applicable to the war's architects and high-ranking generals, but because the trials fell short of indicting all Nazi underlings (preferring instead to prosecute the principal architects of the Holocaust and other assorted party leaders), there is little cause initially to question their role in the occupation by the Nuremberg standard.

Immediately, though, it becomes clear that as a legal proceeding rather than a moral one, the trials were subject to practical concerns. It would have been entirely infeasible to prosecute every Nazi combatant, yet there is still an undeniable moral accountability: each German soldier knew at the very least that he was fighting in an invasion of a sovereign nation, whether or not he knew anything about the Holocaust specifically (though the effectiveness of Nazi propaganda was cited as a reason for allowing the "just following orders" defense to stand for lower-ranking Nazis--they were, in effect, brainwashed, and thus able to plausibly claim ignorance of international law. Conversely, their superiors, through the doctrine of command responsibility, are held accountable for actions taken by subordinates precisely because they cannot claim such ignorance--though the acquittal of Captain Medina in the aftermath of the My Lai Massacre, expressly because he denied giving direct orders to murder the civilians, calls into question U.S. adherence to the doctrine).^³Jackson said in his opening statement:

The idea that a state, any more than a corporation, commits crimes, is a fiction. Crimes are always committed by persons…It is quite intolerable to let such a legalism become the basis of personal immunity.

The charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of state. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind.^⁴

Jackson's earlier dissenting opinion in Korematsu v. United States (the trial which ultimately affirmed the constitutionality of the 1942 internment of the Issei and Nissei in relocation camps) contains a passage in which he elaborates upon the classic idea of military sovereignty and the responsibility of the judiciary to ensure that even those rules which are seen as the strict jurisdiction of military leaders are not enshrined by courts as peacetime law:

A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.^⁵

Troublingly, though, Jackson also wrote in his opinion that, because civilians who are not privy to the same intelligence as military leaders, the judiciary had no business questioning the constitutionality of the military's decisions in wartime, even those which threaten the civil rights of a racial group; it should thus have refused to hear Fred Korematsu's case.^⁶While he later admitted that this view could set a dangerous precedent ("I have to admit that my view, if followed, would come close to a suspension of the writ of habeas corpus or recognition of a state of martial law at the time and place found proper for military control."^⁷), he maintained that the military was within its rights to corral Japanese Americans in internment camps, so long as it did so under its own jurisdiction and without asking the courts to help enforce its policies (this does not necessarily conflict with Jackson's activities as head of the Nuremberg tribunal, because he was there acting as a military prosecutor--President Truman had assigned him the rank of senior general). What Jackson's arguments leave out, it will become evident, is a caveat that the civilian courts must remain as a check on the military's internal justice system if it should be found to have ceased functioning. The contemporary Supreme Court's more activist interpretation of its role in the cases of foreign nationals held by military authority, while opposed by the executive at every step and piecemeal at best, are necessitated by the military's reluctance to police its own. Indeed, Jackson felt it was the court of public opinion which would more properly reign in the excesses of the executive:

If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.^⁸

It is not known by what authority these contemporaries would enforce their moral reprobation at the practice of indefinite internment and torture, especially if the executive in question is unwilling to listen to any international source of opinion. Given a largely apathetic public and the propagandists' reiteration that history will come to view the War in Iraq as just and expedient (and recall that an overwhelmingly negative international opinion did not stop Israel's bombing and subsequent ground invasion of Gaza in late 2008), it seems that Jackson would have found cause to revise his thinking and support the use of civilian courts in matters of supposed military necessity. At the very least, given his comments at Nuremberg, he would expect soldiers to abstain from the commission of immorality in the name of following narrowly legal,^⁹yet nonetheless unethical, orders.

Even though most Americans now agree that the invasion of Iraq was a mistake and support a timetable for withdrawal,^¹⁰there is a persistent argument among proponents of the occupation that "we broke it, we bought it," and as such it is our moral duty to retain a military presence until the country has sufficiently developed its own security measures. Were this turn of phrase an accurate reflection of our goals in Iraq, the argument might be a useful way to separate the morality of the occupation with that of the initial invasion. Our goals in Iraq, however, are not humanitarian: the pervasive graft and waste in postwar Iraq which hampers the reconstruction was condoned by the Bush administration and its successor, both in deliberate practice (no-bid contracts awarded to politically connected corporations) and in its reflexive tolerance of fraud among contractors (tax havens, contractual misappropriation^¹¹). There is evidence that this policy was adopted early on: Jay Garner, the first head of the C.P.A., advocated handing control over to the Iraqis and setting up elections as soon as possible, as well as paying the disbanded Iraqi army and civil servants. According to a P.B.S. Frontlineinterview, he argued that this would have minimized the insurgency and allowed for a much smoother transition toward independence. Garner was replaced after one month on the job by Paul Bremer, who reversed much of this early policy.^¹²

Stories of the reconstruction effort's lackluster progress in the provision of essential services to Iraqis abound. A recent internal audit found that $7.8 billion of the $8 billion paid out to contractors in Iraq from 2001 to 2006 was vulnerable to fraud--98% of such transactions failed to comply with regulations and billing rules aimed to hold contractors accountable. $1.4 billion of the payouts, according to A.B.C. News, "lacked even minimum supporting documentation, such as a certified voucher or invoice."^¹³In September of 2006, a federal inspector claimed that 13 of 14 building projects undertaken by a contractor corporation (Parsons) fell short of construction standards (the 14^th, a prison complex, was cancelled due to a lack of funds). One of the projects, a $72 million police academy in Baghdad, was built with such poor plumbing that a pipe burst and released urine and feces into classrooms.^¹⁴

According to the S.I.G.I.R. (Special Inspector General for Iraq Reconstruction, a government organization charged with providing oversight of U.S. progress in rebuilding postwar Iraq) report for October 2008, only 20% of families outside of Baghdad province have access to working sewage facilities.^¹⁵On the general subject of water access, especially instructive is the story of FluorAMEC, an American corporation granted a 2004 "cost-plus award-fee indefinite-delivery indefinite-quantity contract" (such cost-plus contracts are especially pernicious, because they provide no restriction on the amount a contractor can charge for services) to provide water services in southern Iraq. Specifically, it was to complete four projects: the Nassriya Water Supply project, the Basrah Sewage project, the Diwaniya and Daghara Water Supply Project, and the Najaf and Kufa Water Supply Project. While the mission was deemed "generally successful," only the first two projects were actually completed, and because FluorAMEC failed to adequately train the Iraqi government workers who assumed control of the facilities (a task which the company was contractually obligated to fulfill), neither the Nassriya nor Basrah plant has run at capacity (worse, the Iraqi government expressed strong doubts as to the sustainability of the plant). The two other projects were terminated at 60% completion due to a lack of funds, after $68.9 million had been spent (money the S.I.G.I.R. audit claims could be wasted if the designs are not used).^¹⁶The two cancelled projects were terminated in July 2005, but "only recently submitted to a termination officer for contract closeout" (as of summer 2008), resulting in a total of $573,605 inappropriately paid after the project was discontinued.^¹⁷

Of particular note is the "Lessons Learned" section of the audit, which blames the budgeting problem which resulted in the cancellation of the Diwaniya and Najaf projects on the budgets estimate's failure to consider "that undertaking reconstruction activities before security conditions have been stabilized will increase the cost of security and decrease the likelihood that cost, schedule, and performance goals will be met."^¹⁸Each subsequent recommendation is as obvious as the first--for example, it is suggested that U.S. agencies should "Take early action to address project transfer and sustainment issues with the host government. Expectations of future project performance could be overstated unless long-term operation and maintenance issues are resolved."^¹⁹Meanwhile, as contractors defraud the U.S. government and accounting organizations timidly suggest that fraud no longer be permitted, Iraqis go without water, sewage management, electricity^²⁰and hospitals.

An instance of fraud which more directly endangers the people of Iraq occurred in 2007, when the Blackwater security firm (recipient of more than $1 billion in contracts) illegally shipped some 900 unlicensed automatic weapons to Iraq in secret. Some number of the guns are believed to have wound up on the black market, and thus in the hands of insurgents. The U.S. government has not filed criminal charges, but intends to levy a several million dollar fine against the corporation.^²¹

The contractor Blackwater has long been the subject of controversy: following a September 2007 incident in which six company guards killed 14 civilians and wounded 20 others in Baghdad, a Congressional committee found that Blackwater is "staffed with reckless, shoot-first guards who were not always sober and did not always stop to see who or what was hit by their bullets."^²²Initially, there was some question as to whether the contractors would ever face trial for their actions in the Baghdad shooting and elsewhere. Technically civilians, these mercenaries exist in a sort of legal limbo, and there is no clear legal basis by which to apply justice. Under Order 17, issued by the former head of the Coalition Provisional Authority, Paul Bremer, shortly before he resigned, contractors are immune from Iraqi Law (shortly after the shootings, the Iraqi government drafted a law to remove this immunity), and only the Military Extraterritorial Jurisdiction Act, amended in 2004 with a provision which allows the government to try civilian contractors, would allow for trials in U.S. civilian courts.^²³In December 2008, one of the shooters pled guilty to manslaughter before a federal grand jury; one month later, the remaining five pled not guilty (their trials are ongoing^²⁴). Daniel Schulman, writing for Mother Jones, characterizes the defendants' demeanor during the shootings:

For sport, they rolled through the streets of Baghdad hurling frozen oranges and water bottles at civilians and nearby vehicles, trying to smash windshields and injure bystanders. Convoying through the city in armored vehicles, the contractors fired their weapons indiscriminately. One member of the Blackwater security team known as Raven 23 regularly bragged about his body count and viewed killing Iraqis as "payback for 9/11."

These allegations are contained in court records…filed on Monday by Justice Department lawyers prosecuting five Blackwater contractors for the September 2007 shooting frenzy in Baghdad's Nisour Square that killed 14 Iraqis and wounded 20 others. Anticipating that lawyers representing the contractors will argue that they were acting in self defense, the prosecution is seeking to introduce evidence that "several of the defendants had harbored a deep hostility toward Iraqi civilians which they demonstrated in words and deeds." The charges are similar to those that recently emerged in civil lawsuits against Blackwater, stemming from the Nisour Square episode.^²⁵

Although the Iraqi government was unable to conduct its own criminal trials for this and other incidents of abuse, it was able to assert its interest when it announced that Blackwater's contract would not be renewed in 2009. Perhaps sensing a change in the winds, the State Department too announced that it would not renew Blackwater's contract for Iraq, but would continue to employ their services elsewhere. However, this did not come to pass: in February, Blackwater (now known as Xe Services L.L.C.) was given a $22.2 million contractual extension through September 2009 for aviation services in Iraq.^²⁶Its diplomatic security and aviation services are expected to remain in Iraq for the indefinite future, though they are now (nominally at least) subject to Iraqi law.

Given that the Iraq War's principal players exist in something of a legal limbo, what can be done? The feasibility of trying recruits, suspected terrorists and contractors in civilian courts has been disputed by Robert Litt (former deputy assistant attorney general in the criminal division of the Justice Department), who argues that a civilian trial would require that witnesses be flown in for cross-examination and that prosecutors offer "a secure chain of evidence." This, he says, is nigh impossible in a war zone, and worse, any evidence gathered by Iraqi investigators would likely be viewed as suspect.^²⁷Such protection (which moves beyond a reasonable shadow of doubt and demands platonic certainty) is not extended equally to suspected terrorists, and this climate of legal ambiguity has had one startling ramification: of the nearly 200,000 U.S. contractors currently in Iraq, only one had been prosecuted for a crime as of late 2008: a Canadian working as an interpreter for the U.S. military was sentenced to five months in prison after stabbing a coworker (the judge dropped the aggravated assault charge and sentenced the man for possessing the weapon without permission and then lying to investigators to cover up his attack).^²⁸

A common thread is emerging here: in each case, the government's eventual reaction to illicit contractor behavior is too little and too late, and the result of lax standards at the onset. For example, in 2006, the U.S. government finally cancelled Bechtel's contract to build a children's hospital in Basra, after the project ran one year behind schedule and in excess of its expected cost by 50%. Bechtel claims that increasingly costly security concerns resulted in the delays and cost overruns, but Iraq's deputy health minister, Ammar al-Saffar, believes the failure was due to the corporation's complicated, bureaucratizing use of subcontractors. He noted that Bechtel unnecessarily complicated construction by subcontracting oversight to a Jordanian company, rather than an Iraqi one.^²⁹Then there is the high-profile case of Custer Battles, a fledgling company which took advantage of the chaos of postwar Iraq to seek out government security contracts in 2003. After failing to provide security for the Baghdad International Airport (the chief of security at this airport called the company "unresponsive, uncooperative, incompetent, deceitful, manipulative and war profiteers"), the Coalition Provisional Authority reassigned Custer Battles to provide security at a nearby checkpoint, a task which also proved to be too daunting (one of their tasks was to provide bomb-sniffing dogs, but only one dog was ever provided, and it refused to do anything but lie down). Robert Isakson, a Custer Battles subcontractor, brought allegations of intent to defraud the U.S. government through fake invoices fabricated in Cayman Island offices, yet the corporation continued to receive millions in federal contracts for another year after his complaint, and even received a recommendation for its work at the airport. Among their financial improprieties: submitting invoices of $10 million for a currency contract with actual expenses of less than $4 million, inflating $74,000 in electricity costs to $400,000, and reselling trucks bought locally for $228,000 for an invoiced cost of $800,000 (several of the trucks supplied by the company didn't run, and were towed to the camp which had requested them). The company's owners, Mike Battles and Scott Custer, are currently under investigation. The fact that U.S. officials have lost a total of $8.8 billion in contractor payments (some of the money is simply lost, other portions were paid without collecting invoice receipts) is less surprising in light of the total lack of oversight in postwar Iraq.^³⁰

Bureaucracy and a lack of oversight plague Iraq's healthcare system as well. An Iraqi surgeon named Jamal Taha alleges that the dismal state of Iraq's medical infrastructure (worse, he notes, than it was during the period of sanctions following the Gulf War^³¹) is due in large part to the convoluted budgeting process he must navigate:

Citing an example of this bureaucracy, Taha explains that at the end of every year he submits to the hospital's administrators a detailed list of medications and supplies that he predicts will be needed in the coming year.

That list then has to go through a 25-step approval process in which committees from the health ministry discuss needs, debate requirements, tender bids, review offers from contractors and make their own additions and subtractions.

"That process can take up to several years," Taha said. "Thus, when I submitted my list of needs for 2008 I knew full well that I probably wouldn't see it approved until at least 2010."^³²

Even non-governmental organizations have complained about the unique difficulties presented by the occupation. A December 2006 Associated Press article quotes the vice-president of the Iraqi Red Crescent (an international humanitarian society which is comparable to, and works with, the Red Cross), Dr. Jamal Al-Karbouli, who alleges that the U.S. forces are a greater threat to their work than the insurgents: "The main problem we are facing is the American forces more than the other forces." Indeed, the U.S. military has repeatedly attacked the organization's offices in Baghdad, Anbar and Najaf provinces, looking for information about insurgents. The problem, Al-Karbouli says, lies with the organization's insignia: a Muslim crescent.^³³This incident calls to mind the earlier U.S. attacks on Al Jazeera offices after the network reported on U.S. atrocities in Fallujah (the city was essentially leveled--U.S. forces prohibited males from fleeing the bombing, cut off electricity and water power, and used the controversial white phosphorus as a weapon, although it initially denied having done so. U.S. officials were displeased with Al Jazeera's accurate portrayal of the events^³⁴), as well as the U.S. detention of Al Jazeera cameraman Sami al-Hajj for seven years. Al-Hajj was held at the Guantánamo base, where he was beaten and sexually assaulted by guards ("rats were treated more humanely," he said). He carried out a hunger strike in early 2007, which lasted until his release to Sudan in May of the following year. In spite of frail health (he was in such poor shape that his brother did not recognize him when they met in Sudan), he continues to campaign for the release of the 240 prisoners still being forced to endure the horrific conditions at the base (conditions which, according to reports, actually worsened following President Obama's promise to shut the facility down; the new President's subsequent refusal to allow independent human rights groups and U.N. investigators access to Guantánamofor the purpose of inspecting conditions there indicates that such reports are, if anything, likely understated).^³⁵

There is a sense that all Iraqi organizations are valid targets, regardless of their actual aim and function; that this prejudice is easily remedied by a moment's research is further evidence that the occupation cannot be viewed as a penitent remuneration to the Iraqi people (who are instead viewed as dangerous subjects, a consequence of the official Pentagon policy under Rumsfeld which empowered the military, through special units such as Task Force 121, to kill with impunity any Iraqi thought to be associated with the insurgency). Seymour Hersh quotes an American advisor in Baghdad: "The only way we can win is to go unconventional. We're going to have to play their game. Guerrilla versus guerrilla. Terrorism versus terrorism. We've got to scare the Iraqis into submission."^³⁶If we are occupying their country on the Iraqis' behalf, then why does the U.S. need to scare them into submission?

The sense that Iraqis are ungrateful and untrustworthy is a paternalistic one, engendered as much by the knowledge that many of them are aware of occupation's true goal (and as such are opposed to it) as it is an enduring prejudice toward them. Some of this prejudice is rooted in religion, as evidenced by American troops' use of the slur "Hajji" to denigrate Iraqis. Normally an honorific used to describe a Muslim who has completed the Hajj pilgrimage to Mecca, the term "Hajji" has come to be used as a derogatory slang term for Iraqis, similar to "Kraut" and "Gook" in previous wars. Whereas those terms were plays on ethnic traits, though, "Hajji" is a statement about Islam. Other aspects of the prejudice are rooted in ignorance, and the remainder is a result of short-sighted self-interest ("I must abuse these people because the alternative is a loss of my job or worse, and violence is the only thing they understand").

The practice of rewarding lucrative no-bid contracts to connected corporations such as Bechtel and Halliburton^³⁷has resulted in an effective monopoly on various aspects of the Iraq reconstruction project, with all the attendant shortcomings of monopolistic practice. Representative Henry Waxman (D-California) was quoted in a 2003 Christian Science Monitor article with an astute warning: "We're overrelying on large umbrella contracts.... Halliburton has a monopoly on the work in oil, and Bechtel has a monopoly on the reconstruction work. There is no incentive to lower costs."^³⁸The article goes on to highlight another clear instance of collusion:

Recently, a new lobby shop touted its ties to the Bush administration as an asset in helping clients get business in Iraq. New Bridge Strategies, with offices in Washington and Houston, describes itself as "a unique company that was created specifically with the aim of assisting clients to evaluate and take advantage of business opportunities in the Middle East following the conclusion of the US-led war in Iraq." Its principals include Joe Allbaugh, campaign manager for Bush presidential race in 2000.^³⁹

The interconnectedness of such contractors and the Bush administration went beyond the Vice President (who had served as the C.E.O. and chairman of Halliburton for five years). Top officials flow between government and the private sector, ensuring, along with campaign contributions and extensive lobbying, that politically connected firms will receive preferential treatment.^⁴⁰

According to Peter Singer, the ratio of U.S. Military personnel to private contractors has risen from 50 to one in 1991 to 10 to one in 2003, ostensibly with the aim of saving money.^⁴¹No reliable studies have confirmed the cost-effectiveness of private contractors,^⁴²and the purported cost-saving advantages of privatization are doubtlessly mitigated by several factors: the aforementioned no-bid contracts, which eliminate the price-reducing factor of competitive bidding; subcontracting, which according to Singer drives up prices at each level ("And remember, that company is often three, four, five levels of subcontractors down. And each of those layers isn't taking it at a loss or isn't taking it at no cost. They're adding their own operating margin in there."^⁴³); and the high salary that is required to entice workers to a dangerous area, which reduces any savings gained by forgoing the lifelong benefits paid to U.S. soldiers (Blackwater guards can make up to $1,000 a day^⁴⁴). Further mitigating any savings is the fact that private contractors are almost always ex-military or ex-C.I.A., and thus join organizations such as Blackwater pre-trained (and, in many cases, well-connected to the same political entity responsible for doling out contracts). Contractors in Iraq have also been using military clinics, receiving what amounts to $1 million in free health care each month.^⁴⁵Finally, as fully international companies, private contractors hire nationals from at least thirty countries, often using "deception and coercion" to fill recruitment quotas.^⁴⁶

The President of Halliburton/K.B.R., Paul Cerjan, argued that although he had no data to support his contention, contracting must be cheaper because the Department of Defense chose to outsource: "Well, I can't stand here and give you that analysis. I didn't do it. That's a DOD analysis, and they came up with the conclusion it's cheaper to outsource."^⁴⁷Much like the argument that torturing must be effective because the C.I.A. and other organizations still use it, Cerjan's assumption rests on the infallibility of the Department of Defense and the absence of other concerns fueling the decision to privatize. Singer dispels this theory handily, noting the absence of any study proving that privatization has resulted in actual savings. He proposes an alternative explanation of the driving force behind privatization:

It's really been about political cost savings. It's been about avoiding the hard choices that come with deploying military forces. And the way to look at this is the counterfactuals: What would we have done otherwise? We would have either had to expand the regular force--it would have had to either be with regular forces, or it would have had to be with Reserves. That's also politically unpopular, because that's more families that are upset, brunt of the war, etc. Also takes place within a presidential campaign season. Or we would have had to have brought in allies. Well, that's difficult, because you would have had to make political compromises with those allies that we weren't willing to make.

Or you bring in contractors. And by the way, contractors come with the extra positive externality from the perspective of the client here that if contractors are killed, wounded or go missing, they don't go on the public rolls. And so when we talk about the cost, they don't count in the public discussion of it.^⁴⁸

Singer has written extensively of the privatization of military forces in the U.S. In Corporate Warriors: The Rise of the Privatized Military Industry,he traces the history of privatized military firms and explores the factors which lead to what he refers to as the end of "the public monopoly of war" and the onset of global "outsourcing and privatization."^⁴⁹He concludes that military privatization has further removed popular oversight on the apparatus of legitimate state violence: "PMFs allow leaders to short-circuit democracy by turning over important foreign policy tasks to outside, unaccountable companies." Congress has no authority over contracted private entities, and requires notification only in cases where the contract value exceeded $50 million (even then, many disbursements are filed through extraterritorial accounts which are exempt from this condition). Even the Freedom of Information Act cannot help: the State Department is reticent to divulge information about contractor companies "due to the claimed need to protect proprietary information," and the companies themselves claim to require governmental approval for the release of any sensitive information.^⁵⁰Private companies present a rather pressing moral quandary as well: as profit-seeking entities, their ends intersect only occasionally with the ends of their government grantors, who are held to a wider range of criteria. Singer puts it succinctly: "private companies as a rule are more interested in doing well than good."^⁵¹Coupled with the dubiousness of any claims of significant taxpayer savings,^⁵²it is obvious that the privatized military industry is fraught with a great many shortcomings and comparatively few advantages.^⁵³

Iraq's first postwar Minister of Defense, Ali A. Allawi, has written an historical account of the Iraq War and its deliberate mismanagement. In The Occupation of Iraq: Winning the War, Losing the Peace, Allawi asserts the Coalition Provisional Authority pursued a disastrous policy of economic liberalization and privatization which was met with hostility in virtually all sectors of Iraqi society, including business owners and heads of industry who felt that sanctions and war had left them unprepared to deal with foreign competition. Order 39, signed in to law on September 19, 2003, "dealt with the dismantling of nearly all controls over non-foreign oil investments" and "allowed unimpeded access to the Iraqi market by foreign investors."^⁵⁴Programs to benefit Iraq's damaged economy were in general pursued only half-heartedly, in spite of indications otherwise: at the 2003 Madrid Conference, for example, the U.S. pledged $18 billion in donations to the Iraqi government, but C.P.A. mismanagement of the budgeting process bypassed the concerns of the Iraqi government and ensured that little of the money was spent effectively (and the C.P.A.'s official acknowledgement of the legitimacy of Iraq's previous debts, which had been incurred under Saddam Hussein, further strained the economy--though much of the debt was forgiven years later).^⁵⁵The one aspect of the Iraqi economy which was thought to be a sure bet--its oil sector--was also hampered by mismanagement and privatization: "expenditures on the oil sector had little effect on the level of oil production and exports," largely due to the contractor practice of hiring inexperienced and poorly trained guards to protect the facilities. In 2004, Iraq ran an oil deficit of eight million liters, necessitating the importation of oil to make up the difference. Even by the time of the C.P.A.'s dissolution in 2004, oil manufacturing levels were far below those of Iraq under Hussein.^⁵⁶

The CPA had adopted a policy of supporting the involvement of international oil companies in Iraq's oil sector--without actually doing anything about it. Part of the CPA's oil sector thinking, in fact, was to defer expenditures on refineries and the development of new oil fields, so that foreign companies could undertake the necessary investment. At the same time, the Ministry of Oil was dissuaded from undertaking any investments in refinery improvements or new oil field developments so as to keep open the possibility of reordering Iraq's oil sector and opening it up to foreign investment.^⁵⁷

Allawi writes that the economic programs were not the only aspect of Provisional government which led to catastrophic failures in postwar Iraq: the Iraqi military was dissolved outright, leading to some 400,000 dismissals. It was the Sunni Arabs, who would come to compose a majority of the insurgency, whose livelihoods were most damaged by this Order (number 2).^⁵⁸

One way in which contracted corporations may appear to save the Defense Department money is not likely to be trumpeted very loudly by any of them. K.B.R., the top Iraq contractor, was discovered to have been exploiting a tax loophole through the use of a shell company in the Cayman Islands:

More than 21,000 people working for KBR in Iraq - including about 10,500 Americans - are listed as employees of two companies that exist in a computer file on the fourth floor of a building on a palm-studded boulevard here in the Caribbean. Neither company has an office or phone number in the Cayman Islands.

The Defense Department has known since at least 2004 that KBR was avoiding taxes by declaring its American workers as employees of Cayman Islands shell companies, and officials said the move allowed KBR to perform the work more cheaply, saving Defense dollars.^⁵⁹

The rationale of the Defense Department in allowing this fraud betrays a deep misunderstanding of economics: operating through tax havens may allow K.B.R. to pass its own savings on to the government (ostensibly), but as the article indicates, it will cost the government much more in lost tax revenue (a Senate report put the 2008 total lost revenue at roughly $100 billion). A portion of this tax revenue would have gone to pay for non-military entitlement programs such as Medicare and Social Security, so it follows that bypassing these tax contributions would only benefit the Defense Department at the expense of other government functions; it is tantamount to post-budgetary intra-government theft. Yet K.B.R. has not shown that its tax dodging actually benefits the Defense Department, nor, more crucially, that it facilitates an improved reconstruction project in Iraq (even if the use of contractors has saved the Department of Defense money, unless those savings are applied back to ease the suffering in Iraq, there is little to celebrate, and recall that it is K.B.R. which installs and monitors the showers on most U.S. bases in Iraq--showers which have killed at least three soldiers due to faulty wiring^⁶⁰). As Singer writes, "such corruption doesn't just represent lost funds, it represents lost opportunities for what those funds could have been used on to actually support the mission."^⁶¹

Perhaps most damaging to the Iraq-occupation-as-remuneration theory, it was not until 2007 that the U.S. began allowing a substantial number of Iraqi refugees into the country. An August 31, 2007 ABC news article put the total number of Iraqi refugees at a mere 1,300 (most of them had applied prior to the 2003 invasion).^⁶²The numbers increased in the 2008 fiscal year, with 13,823 Iraqis admitted, far more than the 1,608 admitted in 2007.^⁶³Yet this would still place the total far below Sweden, which has accepted some 40,000 Iraqis since 2003.^⁶⁴According to the U.S. state department, the underwhelming numbers are the result of security concerns and extensive background checks.^⁶⁵It may plausibly be argued that the Swedish authorities need not contend with insurgents and other subversives looking for revenge, and so our comparatively lackluster émigré population could have been due to diligent caution on the part of U.S. immigrations officials, and not any overt malice or reckless self-interest. This would only be a partial explanation, though, as no conceivable background check need be so thorough that four years yields only 1,300 immigrants.^⁶⁶If safety concerns were wholly responsible for the low number of Iraqis accepted, then the American government is paranoid about its own security to the point of virulent psychosis;^⁶⁷if there were other, more trivial concerns, then the argument that our mission in Iraq is demonstrably not a humanitarian one remains unchallenged. Were it a humanitarian mission, we would have at the very least accepted scores of female and homosexual Iraqis--the former are commonly victims of rape, the latter of homicide. Neither have legal or social recourse.

Assorted calls for the Iraqi government to begin spending its 2008 $79 billion surplus are similarly troubling. Even Barack Obama, who was then considered a comparative soft-liner on the questions of war (preferring instead to utilize a diplomatic solution where possible), said in his acceptance speech at the Democratic Convention that the surplus is evidence that Iraq can stand on its own two feet (a statement he would later reiterate as President, and one echoed by Vice President Biden): "And today, as my call for a time frame to remove our troops from Iraq has been echoed by the Iraqi government and even the Bush administration, even after we learned that Iraq has a $79-billion surplus while we're wallowing in deficits, John McCain stands alone in his stubborn refusal to end a misguided war."^⁶⁸There seems to be a widely accepted notion that any Iraqi surplus should go toward alleviating the U.S. financial burden in Iraq, rather than toward the fledgling country's own nest egg.^⁶⁹The insinuation that the U.S. has been too generous with Iraq stands at odds with the behavior of U.S. corporations, which from April 2003 to October 2004 collected roughly $25.5 million from the Iraqi government in residual payments stemming from Hussein's invasion of Kuwait. Naomi Klein wrote on subject in 2004:

The fact that Iraqis have been paying reparations to their occupiers is all the more shocking in the context of how little these countries have actually spent on aid in Iraq. Despite the $18.4bn of US tax dollars allocated for Iraq's reconstruction, the Washington Post estimates that only $29m has been spent on water, sanitation, health, roads, bridges, and public safety combined. And in July (the latest figure available), the Department of Defence estimated that only $4m had been spent compensating Iraqis who had been injured, or who lost family members or property as a direct result of the occupation - a fraction of what the US has collected from Iraq in reparations since its occupation began.^⁷⁰

Further, just months after these calls were made, the Iraqi government began experiencing a budgetary crisis caused by falling oil prices and the late 2008 economic recession:

Last summer, with oil prices above $100 a barrel, Iraq was so flush with cash that many in the United States were arguing that a country so rich should be paying for its own reconstruction and possibly even reimbursing American taxpayers.

Six months later, the question is whether a decline in Iraqi government revenues, which depend almost entirely on oil, could threaten the relative security and stability won here at the cost of so much American treasure and life. Indeed, political pressure is rising here, as more Iraqis demand precisely the services, like better electricity, water and education, that could now come more slowly.^⁷¹

In addition, the Iraqi economic downturn has impacted its security forces. The government has begun cutting nearly 100,000 army and police jobs, and can no longer afford to purchase military vehicles such as ships and aircraft (nor pay to keep the existing fleet in working condition). Iraq is thus unlikely to possess a force capable of defending against an outside invasion by the U.S. withdrawal date of 2012.^⁷²And we are to demand recompense from them?

The reconstruction effort suffers greatly as a result of this waste, greed and graft. If the U.S. remained in Iraq for a purely humanitarian reason, we would have made some requisite effort to cut costs by putting the contracts up for bid, thus freeing up more funds to rebuild schools, hospitals, and power plants. Instead, a willful lack of oversight has resulted in post-war chaos, in which Iraq's most vulnerable groups (homosexuals,^⁷³women, and children) have suffered and died in unconscionable number. Because there are better, readily available alternatives to the piecemeal privatized reconstruction project, we demonstrably do not remain for the sake of the Iraqi people. Because the law, such as it is, applies unevenly to suspected terrorists and American contractors (and, as we will see in the following section, American soldiers--insurgents were compared directly with contractors in this section because both are non-military forces), we demonstrably do not remain for the sake of the Iraqi people. Because this moral and legal anarchy has led to rampant violence--committed by both U.S. forces and insurgents--our elected officials' tacit endorsement of their suffering establishes that we do not remain for the sake of the Iraqi people. If our troops actually did remain in Iraq for the sake of the Iraqi people, then they would serve as little more than human shields for the civilian populace, absorbing the bullets and shrapnel of the insurgency in their stead, for this is the only potentially valid role of a peacekeeping force which itself only delays peace (and does so indirectly as well as directly--fewer interactions with American troops correlate to fewer instances of violence across the board, whether sectarian or otherwise. This is a strange coincidence indeed if one believes that the U.S. presence is the thread holding the fragile peace together).

The people of Iraq are at best tertiary concern, placed far behind monetary and other prurient interests; the "we broke it, we bought it" chestnut loses its effectiveness if the damage was inflicted deliberately in order to assert a counterfeit obligation upon a population which no longer wishes for U.S. forces (and monetary interests) to remain.^⁷⁴If we bought Iraq, it has been with the expectation of a return on investment; in keeping with the consumer analogy, this return would be stolen by executives (the war's architects and their benefactors) in the manner of Enron, not distributed to the workers who made figurative--though illicit--investments of tax money and labor. This cliché is doubly disingenuous if the purchase itself was not made by the architects of the war: those who stand to benefit the most from it will never bear any burden, because they have sent young loyalists in their stead and collect from the government regardless of any notions of proportionality. The monetary costs of war (which at nearly $700 billion will have surpassed that of the Vietnam War by the end of 2009) will be bought on margins and paid for by generations to come, for whom the purported benefits--a safer world--will never materialize to an extent which could justify a bloated deficit and the abrogation of law as a check on immorality, let alone the sacrifice of more than a million Iraqis.

News of Iraq War veteran Ehren Watada's desertion has just reached a soldier stationed in Iraq, accompanied by an explanation of Watada's reasoning: he does not wish to be a part of what he considers to be an immoral war. The soldier, whose rank and function are irrelevant, will be the subject of a thought experiment in which he must rationalize his choice to remain in Iraq. Prior to having learned of Watada's desertion, he may plausibly have been ignorant of the alternatives, assuming either that the mission in Iraq was just or that his participation was mitigated by the command structure. He has now been confronted by a moral argument and is thus no longer able to claim ignorance regarding his place in the occupation. He, like many other soldiers, may have thought that the Iraq War was a necessary evil, but if he is capable of reasoning that even good intentions can produce objectionable outcomes, the soldier may come to hold himself accountable for his previous error in judgment.^⁷⁵

Perhaps the most readily available criticism of Watada's principled stand is the argument that he had previously agreed to follow lawfully given orders, and so his refusal to do so could be considered an immoral abrogation of that sworn duty. This argument is a highly legalistic one--because Watada was not technically being ordered to commit a crime, he had no basis for claiming that his orders were in violation of any agreed-upon legal standard, and therefore following such orders would have been moral. While the Iraq invasion was technically legal (though this remains controversial--United Nations Secretary General Kofi Annan said in 2004 that the invasion was illegal and in contravention of the U.N. Charter^⁷⁶), the intersection of legality and morality is an occasional and often fleeting one. It seems at once obvious that legalism is a position with little to recommend it (the argument needn't progress much further than a reminder that at one point in recent history, segregation was legal in the U.S.), but contractual obligation as holy writ is a serviceable and well-worn defense of soldier's actions, and so must be more deeply dissected.

Legality as sole justification is highly vulnerable to sham legal processes, and because such legalism effectively replaces the bible with the Constitution or Uniform Code of Military Justice (or written opinion of Justice Department lawyers) as the primary worshipped text, there is neither internal check pursued nor external check allowed. Convictions secured by the kangaroo courts, which have come to define the Guantánamo Bay detention center, for example, are built upon evidence which would be inadmissible in any other setting (including, in many cases, hearsay and admissions made under the threat of harsh interrogation). The first of such convictions, that of Salim Hamdan, was handed down by the military commission jury on August 6, 2008. Hamdan, who served as Osama bin Laden's driver, was convicted of providing material support for terrorism but was not convicted of the main charge: conspiring with al-Qaeda (perhaps because the presiding judge had ruled that confessions Hamdan had given under duress were inadmissible).^⁷⁷Nevertheless, he faced a five and a half year jail sentence, as well as the possibility of indefinite detainment after the conclusion of that sentence, as an "enemy combatant."^⁷⁸

These military tribunals may be entirely legal, but the morality of their verdicts remains questionable due to the low standard of evidence required--confessions given under the pain of "enhanced interrogation" are admissible in many of these special tribunals (that is, confessions derived by coercion are admissible--those derived by actions classified as torture by the tribunal judge are not, though this line is often blurred). There is, however, nothing inherent to the military justice system, compared to the civilian system, which renders philosophical notions of establishing guilt infeasible. A restrained wartime prisoner is just as neutralized as any other, whether his or her captors are civilian or military. Worse, these "enhanced interrogations" are notoriously unreliable, and given to elicit false confessions. For example, one Guantánamo detainee named Binyam Mohamed had his genitals cut open with a scalpel and was subjected to torture so harsh that a British official placed waterboarding "very far down the list of things they did" while Mohamed was held in Morocco and Afghanistan (via extraordinary rendition).^⁷⁹Mohamed, since released to the United Kingdom, argues that the only confessions he gave, and the only evidence of his involvement with al-Qaeda, were the result of torture.^⁸⁰Mohamed Jawad, one of a number of minors detained in the War on Terror (he was, according to his mother and uncle, 12 years of age at the time of his detainment in 2002, though corroborating birth records do not exist), also maintains his innocence. Indeed, in 2008 his tribunal judge ruled that his confession of having thrown a grenade at a U.S. convoy in Afghanistan was inadmissible because it was the result of beatings at the hands of Afghan authorities (later, in July 2009, a federal judge ruled in opposition to the Obama administration that Jawad should be released by late August for the same reason. Jawad is now suing the United States government for compensation for his suffering).

There is no salient aspect of "unlawful enemy combatant" detainment which would justify holding a prisoner after a jail sentence has been carried out (in fact members of al-Qaeda have previously been held as civilians in the U.S.).^⁸¹Following capture, these prisoners are no longer in a war zone and are thus no longer a direct threat to anyone. In fact, given the dubious circumstances of their capture, they are likely to be less of a threat than stateside inmates.

A newer, more inclusive euphemism than "unlawful enemy combatant" has recently been added to the repertoire of rights-reducing aspersions: "sworn enemies of the United States." The Bush administration was ordered by a federal court on October 7, 2008 to release 17 Chinese Muslim Uighurs from Guantánamo Bay (though this was not the first such order; the Pentagon recommendation goes back to 2003), as they could no longer be considered "enemy combatants" and had been cleared of any wrongdoing. Because a return to China would be too dangerous for these alleged separatists, there was discussion of a possible release of the detainees into the U.S. The decision was protested by the Bush administration, who felt that it would set a dangerous precedent which could result in other such "sworn enemies" leaving the facility and endangering the American people.^⁸²In addition to being uncomfortably Orwellian, the moniker appears to be inaccurate at its base. An October 2008 Foreign Policy article calls into question the notion that even "sworn enemies of the United States" are a real danger to it: of the 500 detainees released from Guantánamo Bay over the preceding three years, only six have subsequently taken up arms against the United States. This is a recidivism rate of only 1.2%, compared to the 60%+ recidivism rate of U.S. prisoners.^⁸³The ease with which such casual categorization^⁸⁴can undermine a detainee's rights is inimical to any close association of legality and morality (this is not to mention the ease with which the geographical location of the prisoner can do so).^⁸⁵

On the other hand, military tribunals have become notoriously lenient toward American soldiers who commit an atrocity on the field of battle. The Haditha killings and subsequent trials, for example, lay bear the fallacy of conflating morality with legality. The killings took place on November 17, 2005, after a roadside bomb detonated and killed Lance Cpl. Miguel Terrazas. Four Marines from his unit then cleared nearby houses, murdering 24 Iraqi civilians. Four officers then helped to cover up the killings. One of the Marines, Lance Cpl. Stephen Tatum, was charged with killing two sisters, ages five and 14. If convicted (of two involuntary manslaughter charges and one aggravated assault charge), he would have faced only 18 months in prison, but he was found not guilty in 2008. Tatum was originally charged with murder, but the charge was reduced to manslaughter on the recommendation of investigating officer Lt. Col. Paul Ware, who argued that another Marine had fired first. In Ware's own words:

"In the mere seconds Lance Corporal Tatum had to make a decision, he acted in accord with training, to engage targets that a fellow Marine was firing at, without time to fully assess the situation and reflect on what Sergeant Wuterich was doing," Ware wrote.

"I believe Tatum's real life experience and training on how to clear a room took over and his body instinctively began firing while his head tried to grasp at what and why he was firing," Ware added.

"By the time he could recognize that he was shooting at children, his body had already acted."^⁸⁶

The charges for Wuterich, though, have also been reduced to manslaughter (and are as of April 2009 being suspended entirely, along with charges against Lt. Col. Jeffrey Chessani, who was charged with failure to investigate the killings, due to the prejudicing of a Marine lawyer involved with the case). Lt. Col. Ware's logic is deeply problematic--taken to its logical conclusion, it would require that all charges against Tatum be dropped entirely, not merely reduced. If he acted within the dictates of his training, then the killing of two young girls would be no different than any other acceptable civilian casualty of war.

Further, there is very little difference between his reaction time and that of the Marine who started shooting. If it is acceptable to begin firing upon seeing one's partner engage a target, for the reason that the second shooter did not have time to assess the possibility of danger, then it follows that the first shooter, similarly constrained by the exigencies of the situation, did nothing wrong in assuming that anything which is potentially threatening is a valid target. The difference is one of milliseconds; if Tatum was right to fire on the young girls because of possible hostility, then so was Wuterich.

If tribunals are hesitant to convict American soldiers, superior officers are doubly reticent in facilitating the application of justice. Testifying before Congress in May, a group of Iraq veterans detailed the corruption of their superior officers. One Marine spoke of his attempt to report an incident in which his fellow soldiers fired off thousands of machine gun rounds and hundreds of grenades in response to four rounds of enemy fire, only to have his report altered by a senior officer. Kristofer Goldsmith, a former Army sergeant, complained of official censorship of the images of war: pictures and video taken by troops must be registered before they are distributed or posted to a website, and are almost always suppressed. This testimony seemed to influence one enlistee at the testimonies: Matthis Chiroux, who was scheduled to ship out to Iraq on June 15 2008, announced his intentions to desert, calling the occupation of Iraq illegal and unconstitutional.^⁸⁷

Even the current Iraqi government, ostensibly the only remaining saving grace to the invasion, has acted in an autocratic and increasingly violent manner. An Economistarticle details the many unfortunate indications that the current government will come to more closely resemble that of the ousted Hussein in the coming months:

Old habits from Saddam Hussein's era are becoming familiar again. Torture is routine in government detention centres. "Things are bad and getting worse, even by regional standards," says Samer Muscati, who works for Human Rights Watch, a New York-based lobby. His outfit reports that, with American oversight gone (albeit that the Americans committed their own shameful abuses in such places as Abu Ghraib prison), Iraqi police and security people are again pulling out fingernails and beating detainees, even those who have already made confessions. A limping former prison inmate tells how he realised, after a bout of torture in a government ministry that lasted for five days, that he had been relatively lucky. When he was reunited with fellow prisoners, he said he saw that many had lost limbs and organs.

The domestic-security apparatus is at its busiest since Saddam was overthrown six years ago, especially in the capital. In July the Baghdad police reimposed a nightly curfew, making it easier for the police, taking orders from politicians, to arrest people disliked by the Shia-led government. In particular, they have been targeting leaders of the Awakening Councils, groups of Sunnis, many of them former insurgents and sympathisers, who have helped the government to drive out or capture Sunni rebels who refused to come onside. Instead of being drawn into the new power set-up, many of them in the past few months have been hauled off to prison. In the most delicate cases, the arrests are being made by an elite unit called the Baghdad Brigade, also known as "the dirty squad", which is said to report to the office of the prime minister, Nuri al-Maliki.^⁸⁸

These torture-derived confessions, the article continues, have been used as a pretext for execution: "In a recent report Amnesty International, a British-based group, says that more than 1,000 Iraqis face execution, often on the basis of confessions, which, it says, are sometimes made under torture."^⁸⁹Though it may or may not remain preferable to Hussein's regime, the Maliki government's actions are a repeat of the earlier C.P.A. mismanagement and will only breed further resentment among its population. Have we been reduced to arguing that the occupation is legitimated by its maintenance of a government which is better by a mere shade than its antecedent, at the cost of one million lives?

Malalai Joya, Afghanistan's youngest Parliamentarian at the time of her suspension in 2007, is an outspoken advocate for women's rights and a fierce critic of the Karzai government. Joya writes in "The Big Lie of Afghanistan" that the current regime, "full of warlords and extremists who are brothers in creed to the Taliban," is not the product of any genuinely democratic process (her prediction, as it happens, would prove correct--the 2009 Afghanistan election was fraught with voter fraud and intimidation):

In the constitution it forbids those guilty of war crimes from running for high office. Yet Karzai has named two notorious warlords, [Mohammad] Fahim and [Karim] Khalili, as his running mates for the upcoming presidential election. Under the shadow of warlordism, corruption and occupation, this vote will have no legitimacy, and once again it seems the real choice will be made behind closed doors in the White House. As we say in Afghanistan, "the same donkey with a new saddle".

So far, Obama has pursued the same policy as Bush in Afghanistan. Sending more troops and expanding the war into Pakistan will only add fuel to the fire. Like many other Afghans, I risked my life during the dark years of Taliban rule to teach at underground schools for girls. Today the situation of women is as bad as ever. Victims of abuse and rape find no justice because the judiciary is dominated by fundamentalists. A growing number of women, seeing no way out of the suffering in their lives, have taken to suicide by self-immolation.^⁹⁰

Joya, who has faced four assassination attempts as a result of her indictments of her Parliamentary colleagues, makes it clear that even the nominally democratic government of Afghanistan is mired in past and present brutality. She argues further that a civil war caused by premature U.S. withdrawal is not a foregone conclusion:

What's more, I don't believe it is inevitable that this bloodshed continues forever. Some say that if foreign troops leave Afghanistan will descend into civil war. But what about the civil war and catastrophe of today? The longer this occupation continues, the worse the civil war will be.

The Afghan people want peace, and history teaches that we always reject occupation and foreign domination. We want a helping hand through international solidarity, but we know that values like human rights must be fought for and won by Afghans themselves.^⁹¹

Her point is a salient one: without the aggravating, polarizing effect of a foreign occupation, Afghans would only be more likely to pursue autonomous change. Indeed, a cursory evaluation of recent Afghan history reveals a tendency toward self-determination repeatedly thwarted by outside intervention. Michael Parenti writes that the regressive Islamists now fought by N.A.T.O. forces in Afghanistan were bolstered by the U.S. for decades, ostensibly in order to combat the Soviet presence there, but in actuality to buttress the increasingly marginalized feudal landlords and fundamentalists at the expense of the secularist, reformist, gender-equalizing Taraki government (the C.I.A. intervened prior to the Soviet "invasion," which was originally requested, repeatedly, by Kabul).

The Soviet intervention was a golden opportunity for the CIA to transform the tribal resistance into a holy war, an Islamic jihad to expel the godless communists from Afghanistan. Over the years the United States and Saudi Arabia expended about $40 billion on the war in Afghanistan. The CIA and its allies recruited, supplied, and trained almost 100,000 radical mujahideen from forty Muslim countries including Pakistan, Saudi Arabia, Iran, Algeria, and Afghanistan itself. Among those who answered the call was Saudi-born millionaire right-winger Osama bin Laden and his cohorts.

After a long and unsuccessful war, the Soviets evacuated the country in February 1989. It is generally thought that the PDP Marxist government collapsed immediately after the Soviet departure. Actually, it retained enough popular support to fight on for another three years, outlasting the Soviet Union itself by a year.

Upon taking over Afghanistan, the mujahideen fell to fighting among themselves. They ravaged the cities, terrorized civilian populations, looted, staged mass executions, closed schools, raped thousands of women and girls, and reduced half of Kabul to rubble. In 2001 Amnesty International reported that the mujahideen used sexual assault as "a method of intimidating vanquished populations and rewarding soldiers.'"^⁹²

It was only the discovery of oil in the region, and the necessity of erecting a pipeline through Afghanistan, which finally mobilized opposition to the Taliban government among U.S. officials. The September 11^thattacks only convinced the American public that regime change was necessary; the government had already made that conclusion:

Interestingly enough, neither the Clinton nor Bush administrations ever placed Afghanistan on the official State Department list of states charged with sponsoring terrorism, despite the acknowledged presence of Osama bin Laden as a guest of the Taliban government. Such a "rogue state" designation would have made it impossible for a US oil or construction company to enter an agreement with Kabul for a pipeline to the Central Asian oil and gas fields.

In sum, well in advance of the 9/11 attacks the US government had made preparations to move against the Taliban and create a compliant regime in Kabul and a direct US military presence in Central Asia. The 9/11 attacks provided the perfect impetus, stampeding US public opinion and reluctant allies into supporting military intervention.^⁹³

The invasion of Afghanistan can thus be seen as an unjust one, in effect as well as justification, as can the occupation, which has also seen its share of American atrocities.

On March 4, 2007, a car bomb injured a Marine in convoy at Jalalabad. In response, several of his comrades opened fire, sustaining the attack for the entire route back to the Marines' base (a six-mile stretch of road). As many as 19 Afghan civilians were killed, and 50 were wounded. Yet the Marines' commanding officers (who did not fire their weapons) will not be charged. According to a May 2008 New York Times article:

A statement released Friday said Lt. Gen. Samuel T. Helland, commander of Marine forces in the Middle East and Afghanistan, had determined that the officers in command and the troops in the convoy "acted appropriately and in accordance with the rules of engagement and tactics, techniques and procedures in place at the time in response to a complex attack."

The Afghanistan Independent Human Rights Commission said the marines had fired wildly and without cause at civilians and vehicles, while lawyers for the officers under scrutiny said they and the men under their command had carried out an appropriate and disciplined response to a dangerous ambush.^⁹⁴

One wonders if the same response from an Afghan bystander would have been similarly tolerated. That it would undoubtedly be considered terrorism gets to the heart of human rights groups' complaints concerning the military's preference for exonerating murderous U.S. soldiers at the expense of the civilians they are ostensibly protecting. Tellingly, the unit responsible for this massacre was subsequently ordered to leave Afghanistan.

The Bagram Collection Point in Afghanistan has become notorious for its brutality. One of the detainees to die at this base, known only as Dilawar, was the victim of the same form of abuse which had killed another detainee (Habibullah) just days prior (they were among the first of at least 100 detainees to be killed in U.S. custody). Dilawar was chained to the ceiling and beaten repeatedly by American troops; he succumbed to this abuse five days after his capture in December 2002. The military initially attributed his death to natural causes, but the coroner's death certificate presented to Dilawar's family reported a homicide, and they pressed for an investigation. Only one of the troops responsible for his mistreatment (Specialist Glendale Walls, who admitted to pushing Dilawar against a wall and failing to stop others from abusing him) served any time in jail--two months, to be precise (two others were convicted, but served no jail time). The deadly abuse of Dilawar, which the coroner found to have produced injury comparable to that which would have been brought about by nothing less than bodily collision with a bus, was recounted in a New York Times article which ends, almost tragicomically, with the following line:

[Staff Sgt. Yonushonis, who originally reported the abuse] also added a detail that had been overlooked in the investigative file. By the time Mr. Dilawar was taken into his final interrogations, he said, "most of us were convinced that the detainee was innocent."^⁹⁵

As it happens, the guerilla fighter who originally offered up Dilawar was himself later detained. He is believed to have been behind several attacks on U.S. bases, and had captured Dilawar and others in a bid to gain the trust of local U.S. commanders.^⁹⁶This method of acquiring detainees is common: just 5% of detainees at the Guantánamo Bay facility were apprehended directly by U.S. forces. The vast majority were turned over by foreign third parties, often for a hefty reward, and without any corroborating investigation on the part of the U.S.^⁹⁷Lawrence B. Wilkerson, former Chief of Staff to Bush-era Secretary of State Colin Powell, spoke out in 2009 about this indiscriminate method of accepting prisoners, which he calls "the mosaic philosophy":

Simply stated, this philosophy held that it did not matter if a detainee were innocent. Indeed, because he lived in Afghanistan and was captured on or near the battle area, he must know something of importance (this general philosophy, in an even cruder form, prevailed in Iraq as well, helping to produce the nightmare at Abu Ghraib). All that was necessary was to extract everything possible from him and others like him, assemble it all in a computer program, and then look for cross-connections and serendipitous incidentals--in short, to have sufficient information about a village, a region, or a group of individuals, that dots could be connected and terrorists or their plots could be identified.^⁹⁸

The mosaic philosophy bears some resemblance to the witch trials of the medieval and colonial eras: U.S. soldiers interrogate as many possibly guilty individuals until one serendipitously offers some useful information and thereby retroactively proves the legitimacy of the process. It presumes that the ends justify the means, or indeed that the means--the routine intimidation, subjugation, and fractionalization of a people through non-targeted abuse and encouragement of community mistrust--are an end which justify themselves. The method of acquiring prisoners also bears some resemblance to the Salem witch trials: the majority of the accusations of satanic activity were attributed to community disputes (involving land, adultery, or some other intrigue) in the small Massachusetts town.^⁹⁹In Afghanistan, we have merely replaced Satanism with terrorism, an accusation which is treated as similarly impossible to investigate (the mosaic philosophy may thus be more crudely described as a "shotgun inquisition").

Many innocents have been imprisoned as a result of sloppy acquisition procedures: Khalid El-Masri, for example, was held in Afghanistan and tortured for months by the C.I.A., but released (malnourished, in the middle of the night in Albania, with neither apology nor explanation, and only after several direct requests by Condoleeza Rice) after officials realized that they were searching for a Khalid Al-Masri.^¹⁰⁰Laid Saidi, an Algerian who was held near El-Masri, claims to have been tortured in a manner similar to Habibullah and Dilawar, despite military claims to have discontinued it after their deaths; Saidi was detained and tortured for several years because he spoke the Arabic word for "tires," which is phonetically similar to the Arabic word for "airplanes," during a taped phone conversation. Transcripts of the Combatant Status Review Tribunals, declassified in June 2009, reveal a higher-profile mistake: Abu Zubaidah, thought to be the third-highest-ranking al-Qaeda operative, was nothing of the sort (the knowledge of which was apparently admitted to him by his handlers):

President George W. Bush described Abu Zubaida in 2002 as "al-Qaeda's chief of operations." Intelligence, military and law enforcement sources told The Washington Post this year that officials later concluded he was a Pakistan-based "fixer" for radical Islamist ideologues, but not a formal member of al-Qaeda, much less one of its leaders.

Abu Zubaida, a nom de guerre for Zayn al-Abidin Muhammed Hussein, told the 2007 panel of military officers at the detention facility in Cuba that "doctors told me that I nearly died four times" and that he endured "months of suffering and torture" on the false premise that he was an al-Qaeda leader.^¹⁰¹

Dilawar's story is recounted in Alex Gibney's Academy Award-winning documentary, Taxi to the Dark Side. The director interviews several of the U.S. soldiers stationed at Bagram, who argue that their mistreatment of detainees was sanctioned by their leaders--if not officially, then certainly through insinuation and an environment of permissiveness (in one instance, a soldier recounts that Rumsfeld and other state department officials periodically visited the base and had full knowledge of the brutal interrogation procedures they had used).^¹⁰²A former Bagram military police officer interviewed in the film, Sgt. Thomas Curtis, defended his actions:

Some would say, "Well hey, you should have stopped this. You should have stopped that. When you saw he was injured or saw he was being kicked on needlessly, why didn't you do something?" That'd be a good question. My answer would be, "Well, you know, it was us against them. I was over there. I didn't want to appear to be going against my fellow soldiers." Which...is that wrong? You could sit here and say that was dead wrong. Go over there and say that.^¹⁰³

Curtis's rationalization drives at the heart of the matter. A bias toward one's team, working in tandem with the "us against them" mentality, discourages any would-be whistle-blower from incriminating his or her comrades^¹⁰⁴in much the same way that the stigma of tattling on one's peers discourages young students from speaking out. The vast gulf between schoolyard mischief in one instance and fatal brutality in the other should work to corral this stigma, but the powerful force of dehumanization all too often places the suffering of Iraqis and Afghanis on the same moral level as a whoopee cushion prank. Yet it also dehumanizes one's comrades, portraying them as intensely prejudiced and self-interested to the point of moral nihilism--an externalization which is clearly false given that at least one soldier (Curtis himself) wished to protest, but did not.^¹⁰⁵This generosity does unquestionably apply to some number of enlisted, but not many of them: an Office of the Surgeon General of the U.S. Army Medical Command survey finds that

just 47 percent of soldiers and 38 percent of Marines agreed that civilians should be treated with dignity and respect. Only 55 percent of soldiers and 40 percent of marines said they would report a unit member who had killed or injured "an innocent noncombatant."^¹⁰⁶

With this in mind, the notion of military justice becomes something of a farce: few soldiers are willing to pursue the case of an abused civilian, and those who do feel threatened by the fraternal code of silence (called the "blue code of silence" in reference to police corruption, it may be adapted here as the "green code of silence").^¹⁰⁷

More recently in Afghanistan, the U.S. military denied having killed 90 civilians in an August bombing run in Nawabad, based on the corroboration of an "independent journalist" who was later revealed to be none other than Oliver North (formerly a Lieutenant Colonel involved with the Iran-Contra affair, North is a commentator for Fox News who recently authored a book which extols the courage and virtuousness of U.S. soldiers in Iraq and Afghanistan). This denial ran counter to the findings of the U.N., an Afghanistan human rights organization, and the Afghanistan government itself.^¹⁰⁸Their evidence summarily proved to be undeniable: on September 17, Secretary of Defense Robert Gates apologized for the incident, promising more accurate targeting in the future. Even the apology, however, contains this outright denial of responsibility: "I think the key for us is, in those rare occasions when we do make a mistake, when there is an error, to apologize quickly, to compensate the victims quickly and then carry out the investigation."^¹⁰⁹While this change in approach would be novel, its sentiment--that mistakes are rare--is inconsistent with the reputed cause of the massacre itself: a shortage of U.S. troops, which has forced a reliance on more indiscriminate air combat and bombing runs. The number of these mistakes is thus likely to increase over time (and has, since his comment--along with military denials and cover-ups).^¹¹⁰An April 2009 Iraq Body Count study found that such bombing raids are most deadly for women (who make up 46% of air raid deaths) and children (39%). Thus only 15% of those killed are men, some of which are undoubtedly innocent. The numbers for U.S. mortar attacks are little better (44% women, 42% children).^¹¹¹The vicious cycle of civilian slaughter, denials, excuses, and more civilian slaughter will not end if the slaughter creates and radicalizes terrorists which are in turn used as the excuse for more slaughter.

Roughly a month after the Nawabad incident, the U.S. admitted to killing only 33 civilians, justifying the deaths as necessary collateral damage incurred in the process of fighting an enemy which hides among civilians.^¹¹²Lieutenant General Martin Dempsey, who heads U.S. Central Command, offered a different excuse to that of Gates: "We go to great lengths to avoid civilian casualties in Afghanistan in all our operations, but as we have seen all too often, this ruthless enemy routinely surround themselves with innocents."^¹¹³The higher civilian casualty total, he claims, was not reliable because it did not include "independent evidence," relying instead on what he dubbed "inconsistent villager statements."^¹¹⁴This immediately begs the question: if 33 civilian deaths are acceptable in the course of pursuing enemies who hide among them, then why not 90? What is Dempsey's interest in persisting to question the total death count if either number is to be considered justified collateral damage? If indeed the military goes to great lengths in avoiding civilian deaths, why does it continue to rely on less discerning air power? Why would it later fire upon two stolen fuel tankers (on the order of German troops, who called in the airstrike^¹¹⁵), killing the hijackers and up to 70 of the 500 impoverished civilians who had gathered to collect the oil? Why does it continue to fight unnecessary wars?

In the end, the war in Afghanistan is rhetorically inseparable from the war in Iraq, despite the common view that it is the "good war." In neither case was the justification for invasion sufficient; in neither case is the justification for occupation credible. The same troops, contractors, and commanders are fighting for a similar goal--providing stability--which in neither case is being buttressed by the occupation. The same illicit tendencies sabotage the Afghanistan nation-building experiment: the Afghan National Army, for example, which is being trained by the U.S. at a yearly cost which is roughly on par with Afghanistan's total per annum economic output (roughly $8 billion and $11 billion, respectively--the U.S. spends $4 billion per month in Afghanistan), has a high rate of desertion due to low base pay for soldiers and the doubtlessly tempting (and better, in terms of pay) offers from Taliban forces.^¹¹⁶That U.S. forces wind up training Taliban fighters is an irony comparable to that which provides the Taliban with significant amounts of funding: U.S. and other foreign contractors must take part in what amounts to a protection racket, paying Taliban forces millions of dollars to hold off attacks long enough for the contractor to get paid.

In order to combat the Taliban protection racket, the U.S. has endeavored to set up its own. See "Meet the Afghan Army," by Ann Jones, which details the counterfeit obligation placed upon the people of Afghanistan by an occupying force which neither understands nor interacts with them as equals. The U.S., along with its allies and an assortment of contractors, trains both the Afghan National Army and the Afghan National Police. In 2003, Jones writes, the U.S. privatized and militarized police training--it "handed the task off to a private for-profit military contractor, DynCorp, and proceeded to produce a heavily armed, undisciplined and thoroughly venal paramilitary force, despised by Kabulis and feared by Afghan civilians in the countryside."^¹¹⁷

Like army training, police training, too, was accelerated months ago to insure "security" during the run-up to the presidential election. With that goal in mind, DynCorp mentors shrunk the basic police training course from eight weeks to three, after which the police were dispatched to villages all across the country, including areas controlled by the Taliban. After the election, the surviving short-course police "soldiers" were to be brought back to Kabul for the rest of the basic training program. There's no word yet on how many returned.^¹¹⁸

Further, the efforts to train and build up an independent Afghan army have produced little in the way of success. The Afghan volunteers are largely impoverished and seek out the military as a means of survival first and expression of patriotic duty second, and U.S. actions guarantee that a sufficiently independent and dedicated force cannot emerge (paving the way for a lengthy--and profitable, for the right people--occupation):

Earlier this year, the US training program became slightly more compelling with the introduction of a US-made weapon, the M-16 rifle, which was phased in over four months as a replacement for the venerable Kalashnikov. Even US trainers admit that, in Afghanistan, the Kalashnikov is actually the superior weapon. Light and accurate, it requires no cleaning even in the dust of the high desert, and every man and boy already knows it well. The strange and sensitive M-16, on the other hand, may be more accurate at slightly greater distances, but only if a soldier can keep it clean, while managing to adjust and readjust its notoriously sensitive sights. The struggling soldiers of the ANA may not ace that test, but now that the US military has generously passed on its old M-16s to Afghans, it can buy new ones at taxpayer expense, a prospect certain to gladden the heart of any arms manufacturer. (Incidentally, thanks must go to the Illinois National Guard for risking their lives to make possible such handsome corporate profits.)

When I visited bases and training grounds in July, I heard some American trainers describe their Afghan trainees in the same racist terms once applied to African slaves in the United States: lazy, irresponsible, stupid, childish, and so on. That's how Afghan resistance, avoidance and sabotage look to American eyes. The Taliban fight for something they believe--that their country should be freed from foreign occupation. "Our" Afghans try to get by.

Yet one amazing thing happens to ANA trainees who stick it out for the whole ten weeks of basic training. Their slight bodies begin to fill out a little. They gain more energy and better spirits--all because, for the first time in their lives, they have enough nutritious food to eat.

Better nutrition notwithstanding--Senator Levin, Senator McCain--"our" Afghans are never going to fight for an American cause, with or without American troops, the way we imagine they should. They're never going to fight with the energy of the Taliban for a national government that we installed against Afghan wishes, then more recently set up to steal another election, and now seem about to ratify in office, despite incontrovertible evidence of flagrant fraud. Why should they? Even if the US could win their minds, their hearts are not in it.^¹¹⁹

Perhaps most troubling for the legalistic argument is the fact that a soldier can no longer be tried in a military court after his or her term has been completed (unless the crime was discovered after the soldier was discharged), and only in recently did civilian courts attempt to pick up the slack: the 2008 trial of Marine Sgt. Jose Luis Nazario Jr. extended federal jurisdiction to cases of former military contractors and servicepersons who are charged with war crimes. The prosecution cited the 2000 Military Extraterritorial Jurisdiction Act, which dealt explicitly with civilian contractors rather than former members of the U.S. military, but was amended in 2004 to include former military. Nazario, who was accused of killing unarmed detainees during the 2004 battle in Fallujah, argued that he was merely relying on the training he had received; he also asserted that when he was asked over the radio if the detainees had perished, he replied that they had not and was subsequently ordered to "make it happen." Nazario's attorney, Kevin McDermott, appeared not to dispute the facts, but rather military fallibility itself: "This boils down to one thing in my mind: Are we going to allow civilian juries to Monday-morning-quarterback military decisions?"^¹²⁰According to a 2006 Washington Post article:

The majority of U.S. service members charged in the unlawful deaths of Iraqi civilians have been acquitted, found guilty of relatively minor offenses or given administrative punishments without trials, according to a Washington Post review of concluded military cases. Charges against some of the troops were dropped completely.

Though experts estimate that thousands of Iraqi civilians have died at the hands of U.S. forces, only 39 service members were formally accused in connection with the deaths of 20 Iraqis from 2003 to early this year. Twenty-six of the 39 troops were initially charged with murder, negligent homicide or manslaughter; 12 of them ultimately served prison time for any offense.^¹²¹

If the military is unable or unwilling to police its own, perhaps some civilian Monday-morning-quarterbacking is necessary. In fact, the government had by that point already begun to Monday-morning-quarterback the contractor Blackwater: in October 2007, facing criticism due to the 2007 Baghdad shootings as well as its handling of the Andrew Moonen case (a former Blackwater guard who was fired after reportedly shooting an Iraqi bodyguard while drunk, then rehired by a different contractor after the U.S. government helped him return home from Iraq^¹²²), the state department announced plans to send a government envoy along with all Blackwater security convoys in Iraq and to install video monitors in the company's armored vehicles which could provide useful evidence in any subsequent investigations. Any radio communication between the convoys and overseeing agencies would also be saved.^¹²³If this can be done for Blackwater, why then has it not been not applied in U.S. military units?

Aside from being factually mistaken, McDermott's logic is immediately faulty: were he instead the lawyer for an accused mafia assassin in an ad-hoc yet legally sanctioned (suppose that a mafia-friendly President had been elected) court of the mafia's own making, McDermott would have been reticent to ask, upon learning that civilian courts intend to reassert control over the process, "Are we going to allow civilian juries to Monday-morning-quarterback mafia decisions?" His logic drives at the heart of the fallacy of military exceptionalism: that the military is distinct from civil life in some aspects does not immediately render it wholly unique in every aspect. To assume that it must never fall under civilian jurisdiction is to assume military infallibility and to forget that the military is ultimately answerable to civilian authority, which is quite capable of handling the specific doctrinal distinctions of military versus civilian laws.

These recent tribunal cases point to a preference among arbiters of military justice for a general relaxation of the rules of engagement for American troops^¹²⁴and interrogators,^¹²⁵in tandem with a relaxation of the standard of evidence for convicting those who are alleged to have done them harm. But how much relaxation is possible before the rules permit a drift into the territory of war crime? The military tribunals' failure to meaningfully punish transgressors results in an ever-expanding umbrella of actions considered legal, either explicitly or as a de facto precedent in future cases. If morality is tied to legality, then there is a growing moral conflict between international law and the U.S. system of military justice. While the U.S. has often placed itself as above such laws and customs,^¹²⁶this can only be possible with respect to the legal (pragmatic) aspect of state sovereignty. If the U.S. were to withdraw both legally and morally from the norms of the international community, then it is reduced to a rogue state, indistinguishable from any other pariah state in terms of both behavior and ethics. Withdrawal in the legal sense is tolerated within the world community only because there remains an assumed moral inclusion which minimizes its consequences (such was explicitly argued by neoconservatives such as Bill Kristol, in defense of the U.S.'s singular hegemonic power); without such an assurance, U.S. behavior is all the more troubling to rest of the world. For this reason, the 2008 disclosure of a secret order (signed by Donald Rumsfeld) granting the U.S. military freedom pursue al-Qaeda in any nation should be positively chilling. The order explicitly allows for attacks on militants in countries not currently at war with the U.S., and has resulted in raids in Pakistan, Syria, Somalia, and elsewhere. According to an International Herald-Tribune article,

Rumsfeld had pushed in the years after the Sept. 11 attacks to expand the mission of Special Operations troops to include intelligence gathering and counterterrorism operations in countries where American commandos had not operated before.

Bush administration officials have shown a determination to operate under an expansive definition of self-defense that provided a legal rationale for strikes on militant targets in sovereign nations without those countries' consent.^¹²⁷

The Bush administration's repeated attempt to co-opt the principle of national self-defense as a rationale for preemptive aggression out of step with international legal andmoral norms devalues the term. The boy who cried wolf would have been ignored ever more quickly if each false cry was accompanied not by laughter or an admission of trickery, but by a hastily- and flimsily-constructed rationalization explaining that his false cries were necessary (and perhaps a repeated insistence that the wolf is actually present in spite of clear evidence that it is not, if the analogy is to be entirely accurate^¹²⁸).

Even if we come to accept that the exigencies of the soldiers' situation in Iraq can legitimate a hair-trigger attitude and concomitant relaxation of moral standards, the soldiers in Iraq are not being held there under any active force: they can leave at any time, rather than remain in a situation in which the occasional killing of innocents is necessary to preserve one's absolute safety. It would not be considered acceptable for a skydiver to ignore his or her parachute in favor of landing on a bystander in order to break the fall, and so it should not be acceptable for a soldier stay in Iraq if doing so requires the periodic death of civilians. There is another, more pernicious consequence of this attitude: a justified suspicion of all American troops among the Iraq populace. The father of the two murdered Haditha girls, for example, might decide to preemptively fire at any Marines who happen upon his residence, and by Lt. Col. Ware's logic, he would be correct in doing so. After all, his last experience with Marines left him shaken, and he might take their drawn rifles as an indication that they are coming to finish the job.

Having reflected on his place as an active participant in a demonstrable evil (an unnecessary war), the soldier has concluded that he is morally compelled to desert immediately. Like many of his comrades, he may choose to remain in spite of that. But with each passing day, the realization becomes more inescapable: doing so makes him a criminal--not in the legal sense, perhaps, but rather in the even more important moral sense. He is not being held in Iraq as a hostage of the state; he yet possesses the full range of his logical and moral faculties. He must choose knowingly to follow a given order, and he can no longer in good conscience follow the order which keeps him in Iraq. It is time for some civil disobedience.

The soldier soon takes it upon himself to convince as many of his fellow troops to desert with him. In doing so he risks marginalization and endangerment, but more pressingly the troops have a variety of counterarguments that the soldier must entertain. Their skepticism is not surprising, but their scoffing cannot deter the would-be deserter. The soldiers do not initially protest his separation of morality and legality, but offer a pragmatic critique of a premature pullout. They allege that troops are still required in Iraq--in spite of the immorality of their orders, they must carry them out to prevent a greater evil, such as a civil war or insurgent victory. The soldier initially pauses; they are perhaps correct that anarchy would soon emerge if everyone followed their conscience with no regard for the consequences. He must look more critically at this line of defense before many troops would be convinced to return home with him.

Having now come to realize that he is morally required to desert his post, the soldier begins to campaign among his fellow enlistees, whom he views as similarly accountable. There is now the question of outcomes--the resulting mass exodus of U.S. military personnel from Iraq could conceivably result in an atrocity on par with the occupation itself. While the consequences for the soldier cannot mitigate the immorality of his refusal to desert (except, as we will see, in cases of capital punishment), they too are worth examining, as are the consequences for the American political system, which might in some way be damaged by a changing command structure if soldiers assert greater independence in their moral decision-making capabilities.

Immediately it becomes apparent to the soldier that such an exit might leave Iraq in a worse position--if the insurgents continue to fight and manage to take over the country's governing body, the resulting oppressive rule could conceivably spark a civil war several orders of magnitude more violent than the current conflict. Is it then the soldier's duty to remain an occupier--and to continue committing a moral atrocity--just because the violence might escalate in his absence? Importantly, there is no certainty that this would be the case: at the onset, it is just as likely that the insurgency would abate in the absence of a foreign occupation.

According to a 2006 World Public Opinion poll, Iraqis overwhelmingly view the U.S. presence in Iraq as a destabilizing one: overall, 78% feel that the U.S. presence is "provoking more conflict than it is preventing." From the same poll:

A large majority of Iraqis--71%--say they would like the Iraqi government to ask for U.S.-led forces to be withdrawn from Iraq within a year or less. Given four options, 37 percent take the position that they would like U.S.-led forces withdrawn "within six months," while another 34 percent opt for "gradually withdraw[ing] U.S.-led forces according to a one-year timeline." Twenty percent favor a two-year timeline and just 9 percent favor "only reduc[ing] U.S.-led forces as the security situation improves in Iraq."^¹²⁹

There is now the pertinent question: how certain would the soldier need to be that Iraq would descend into bloody chaos in his absence for his continued service to be legitimated by pragmatic concerns? If the soldier was instead a kidnapper who had chained a Shiite Iraqi to a chair in his basement, would he be justified in refusing to let the man go just because he may be struck by a passing motorist in his haste to escape? Even if the traffic was particularly heavy at that time of day, the kidnapper would not be justified in restraining the Iraqi--only a meaningful level of certainty would justify his detainment. For example, if an armed, militant Sunni waited outside the apartment and repeatedly called for the Shiite's death, the kidnapper might claim that his actions were necessary to protect his victim. But there is no irrefutable indication that the modern insurgency has either the means or the willingness to make a worst-case scenario inevitable.

According to a 2008 New York Times analysis, insurgent attacks were overwhelmingly targeted at Coalition forces: in the months following the 2003 invasion, civilian targets accounted for between roughly 1/6 and 1/5 of all attacks. Taking the Iraqi armed forces into consideration, the proportion of all insurgent attacks targeting Iraqis is still well below 50%.^¹³⁰That the violence is so often targeted at the Coalition troops in spite of the greater difficulty and danger involved in doing so is a powerful argument in favor of the idea that the insurgents are primarily concerned with ejecting the occupiers from their country, rather than participating in sectarian strife. It is also likely that a certain percentage of those attacks on Iraqi civilians are done to apply pressure on the U.S., and unlikely that any attacks on U.S. forces are meant to express any dissatisfaction with the attacker's ethnic rivals.

The prospect of an all-out civil war in Iraq must be a near inevitability if it is to be used as a justification for remaining in Iraq. Unless U.S. forces are approaching certainty that a hasty exit would leave Iraq worse off, it is their duty first and foremost to cease a demonstrably immoral action, even if there is a possibility that doing so would indirectly facilitate another immoral action in others. This possibility always exists, and only when it is sufficiently high is an otherwise intolerable action permissible (lethal self-defense, for example). Conversely, if the danger of civil war was judged intolerably high, the presence of an international peacekeeping force which serves at the behest of the duly-elected Iraqi government would be legitimated prior to that of a unilateral occupier.^¹³¹Moreover, if a civil war were to erupt in Iraq, it would do so for reasons which the U.S. presence could only postpone (as the argument goes, Hussein's repressive yet harmonizing regime was doing so prior to the invasion). Unless the U.S. undertook a program of forced ethnic repopulation (which has been occurring for years as a result of regular violence, in spite of the U.S. presence--see for example the ethnic homogenization of Baghdad, which has been partially responsible for the late-stage lull in violence), those tensions would exist whether the U.S. pulled out now or in 10 years.

Returning to the analogy, the Iraqi prisoner is made aware of the possibility that he could be struck by an automobile upon his retreat from the safe room, and wishes to leave in spite of it. Because there is always a slight risk of being struck by a car (such is consequence of going outside one's home), it is not the soldier's duty to keep that risk at zero; he could allow the risk to increase without becoming personally responsible for any resulting accidents, unless of course he increased it to nearly 100% by pushing the man into traffic (this would be considered reckless endangerment). On the other hand, if the Sunni militant was waiting outside and prepared to fire on anyone who leaves the building, the prisoner may still choose to take his chances in spite of the general inevitability of his demise. Is it still the soldier's duty to keep him bound if he faces certain death upon being freed? Would the moral calculus be any different if the Shiite prisoner argues that the Sunni was being aggravated by the soldier's presence, and would not likely fire upon seeing him emerge, now free of the soldier's capture?

A majority opinion alone cannot justify a withdrawal, just as the prisoner's opinion about the gunman does not necessarily reflect his true intentions--the soldier may know better, and rightfully keep the detainee restrained in spite of his protestations. But it is an unfortunate fact that the U.S. occupiers do not know any better than the Iraqis what will transpire upon their departure. The popular sentiment of the Iraqi people, reinforced by the nominally representative government, thus takes precedence over the wishes of the American occupiers. Absent a compelling reason--an insurgent with his or her finger on the trigger^¹³²--it is the captor's duty above all else to cease a demonstrably immoral action, and, by inference, for every soldier (and contracted mercenary) now stationed in Iraq to desert immediately.^¹³³The U.S. should then pay restitution to the Iraqi government with an aim of reinforcing stability and ensuring that it is able to provide a social safety net to its embattled citizenry.

There is also the question of consequences for the soldier himself. If the consequences of desertion are severe, asking it of the soldier becomes more difficult. If the punishment was death, for example, enlistees could plausibly argue that their right to self-defense entitles them to continue reinforcing an admittedly predatory occupation in order to avoid the ultimate penalty--their own imminent and assured deaths could arguably take precedence over the possible future deaths of Iraqis they may facilitate.

But the penalty is not death. One recent deserter, Iraq veteran Pfc. James Burmeister, faced the possibility of a bad-conduct discharge and jail sentence (he was sentenced to six months).^¹³⁴Ehren Watada, whose desertion fuelled this chapter's hypothetical, faces a four year jail sentence--the maximum sentence under the Uniform Code of Military Justice for missing a troop movement and "actions unbecoming an officer."^¹³⁵Provided that these consequences are not exceedingly severe, it is both moral and pragmatic to ask a soldier to bear them in the name of ceasing his or her participation in an immoral action. A jail sentence on the order of six to 10 months (the rough average length of recent deserters' incarceration) is not exceedingly severe by any measure.

We would not say that because there are consequences of desertion, a mafia assassin should continue to clandestinely murder the enemies of his or her employers. We would still require that such a criminal cease an immoral action and turn state's evidence, in spite of the fact that an admission of guilt would likely result in a jail sentence or some other inconvenience. In either case, we have a member of an institution who is ostensibly just following the orders laid out by its governing body (the mafia captains in one case, the military command or central government in the other), but is still in possession of the moral capacity to act and thus fully complicit in its crimes.

The mafia analogy is instructive in another way: if the soldiers who decide to desert tended to be the most morally upright ones, then those who remain would lack an important check on their actions: the watchful eye of their more conscientious platoon mates.^¹³⁶Yet the same could be said of a relatively honorable mafia assassin, who has stopped some number of his partners' violent excesses. As this would not legitimate his participation in the mafia command structure, neither should it legitimate a soldier's participation in an aggressive military's command structure.

It is often argued that because many enlistees from low-income families use the armed forces as a way out of poverty, their choice to join was not made as a free and equal rational actor. But unless the prospective enlistee was in danger of starving, any self-interested careerism would not sidestep the moral questions associated with his or her service. It would, at best, only indicate that the enlistee was unenthusiastic about the military's actual mission (though most troops have supported the war throughout its duration, and approved of the way the President was handling it), and was only using the military as a sort of warfare welfare. Such situational contingencies might make the decision more understandable, and certainly the lower class is overrepresented on the front line (indeed, the military met its recruitment goals for the first time in more than three decades in 2009, due to the economic downturn--and a lowering of its recruitment goals), but it cannot excuse an immoral action committed willingly where there are alternatives. It may also be argued that the poor have a diminished access to information, and may be unaware that their actions are immoral. It is thus important that we take any opportunity to reiterate that fact to them, loudly and with conviction. At any rate, even the most ignorant soldier is charged with obeying the law, and must judge his or her given orders against a legal standard--tasking them with evaluating the justification for an order's legality status itself is only a minor incremental step, one which is expected of all human beings regardless of occupation or disability.

A soldier's amorality (rather than immorality) is not, in any case, a ringing endorsement of his or her character--we must ask what a purely self-interested enlistee (a soldier of fortune, in less charitable terms) would do when offered a greater sum of money by less scrupulous organizations or nations? Many have already defected to privatized military firms, and the lure of organized crime must be similarly tantalizing.^¹³⁷The mafia too is at least partially a product of Italian Americans' economic hardship (often the result of prejudice), so the comparison is not without merit. Yet we do not excuse mafia thugs for their poverty-engendered predation (precisely because it is not necessary for survival, and the gangster is aware of this); neither should we excuse a soldier's.

The soldier's internal misgiving about any individual order is unimportant here; many soldiers in Iraq have spoken out about the immorality of the occupation, but continue to serve nonetheless. Their motives for doing so are immaterial--while some motives are less objectionable (escaping poverty versus an actual desire to harm others), none, save self-defense, are capable of justifying a violent action. The poverty rationalization is especially pernicious, given that substantial poverty alleviation programs are yet unemployed (minimal welfare and unemployment stipends do not count as substantial). We as a society should first attempt to redress poverty's ill effects through wealth redistribution, only resorting to conscription if all other avenues prove lacking. This failure will never occur, given that wherever conscription is an option, there will always be alternative forms of government employment, such as make-work programs of the sort which were created during the Great Depression. It is nonsensical to legitimate immoral activities in the name of escaping poverty before less extreme alternatives have been exhausted. If those less extreme measures will always be available, then it follows that predatory military service with the aim of escaping poverty will always be immoral (similarly, it would not be morally sound for a starving individual to murder another and take his or her food if there is a soup kitchen within reasonable distance). But what of a prospective enlistee who joins in order to receive health benefits for his or her family, all other options exhausted?^¹³⁸It may be argued that the immediacy of illness demands that any option be pursued--as self-defense on behalf of one's ailing family members who are imperiled by the market-driven scarcity of healthcare. To these individuals, we might say: "Do what you must, but first minimize harm in the course of your duties and then focus your efforts on ensuring that other individuals are not confronted with the same vile choice: between allowing a family member to die and contributing to a process which has killed a million unrelated individuals halfway across the world." It is unfortunate that such an individual is wont to legitimate causing harm to those who pose no immediate danger to him or her, rather than those (including the rich and influential military high echelon) whom he or she may kill in valid self-defense. Whereas food can be stolen and consumed directly, medical insurance is necessarily a legal protection, unavailable to those who (justifiably, though illegally) kill in order to inherit it. Additionally, there are soup kitchens and food stamps programs (more Americans are now enrolled in this program than ever before)--the absence of universal healthcare appears at first to provide a justification for predatory service with the aim of securing healthcare (this is another explanation for the militaristic right wing's opposition to it--if the poor could secure healthcare without killing, they would be duty-bound to do so and thus more likely to avoid service in an immoral institution). This is not valid, however: in joining with the oppressor, even for a seemingly valid reason, the soldier becomes an oppressor, and thus a valid target via a self-defense principle: indistinguishable from the same military high echelon which directly imperils and can thus be resisted via self-defense, the soldier (even one who joins in order to seek out healthcare) kills those who are even more impoverished. The soldier's is not a revolutionary action, but rather one which only adds a new, lower group to be oppressed. And this new group retains its own right to self-defense, rendering the soldier's collaboration morally invalid.

As Congressman Barney Frank argues, defense spending has little use as a social safety net at any rate:

When I asked him years ago what he thought about military spending as stimulus, Alan Greenspan, to his credit, noted that from an economic standpoint military spending was like insurance: if necessary to meet its primary need, it had to be done, but it was not good for the economy; and to the extent that it could be reduced, the economy would benefit.

The math is compelling: if we do not make reductions approximating 25 percent of the military budget starting fairly soon, it will be impossible to continue to fund an adequate level of domestic activity even with a repeal of Bush's tax cuts for the very wealthy.^¹³⁹

In general, our willingness to pass over less violent alternatives in favor of violent force betrays a particularly ugly character: rather than attempt to understand a detainee, we are content to torture him or her; rather than address issues of inner-city poverty and gang culture, we are content to sanction prison brutality as a deterrent; rather than provide gainful employment and a social safety net, we are content to give young men and women advanced weaponry and drop them among a people they do not understand (and, given a lack of available interpreters, are unableto understand).^¹⁴⁰Worse, there is evidence that less violent methods yield greater returns: while his stated policies regarding the War on Terror may not bear it out (the administration has continued the practice of allowing the C.I.A. to fire missiles into Pakistan's tribal border region,^¹⁴¹as well as the Bush administration policy of invoking the state secrets doctrine to prevent rulings against corporate entities complicit in the practice of extraordinary rendition^¹⁴², for example), newly-elected President Obama's image as an even-handed and judicious arbiter of Middle East matters has afforded him a level of popularity among Muslims far greater than that of his predecessor, and may be cutting deeply into al-Qaeda's membership rolls.^¹⁴³He thus might have accomplished by the pretenseof civility in a matter of months what George W. Bush was unable to do by threat (and application) of force in eight years, if his image had proven an accurate reflection of his character. That this attempt at understanding was ultimately an empty and thus ineffective gesture is an argument for its genuineadoption, not a counterargument to the very idea of judiciousness.

The great danger in empowering soldiers to disobey a lawfully given order is the possibility that such a paradigmatic shift in the role of the military might lead to greater levels of autonomy and eventually, to independence. If the soldier was able to convince a large number of his comrades to desert, it is likely that punishing them all would become infeasible, and as a consequence desertion, at least in the short term, would become accepted and perhaps legalized. From here, though, it is a significant leap to permit soldiers, and military leaders in turn, to dictate policy in a positive direction rather than an expressly negative one--the difference between refusing to follow an immoral order and giving one (independent of the leadership hierarchy) is akin to the difference between Thoreau's peaceful brand of civil disobedience and violent rioting.

At worst, the government's capacity to use the military would be diminished with respect to unpopular wars. In cases of genuine necessity (such as in the highly unlikely scenario of an invasion of the mainland United States^¹⁴⁴), few soldiers would feel compelled to desert. The Iraq War, though, might have had a different outcome if soldiers were legally empowered to desert and had utilized the appropriate moral calculus before shipping out. There is of course no guarantee that the appropriate moral calculus would have been considered, nor that the troops would have felt it a compelling reason to quit a paying job; nevertheless, it is clear that war-waging capacity would only be diminished insofar as it is put to use toward a morally questionable outcome. Desertion thus acts a crucial check on the otherwise authoritarian relationship between the military apparatus and its enforcers.

Additionally, history has provided plentiful examples of a factual legal military oath doing little to preclude an otherwise determined military coup. But what is the source of this determination? We must finally ask what the military has to gain by overthrowing the state--it presently enjoys effectively limitless funds and widespread popular respect, and acting to change this relationship is not in any military leader's interest. There is only ideology as a source of discontent, not funding, and an ideological coup is not emboldened by impressing upon soldiers a moral requirement which is at odds with the likely violent slant of the revolutionary's preferred moral viewpoint.

There is also the ever-present specter of the draft. A government hell-bent on waging a foreign war might conceivably institute a draft in order to raise the requisite number of troops if active duty personnel prove reluctant. The draft is a politically costly solution, though, and a war which is not sufficiently supported by soldiers is not likely to be supported by the public. The draft can be protested, and in fact failure to do so would betray a moral weakness in the conscientious conscript. Those draftees who decide to fight may justify their decision by arguing that theirs was an altruistic choice--they went so that others didn't have to. Yet in the case of an immoral foreign war, the existence of others willing to take advantage of the opportunity does not reduce the guilt of those who do. More importantly, given that it is possible to protest the draft, those who fight in order to save their fellow citizens the trouble would be better off spending their time working to end the draft itself--it is better to save all draftees by working to end the practice than to replace one draftee (and simultaneously reinforce the legitimacy of the draft itself though participation). It may be similarly argued that an act of great risk constitutes an act of great heroism, and so voluntary (whether compelled by a draft or not) service should be venerated. But mere risk is not sufficient--the morality of the risky action must be taken into consideration, lest mafia soldiers be accorded the same respect as that which is generally given to U.S. soldiers.

More generally, it seems dangerous to empower an individual to forego the duties of his or her job should they be seen to clash with his or her notion of morality. It is at first glance an inconsistency to require troops to desert their posts upon the declaration of unnecessary war while simultaneously arguing, for example, that pharmacists must perform their duties in spite of a moral objection to filling so-called immoral prescriptions (for birth control, or the "morning after" pill).^¹⁴⁵

It is here that the notion of harm becomes crucial. Because pharmacists cannot prove that birth control is actually harmful in any verifiable way to an organism^¹⁴⁶which ought to be granted rights by any intuitive principle, their conscientious objection is distinct in both character and ramifications from that of a protesting soldier. Recall that the ramifications of soldier desertion are minimal and consigned mainly to the soldier; on the other hand, a right to refuse to give medical care of any stripe has an immediate impact on a patient's health. In one instance, shirking agreed-upon responsibilities minimizes harm; in the other it maximizes harm. The crucial factor is then not the claim of moral reprobation itself, but one's ability to argue its truth using rational, scientific analysis.

Consequently, it is impossible to kill an abortion doctor and claim self-defense on behalf of the fetus precisely because there is no way to show that the fetus is being harmed by any useful definition of the word. When anti-abortionists refer to the number of fetuses terminated as a "holocaust" (a rhetorical tactic repeated by Republican Alan Keyes' 2008 running mate, Wiley Drake, regarding the assassination of Kansas abortion doctor George Tiller on May 31, 2009^¹⁴⁷), they are committing more than sensationalism: in comparing them to a fetus in development, they dehumanize real, extant victims of violence--not merely collections of human D.N.A. or human potentiality, but human experience- and rights-holders who are able to affirm and recognize themselves as such (or whose inability to do so is temporary). That a fetus is excluded from protection under the harm doctrine does not impugn upon the right of any organism which can refer to itself as human. A sapient mind and body are necessary for the designation; without one or the other, there is no humanorganism.

Conversely, the same doctor could not later refuse to perform a life-saving surgery by stating that there is some small chance that the patient would later try to inflict some harm upon him or her. The imminence of harm requires a doctrine of prevention, rather than preemption.

On the other hand, a police officer who finds a stash of marijuana in an otherwise law-abiding person's home would be morally permitted--indeed, morally required, if the consequences of such would not be fatal--to shirk his or her duties and look the other way (and many do). The officer would not be morally permitted, though, to fire unnecessarily upon a supine suspect even if he or she personally exalts the physical punishment of so-called undesirables, nor to do so with the excuse that such an action was legally ordered by a superior. Failure to perform other useful duties would also fall outside the realm of conscientious objection: an officer who refuses to help a victim in distress (say, because of the victim's race or gender) would not be undertaking a just protest because the law he or she is failing to enforce is itself just.

Exhorting others to act according to a moral code even where it conflicts with law and duty may seem to set a dangerous precedent, but this is not all that is being done. It is not being advocated that murder-worshippers go ahead and murder in spite of its illegality, merely because their moral code exhorts them to do so. Inherent in the requirement that all rational actors follow these codes is a code itself which, far from being directionless, contains the intuitive reservation that such total moral anarchy is unworkable in the company of others. The necessity of arguing one's case in a rational, reciprocal way is meant to provide the check (on one's base impulses, among other things) which would prevent certifiably harmful actions from occurring while allowing those which only masquerade as harm (homosexual sex) to continue unimpeded.

"War will exist until that distant day when the conscientious objector enjoys the same reputation and prestige that the warrior does today."

The daughter of a prominent Mossad administrator recently undertook a protest against the compulsory two-years of service required by all Israeli citizens. Omer Goldman, 18, tendered her refusal to serve on September 23, 2008, and was sentenced to 21 days in jail (she served 35 days and then received a medical discharge; sentences for conscientious objectors can be as long as three years--subsequent refusals to serve can keep young Israelis incarcerated until 21). She decided not to serve after several I.D.F. soldiers fired rubber rounds and gas grenades at Goldman and several Palestinians with whom she was conversing, during a visit to their road-blocked village. The soldiers fired upon the group merely because they had received an order to do so; ascertaining a direct threat was not required.^¹⁴⁹

Rather than submissively tolerate Israel's jingoistic militarism, Goldman openly objected to its policy of compulsory service, in doing so sending a clear message to the Israeli government and preserving her moral stature. Goldman could have served out her time, advocating where possible a softer approach within the I.D.F., but doing so would also reinforce the Israeli militaristic nationalism which has led to led to increased settler attacks on Palestinians (a recent incident was the beating of a 6-year-old Palestinian boy by a mob of Israeli settlers), peace activists, and even upon the I.D.F. itself when it fails to fully support their illict expansionism.^¹⁵⁰Israel's history is rife with human rights abuses (the Sabra and Chatila massacre, for example, during which Israel's allies in Lebanon murdered some 2-4,000 Palestinian refugees in camps under the I.D.F.'s control and with its implied consent--I.D.F. forces guarded exits and prevented the refugees from escaping^¹⁵¹) which found their genesis in a dehumanization of the opposition.^¹⁵²This dehumanization is reinforced via indoctrination by extremist military rabbis, a force which is growing in strength, according to Ethan Bronner of TheNew York Times: "For the first four decades of Israel's existence, the army -- like many of the country's institutions -- was dominated by kibbutz members who saw themselves as secular, Western and educated. In the past decade or two, religious nationalists, including many from the settler movement in the West Bank, have moved into more and more positions of military responsibility."^¹⁵³Bronner is referring to I.D.F. testimonials concerning the 2008 invasion of Gaza, the brutal Israeli incursion which saw numerous atrocities and which, according to a number of I.D.F. soldiers, was widely regarded as a religious war.

Actively serving in the I.D.F. reinforces another popular Israeli sentiment: an enduring prejudice against Palestinians, the popular expression of which caused Cabinet Minister Meir Sheetrit (currently serving in the Knesset for Kadima) to declare in 2008, "We must take a neighborhood in Gaza and wipe it off the map." This remark was spurred by a public demand for vengeance among the residents of Sderot, after one of the town's children lost his leg in a Palestinian rocket attack (the I.D.F. would later make good on this promise, wiping the Gaza farming village of Juhr el Dik off the map in the December 2008 invasion).^¹⁵⁴Another official, Vice Premier Haim Ramon, advocated a zero tolerance economic sanction policy for a single rocket attack, arguing that Israel should cease the shipment of all goods, electricity, and water through Israeli-controlled Gaza entry points (sanctions have already resulted in a steep humanitarian cost due to starvation,^¹⁵⁵as well as 8-12 hours a day of blackouts in the territory, due to fuel shortages). It took the Israeli Prime Minister to stay the hand of vengeance: Ehud Olmert pointed out that the rocket attacks themselves were a reprisal against Israeli assassinations and incursions into Gaza which had killed hundreds over the last several months.^¹⁵⁶Olmert, who has since resigned his post amid allegations of corruption, conceded that Israeli policy has been disastrous, repudiating his past conservative outlook and recommending that Israel withdraw from much of the West Bank as well as Jerusalem. When asked about a possible preemptive strike against Iran's nuclear weapon capabilities, Olmert called such aggressive unilateralism "megalomania," and advocated an international approach to any threat posed by Ahmedinejad's Iran.^¹⁵⁷History has shown that his warning, though astute, was neither sincere nor taken seriously by the electorate: the right-wing nationalist and racist^¹⁵⁸Likud party made significant gains in the February 2009 legislative elections^¹⁵⁹and the current housing ministry has plans to more than double the number of Jewish Israelis living in the illegal West Bank settlements (Defense Minister Ehud Barak would authorize the construction of 455 West Bank settlement units in September 2009).^¹⁶⁰

Those who took part in the occupation of Iraq cannot be said to have acted in a self-defense capacity, so their abandonment of duty would not leave the U.S. immediately vulnerable to attack. There is no element of their service which protects the physical United States, and there has not been, to any significant degree, since well before the conflict in Vietnam. During the Cold War, U.S. foreign policy transformed into an arm of ideology (at first reactionary anti-communism and then neo-conservatism, both with a powerful undercurrent of right-wing Christianity), relegating the military's role to that of a steward for U.S. corporate interests first and enforcer of valid defense concerns second (or perhaps third, if we include the still-present anti-communist ideological influence). The Cold War was first and foremost an artificial extension of World War II by agents of the nascent military-industrial complex, who, worried that peacetime would be downtime for weapons manufacturers, worked to replace the organizing principle of the security of the U.S. in practice and in rhetoric with the sanctity of the free market system (although the two were frequently conflated). The first manifestation of this could be found in the twin containment principles of the Truman Doctrine and Marshall Plan, under which the U.S. provided military (principally to Greece and Turkey, with the end result being the death of hundreds of thousands to civil war and an eventual apology by President Clinton for the U.S. support of a brutal Greek military junta in the 60s) and economic aid (mainly to Western Europe, with the end result being a nominal economic recovery and persistent indebtedness to U.S. economic interests) to nations considered strategic in waging what seemed for decades to be a perpetually-escalating conflict. Religion played an important role in this ideological shift: the free market was cast as the godly economic system, state socialism as an atheistic "other." This rhetorical association has been easily reconfigured over the last decade as a general opposition to any non-Christian political entity which dares to be uncooperative with the financial and political goals of U.S. neoconservatism; with the Soviet Union no more, and "socialism" being practiced by generally benign (if blinkered) European counties, the greatest threat to our way of life is now Islam. The lucrative and paranoid Cold War did not end, but was replaced by the nominal enemy of the day.

This formulation of U.S. foreign policy during the Cold War era has had devastating implications for those would-be self-determining nations (including, perhaps most visibly, South Vietnam) which were caught in the middle of the ideological struggle. Under one of its most recent manifestations--the Reagan Doctrine^¹⁶¹--the U.S. supported and trained oppressive right-wing regimes throughout Latin America, Asia and Africa in the name of combating Marxism and Soviet expansionism, overtly in some cases through the use of the U.S. Armed Forces, and covertly in others through the use of C.I.A. assets and personnel. In Latin America, this was an extension of Operation Condor, the violently anti-communist movement supported by Nixon- and Ford-era Secretary of State Henry Kissinger.^¹⁶²By and large, the doctrine was enforced indirectly and without active fighting by U.S. troops; the role of the military was focused more on material aid and instruction of so-called "freedom fighters" at the Army-run School of the Americas,^¹⁶³as part of a paradigmatic shift away from direct accountability and toward twice-removed complicity in the form of proxy wars financed by America and its allies.^¹⁶⁴The move toward private military firms^¹⁶⁵can be cast as the logical next step in this process--even the transportation of detainees to torture sites has been outsourced to a Boeing subsidiary.

As a result of this policy omnibus, hundreds of thousands perished due to war, starvation, and political oppression. In Guatemala, up to 100,000 indigenous Mayans were killed in its bloody civil war during the period of U.S. support; Reagan called brutal military leader Rios Montt (a graduate of the School of the Americas) "a man of great personal integrity." In El Salvador, 75,000 perished in a civil war which was viewed by the U.S. government, which threw its weight behind the right-wing military government, as an extension of the Cold War. In Nicaragua, the U.S. supported the Contra rebels and mined Nicaraguan harbors, a covert action for which the U.S. was later tried in the International Court of Justice (the U.S. lost and was ordered to pay reparations, although it never did). In Angola, a protracted civil war (in which the C.I.A. was involved, even after Congress voted to cut off funds) resulted in 300,000 child deaths by U.N. estimates during Reagan's presidency alone; Reagan welcomed warlord Jonas Savimbi to the White House and supported his efforts as part of a struggle for freedom, prolonging the war (the roots of many current African conflicts can be traced back to the Cold War, during which the U.S. sent more than $1 billion worth of weapons to the continent, including to dictators such as Mobutu Sese Seko, who was seen as a bulwark against communism; arms exports have not ceased with the end of the Cold War). In Laos, unexploded U.S. cluster bombs (remainders of the 580,000 indiscriminate bombing raids American planes flew into the country from 1964 to 1973) have killed and injured more than 11,000. In East Timor, a 1975 Indonesian invasion was given explicit approval by President Ford and Secretary of State Henry Kissinger, who provided U.S. weapons and encouraged the pliant U.S. media to remain silent on the resultant brutality (three years of bloodshed and the deaths of up to 100,000 East Timorese). In Cambodia, the U.S. recognition of the exiled Khmer Rouge government at the U.N. (due, in large part, to the fact that it was the communist Vietnamese which had forced the government into exile) prolonged a bloody civil war there and added to the millions of Southeast Asians killed in earlier U.S. bombing raids (support for Pol Pot's regime was in large part due to these earlier attacks upon the neutral country during the Vietnam conflict). In Afghanistan, the U.S. armed fundamentalist guerilla fighters to attack the Soviet presence there, then promptly withdrew in tandem with the Soviets, sparking a legacy of repression which culminated with the Taliban government. In Iraq, the Reagan government sold Saddam Hussein 60 Hughes helicopters and removed his regime from a list of terrorism-sponsoring state governments after it learned in 1981 that the Soviets planned to send Hussein 1,200 military advisors and to sell the regime 800-kilometer SS12 missiles (this is, of course, not to mention the overall close association between the U.S. and Iraqi government throughout the decade; this includes the export of biological and chemical agents to Hussein, some of which would be used against Kurdish civilians in 1987).^¹⁶⁶In Grenada, over 100 perished in a 1983 U.S. invasion later criticized by the vast majority of U.N. member nations as unnecessary and "a flagrant violation of international law and of the independence, sovereignty, and territorial integrity of that state."^¹⁶⁷In Panama, a 1989 invasion to remove the U.S.-trained (another School of the Americas graduate) and formerly C.I.A.-employed^¹⁶⁸dictator Manuel Noriega resulted in between 1,000 and 5,000 Panamanians killed, with many more wounded and left homeless, abandoned by both governments.^¹⁶⁹These incidents are but a sampling of the recent malfeasance undertaken by the U.S. government with the support of military and C.I.A. assets in the name of combating communism.

The transformation of the U.S. military into an enforcer of profiteering politicians began in earnest in the early 20^thcentury,^¹⁷⁰when under President Theodore Roosevelt the U.S. intervened in the affairs of several Latin American and Caribbean nations, most notably to construct the Panama Canal. One of Roosevelt's contemporaries, the highly decorated Marine Corps General Smedley Butler (who would later sabotage the efforts of the Business Plot, a fascist conspiracy among business leaders to overthrow the Roosevelt government via military coup^¹⁷¹), became disillusioned with the role of profiteering and interventionism in the U.S. military, and later repudiated much of his 33-year service via lectures and in his book War is a Racket. He famously issued the following mea culpa in 1935:

I spent 33 years and four months in active military service and during that period I spent most of my time as a high class muscle man for Big Business, for Wall Street and the bankers. In short, I was a racketeer, a gangster for capitalism. I helped make Mexico and especially Tampico safe for American oil interests in 1914. I helped make Haiti and Cuba a decent place for the National City Bank boys to collect revenues in. I helped in the raping of half a dozen Central American republics for the benefit of Wall Street. I helped purify Nicaragua for the International Banking House of Brown Brothers in 1902-1912. I brought light to the Dominican Republic for the American sugar interests in 1916. I helped make Honduras right for the American fruit companies in 1903. In China in 1927 I helped see to it that Standard Oil went on its way unmolested. Looking back on it, I might have given Al Capone a few hints. The best he could do was to operate his racket in three districts. I operated on three continents.^¹⁷²

InWar is a Racket, Butler excoriates the military-industrial complex and concludes that, in order to stop the war racket, three changes must take place (page 13):

The subsequent testimony of Pentagon military analyst Franklin "Chuck" Spinney in 1982 confirms that war, though its subjects have nominally changed, continues to be a lucrative racket. With his "Spinney Report," the former Air Force engineer established that a system of graft and waste had taken hold of the Pentagon. Much to the chagrin of his superiors, Spinney went public and eventually caused a defense spending freeze in 1985. He alleged in 1990 that the Pentagon employs two principle underhanded tactics to ensure a generous federal budget, known as "front-loading" and "political engineering":

Front loading is the practice of planting seed money for new programs while downplaying their future obligations. This game, which is a clever form of the old-fashioned "bait-and-switch," makes it easier to sell high-cost programs to skeptics in the Pentagon and Congress. Political engineering is the strategy of spreading dollars, jobs, and profits to as many important congressional districts as possible. By making voters dependent on government money flows, the political engineers put the squeeze on Congress to support the front-loaded program once its true costs become apparent. Front loading and political engineering are about increasing the flow of money; the former starts the money flowing while the latter tries to lock the spigot open, and in American politics, control of the money spigot is power.^¹⁷⁴

The military's reaction to Spinney's allegations was dyspeptic. After he suggested that the Air Force cut costs through "a combination of base closings, consolidating squadrons, and relying more on reserve forces," the Air Force asserted that Spinney was neither "serious" nor "professional." After failing to keep his story under wraps, the Pentagon sought revenge by lowering Spinney's draft evaluation report grade; after Spinney confronted his superiors, they admitted that they were pressured to reduce his rating.^¹⁷⁵Defense spending continues to be a high-cost boondoggle.^¹⁷⁶

Given the preceding, one can ascertain that it is as inaccurate to presume that any military fighting abroad is necessarily done under the umbrella of protecting American freedom as it is to presume that all of the military's massive budget is strictly necessary for security, even though any stirred up resentment may foment out of whole cloth an opposing force which may then be cited as an incipient threat. We are in reality rendered less safe by the creation of conflict where none had previously existed--the September 11^thattacks were, after all, a response to our dalliances in the Middle East (specifically, the practice of maintaining military bases in Muslim countries, as well as our continued unquestioning support of Israel). It may be argued, though, that incitement notwithstanding, we have provoked an enemy which now threatens American security, and so must be resisted (Obama has raised this specter in speeches defending the escalation of the conflict in Afghanistan).

But there is no reason to believe that the Iraq insurgency in particular would "follow us home" any more than there was in the case of those we fought in Vietnam. Such a prospect requires a belief in the fanaticism and irrationality in the Iraqi which borders on racism. Though the prospect of another bin Laden rising from the ruins of occupied Iraq is an unsettling one, the proactive solution is not to remain occupiers against the wishes of the Iraqi people, thus stirring up further resentment, but to leave immediately and offer financial assistance through international organizations. If the damage has already been done, and a disaffected Iraqi later masterminds a similar terrorist attack in spite of our efforts, there would have been no stopping him or her except through the complete destruction of Iraq and its sons and daughters--the only way to ensure complete safety in a country of disgruntled and oppressed people. If the military is already inciting death and destruction through its presence in the name of American safety and at the expense of all other concerns, which is the rhetorical concession required to place great importance on ensuring that insurgents do not "follow us home," there is no consistent reason to oppose an escalation of violence bordering on a complete genocide of the Iraqi people (such is the flawed logic of the greater War on Terror, a part of which the Iraq War has been miscast).^¹⁷⁷The existence of other concerns indicates that the safest realistic option for both Iraq and America is withdrawal. The vicious cycle of military misadventure and bloody indigenous reprisals will end only when there is no military large enough to undertake such misadventures, or when there is no more indigenous population large enough to mount a reprisal.

It is only by defining the American way of life explicitly as that which is protected by the current U.S. military misadventures that this argument becomes true, and then only in a tautological sense. And if it is true, then the American way of life is inherently predatory and should be amended. If the invasion of Iraq was necessary to safeguard some defining aspect of American culture (say, the redistribution of tax dollars to private corporations with no incentive to bring the war to a swift conclusion), perhaps it is not fit to exist, and ought to be destroyed for the good of the world.

What we are advocating, then, is not a zealous isolationism, but a conscientious internationalism. The choice between turning wholly inward and continuing a predatory and imperialistic foreign policy is a false dichotomy born of a desire to excuse predation and imperialism.^¹⁷⁸Though currently crude and undeveloped, international law has a potential which far surpasses that of any single nation, no matter how powerful, to improve the condition of the planet. America's supporters call it "a city upon a hill," but a city is still small, even assuming it behaved in a manner worthy of emulation. A "state upon a mountain" is ever more influential, and a "world government upon a planet" could potentially be a model for any space-faring civilization which cares to behold it.

It is prudent now to discuss persons occupied in a more immediate and literal fashion: prisoners of the War on Terror. Stories of routine, systematic abuse at Abu Ghraib^¹⁷⁹and Guantánamo have touched off a debate over the rights of prisoners, with the Bush administration and its successor seeking to legally torture their charges over the protests of foreign governments, human rights groups, and intermittently, the courts. Advocates have proposed a hypothetical of their own to justify what they see as an intuitive use of torture in rare situations. In it, authorities have captured a terrorist who knows the location and access code of a large bomb which has been placed somewhere in a densely populated city.^¹⁸⁰As time winds down, and softer interrogation methods fail to yield useful information, they find themselves confronted with a difficult choice: torture the detainee in order to acquire the access code, or allow a large swath of the population to perish in its blast. Surely in a situation such as this, torture should be a legal option left to the discretion of the interrogators--another "necessary evil" which may be distasteful but is necessary to save a large number of lives. So goes the logic of the ticking time bomb scenario.

There are two major problems with this hypothetical as it relates to the real world. First, the disposition of this potential terrorist approaches contradiction. The terrorist must be high enough in the chain of command to have knowledge of the bomb's pass code, yet lacking in training to such a degree that torture has an immediate effect on his or her willingness to withhold information. If he or she had gone so far as to plant a bomb, it is likely that the terrorist would be willing to die for the cause, or at least to suffer extreme physical discomfort for it. On the other hand, if the captured terrorist was only a subordinate, he or she might be more likely to buckle under the pain, but would not be in possession of such sensitive information.

Second, there is a procedural inconsistency. On the off chance that the terrorist in question was distressed by torture to the extent that he or she immediately divulges a piece of information in order to stop it, a canny liar would still be able to string the interrogators along for a substantial period of time by simply giving them sequential false codes. The terrorist could run down the clock by offering numerous incorrect combinations, and recall that the clockisticking--the imminence of the detonation is what lends torture its urgent feasibility in this scenario. If the bomb was not scheduled to go off for a day or more, the terrorist might eventually run out of incorrect combinations, but in that case the bomb squad could have simply continued to guess themselves until hitting upon the right combination (this is assuming that the bomb was not wired to detonate upon the entry of an incorrect code; bombs designed in this way would also invalidate the ticking time bomb scenario) or used softer interrogation methods to the same effect, rendering torture entirely unnecessary in this hypothetical. The interrogators may also start with a less painful method of torture and then threaten more painful techniques for each false code, but this would be irresponsible if they are uncertain which particular level of pain would finally break the terrorist's will, let alone whether or not they would able to achieve that level by the time the bomb was set to detonate.^¹⁸¹

Because this scenario represents a last-ditch effort at justifying torture through time-based expediency, its invalidation renders all other instances of torture, which would only be less constrained by time, similarly invalidated. There can be no "enhanced interrogation" which is both justified and leisurely paced.

Sam Harris includes a defense of torture in The End of Faith which is encapsulated in this if-then statement: "if we are willing to drop bombs, or even risk that pistol rounds might go astray, we should be willing to torture a certain class of criminal suspects and military prisoners; if we are unwilling to torture, we should be unwilling to wage modern war."^¹⁸²Harris is correct, but perhaps not in the way he intended. His syllogism assumes that modern wars replete with collateral damage from bombing campaigns are themselves just, but the only just modern war is one of expedient self-defense, and such would require only the use of focused, discriminating force--invaders would have no sympathetic civilians to hide among (those who hide among their own civilians cannot be valid targets in any conceivable war of self-defense, because such a war would not be fought on their soil), and a preventive attack on an aggressive nation's gathered planes or tanks would be nowhere near civilian centers. Indeed, if we are unwilling to torture, we should be unwilling to cause damage (collateral or otherwise) which is not immediately necessary for our own (collective or otherwise) survival. Harris's assumption that collateral damage is always acceptable is further stretched when he discusses the probability of obtaining useful information from the subjects of interrogation:

Given the damage we were willing to cause to the bodies and minds of innocent children of Afghanistan and Iraq, our disavowal of torture in the case of Khalid Sheikh Mohammed seems perverse. If there is even one chance in a million that he will tell us something under torture that will lead to the further dismantling of Al Qaeda, it seems that we should use every means at our disposal to get him talking.^¹⁸³

It is this sort of thinking which shortly leads one to the conclusion that it is better to level the entirety of Iraq and salt the earth, lest there remain even a miniscule chance that one of its many disaffected later carries out a terrorist strike against the U.S. It is not the off chance of gleaning useful life-saving information which legitimates mistreatment of detainees, at any rate, but rather the near-certainty that doing so would result in a would-be victim of that detainee's plot being spared, and then it is only out of clear expediency (so goes the argument). There may well be one chance in a million that any random Muslim is a member of al-Qaeda, but torturing him or her on that off chance cannot be justified in terms of self-defense. As the paradoxical ticking time bomb scenario shows, time-constrained torture is a thing of fantasy (not surprising, then, is the frequency with which the purported successes of torture and other clandestine, abusive maneuvers are covered up with the statement "when we do our jobs well, you never find out about it").

What is not fantasy, though, is the success of alternative methods of interrogation. Disgusted by the brutality of his fellow interrogators, Air Force officer Matthew Alexander (a pseudonym) directed his team to adopt a softer approach in dealing with detainees, a method which evidently had considerable success:

I refused to participate in such practices, and a month later, I extended that prohibition to the team of interrogators I was assigned to lead. I taught the members of my unit a new methodology -- one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information. I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified (they're listed in the unclassified Field Manual), but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work (something that the Field Manual permits, under the concept of "ruses and trickery"). It worked. Our efforts started a chain of successes that ultimately led to Zarqawi.^¹⁸⁴

Another detainee in Alexander's charge was surprised that he wasn't being tortured, and told him "I thought you would torture me, and when you didn't, I decided that everything I was told about Americans was wrong. That's why I decided to cooperate."^¹⁸⁵Alexander has written a book, titled How to Break a Terrorist: The US Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq, which was heavily redacted by the Pentagon (on appeal, the author was able to reinstate the majority of the excised content). In April 2009, he further stated that torture had likely cost more American lives were lost in the September 11^thattacks: "The reason why foreign fighters joined al-Qa'ida in Iraq was overwhelmingly because of abuses at Guantánamoand Abu Ghraib and not Islamic ideology."^¹⁸⁶It seems then that the terrorists hate us not for our freedom, but for our own barbarism.

Finally, torture fails even at its stated goal: providing useful intelligence. It has long been accepted by many in the intelligence community that an individual in pain will confess to any crime conceivable and provide false information in order to secure respite from it (this is, after all, how it was discovered that so many targets of the Inquisition actually were, by their own admission, agents of Satan). Torturer's defenders will state that this is no great problem: the information can always be checked, and the mere chance that a confession may prove accurate justifies the process. But this presumes that the pursuit of false intelligence is harmless, when in fact it is likely to endanger the subject of false charges (recall that most detainees are acquired via hearsay) and provide a distraction from the pursuit of other, better intelligence (such as that which would have been divulged through the aforementioned rapport-building methods). It also presumes a conscientiousness in the torturer and his or her directors which is not likely to exist: in April 2009, it was revealed by the Senate Armed Services Committee that interrogators at Guantánamowere being pressured to find a link between Iraq and al-Qaeda:

"While we were there a large part of the time we were focused on trying to establish a link between al Qaida and Iraq and we were not being successful in establishing a link between al Qaida and Iraq," Army psychiatrist Maj. Paul Burney is quoted in the Senate report as saying about Guantánamo. "The more frustrated people got in not being able to establish this link ... there was more and more pressure to resort to measures that might produce more immediate results."^¹⁸⁷

The same report reveals that, rather than being adopted a last resort, the program of "enhanced interrogation" was being planned shortly after September 11^thby Donald Rumsfeld, who famously wrote about a proposed technique to force detainees to stand in stress positions for four hours at a time, "I stand for 8-10 hours a day. Why is standing limited to four hours?"^¹⁸⁸He joins Cheney (who referred to waterboarding as a fraternity prank, and called the Guantánamo facility a tropical resort) and other torture defenders in publicly playing down the severity of torture techniques, a rhetorical ploy which stands in incongruity with the stated justification of torture: that it is necessary to inflict extreme pain in order to protect U.S. citizens. If waterboarding is little more than a splash in the face, then how does it compel an obstinate detainee to confess to an imminent terrorist attack?

A disconcertingly high percentage of Americans regard the abuse of noncombatant detainees as justified, according to a 2008 World Public Opinion Survey:

A modest majority (53%) feels that torture should unequivocally not be allowed, while forty-four percent favor an exception for terrorists. Thirteen say torture should be allowed in general.

Support for making exceptions for torture in the case of terrorists has grown among Americans since 2006 (44%, up from 36%), while the majority opposing the use of torture in all cases has fallen slightly (53%, down from 58%).^¹⁸⁹

This is significantly below any other developed nation, and roughly on par with Iran (8% of Iranians feel that torture should be acceptable in general, 43% favor unambiguous rules against it, and 35% agree that an exception should be made for terrorists).^¹⁹⁰Absent a focused voice of opposition, the Bush administration has sought, somewhat unsuccessfully, to curb the detainees' right to habeus corpus, arguing that they are foreign nationals being held on foreign soil (Guantánamo Bay, Cuba) and as such are not privy to the rights of terrestrial-bound Americans. Detainees at this facility speak of the abuse suffered at the hands of the American guards, stories which rival the well-documented Abu Ghraib atrocity (another event which was initially covered up by the Army; it went so far as to revoke the security clearance of Sergeant Samuel Provenance in retaliation for his investigation into reports of prisoner abuse--including the rape of a minor--and subsequent remarks to the media) in the extent of suffering so produced.

The story of one such detainee, Canadian citizen Omar Khadr, just 15 years of age at the time of his detainment,^¹⁹¹is particularly horrific: a leaked video shows the prisoner sobbing and complaining that his eyesight and mobility have been compromised by the cruelty he has endured at Guantánamo ("I lost my eyes. I lost my feet. Everything!") and earlier at Bagram air base in Afghanistan (among them: stress positions, inflicted for hours at a time, often until Khadr soiled himself; prolonged periods of solitary confinement; threats of rape; denial of medical care; and the shackling of his hands to the cell floor).^¹⁹²Khadr's detainment is an archetypal case of the directionless brutality of torture, and it can be used to derive some lessons about reciprocal violence and the rights of those being held under suspicion of criminal activity.

Assume for the sake of illustration that an opportunity has presented itself to the young Khadr, early on in the period of his detainment. An interrogator who had menaced him with a rifle has carelessly left it behind within easy reach of the unrestrained detainee. The young man reasons that he can use this weapon to escape the facility, and picks it up. Finding that it is indeed loaded, he uses this most unlikely of windfalls to shoot his way out of the prison, escaping into the surrounding environs. The mere fact that a capable prisoner would likely attempt this escape is fairly obvious, but what is less immediately apparent is the fact he or she would morally empowered to do so under the doctrine of self-defense.

What sets Khadr's situation apart from that of a lawfully- and morally-held prisoner in the U.S. (this is not to say that all or even most U.S. prisoners are held as such) who finds a similar escape route is the morality of the detainment itself. Khadr, being held without trial and forced to endure tortuous interrogation, is not being rehabilitated, nor is has his detainment been established as immediately necessary to ensure the safety of society at large (as it would have been in the case of a convicted murderer). From Khadr's perspective, his handlers are no better than a gang of criminals who operate beyond the scope of the law, and Khadr's perspective is in this case the correct one--the legal justification for torture (and a redefinition of the term) was handed down unilaterally via memo by John Yoo at the Justice Department,^¹⁹³and it was not until 2004 (nearly two years after the Khadr was transferred) that Rasul v. Bush extended the right of U.S. courts to hear cases regarding the legality of holding foreign nationals at Guantánamo. Two years later, theHamdan v. Rumsfeld decision rendered the military commissions set up by the Bush administration unlawful and established that the Geneva Conventions were incorporated into U.C.M.J., yet subsequent legislation such as the Military Commissions Act (which removed the habeas corpus rights of non-U.S. citizens held at Guantánamo and included provisions for military tribunals) effectively sidestepped those inconvenient decisions.^¹⁹⁴Even the Detainee Treatment Act, created in the wake of the Abu Ghraib scandal to prevent U.S. agencies from engaging in torture, was sabotaged by subsequent amendments (one negated the Rasuldecision) and a signing statement by President Bush which explicitly preserved the executive's right to authorize torture for the putative sake of national security. In 2006, Hamdi v. Rumsfeld restored habeas rights to U.S. citizens who had been detained as unlawful combatants, but did not provide for access to federal courts. One of the final maneuvers in this Bush-era back-and-forth occurred in June 2008, when the Supreme Court ruled (in a close, contentious decision) that foreign suspects held at Guantánamo do indeed have the right to challenge their detainment in civilian courts (the administration responded to the Boumediene v. Bush ruling, which invalidated the Military Commissions Act, by sending detainees to Bagram, Afghanistian instead, where they were subjected to comparable horrors with no judicial oversight whatsoever--a maneuver which has been repeated by the Obama administration).^¹⁹⁵In review, Khadr was being held for a substantial length of time by what amounted to a gang of kidnappers, and what legal protections he and the other detainees have managed to secure remain fragile at best. Without the legitimating effect of habeas corpus rights, and absent any conceivable compelling rationale for his abuse, Khadr's detainment is both unlawful and immoral. It is thus his right to do whatever is necessary to escape the site of his indefensible torture.

Moving beyond Khadr's unique situation, we must ask if the targets of prison rape and beatings in U.S. prisons are not similarly empowered to do whatever is within their power to escape such brutalization.^¹⁹⁶

Any punishment above and beyond that which is immediately necessary to ensure the safety of society at large is hereby regarded as intolerable cruelty, motivated not out of a desire to ensure the protection of innocents but to see transgressors punished to no greater purpose. Those who find themselves on the receiving end of such punishments, whether they are actively committed by prison officials or the result of preventable inmate-on-inmate violence, are still afforded a right to self-defense: nothing can remove this right entirely, save a competing claim of self-defense by a criminal's victim. Its scope is merely redefined: prior to the commission of crime, one has the right to act freely as well as to protect oneself from bodily harm; a prison sentence only reduces the former right, while the latter remains intact. Only a reduction in the former is necessary to protect society at large from the criminal's machinations, so a reduction in the latter is unnecessary and unjust.^¹⁹⁷Yet this right is being abrogated through inaction and underfunding, transforming a substantial number of prison sentences into death sentences.

Another hypothetical is illustrative here: a physically weak prisoner in an overcrowded prison facility (of which there are many, especially in the state of California, where a federal judge ruled in August 2009 that overcrowding and a lack of medical care has resulted in woefully inhumane conditions in the jails; the judge directed state prisons to reduce the number of inmates by 40,000^¹⁹⁸) might find himself or herself the target of prison rape. If this prisoner should manage to acquire a weapon (such as an improvised shiv), it is within his or her right to use that weapon to prevent a rape, killing the would-be assailant if necessary. It also follows that it is the prisoner's right to escape his or her confines, should the opportunity present itself. For example, hypothesize that a dominant inmate has made it clear that he intends to commit the crime of rape on a prisoner. Should this endangered prisoner find the guards unwilling to help, would he or she not be morally permitted to dispatch those guards, should they attempt to block an escape? They are after all functionally aware that the prisoner would be brutalized, and their membership in an organization cannot mitigate their guilt in holding the prisoner captive while another inmate rapes or murders him or her. The same is true for those who ship detainees off to be tortured in other countries, as per the policy of extraordinary rendition.

In a similarity to the enclosure hypothetical raised in the previous chapter, the failure of society as a whole to sufficiently fund its prison system results concurrently in the right of those incarcerated within it to do whatever is necessary to escape any resultant brutalization, whether such violence springs from a fellow inmate or the guards. Implicit in the public's failure to adequately fund its prison system is the acceptance of prison rape and murder, and so the endangerment of the public by reemerging prisoners who rightfully escape that brutalization is a concern mitigated by the public's own complicity in such intolerable cruelty; likewise, implicit in the public's failure to adequately protest torture is the acceptance of Khadr's needless crippling, and so the endangerment of the public by reemerging detainees who escape that brutalization is a concern mitigated, again, by the public's own complicity in such intolerable cruelty.

Here, it is evident that there is an intuitive distinction between passive and active participation in the criminal's predicament with respect to the scope of his or her morally justified retributive response: the guards who actively detain the abused prisoner may be justifiably killed during his or her flight if necessary, whereas the general population which tolerates wanton endangerment of prisoners may be justifiably re-endangered in turn upon the prisoner's escape (but not murdered). Should we wish to ensure that prisoners remain such, it is thus prudent to ensure that their environment is a safe one.^¹⁹⁹

A prison which seeks to turn a profit has no incentive to rehabilitate its inmates, so it is also in the public's best interest to oppose the privatization of prison systems (and privatization in general^²⁰⁰). Private prisons have long attracted criticism (and bans in several states--although the number of Americans incarcerated in private prisons continues to rise^²⁰¹) for their failure to safeguard the rights of prisoners, all in the name of increasing profits. In one such instance, a prison in Jena, Louisiana run by the Wackenhut Corrections Corporation was investigated for the mistreatment of its teenage inmates, who were held in deplorable conditions with no access to amenities, medical care, education, drug addiction programs, or rehabilitation and were routinely abused and neglected by guards. According to a 2000 New York Times article, a judge ordered that the teens be removed from the facility; Justice Department officials blamed much of the cited mistreatment on the corporation's desire to cut costs on basic services such as food, education, and training programs for the guards.^²⁰²Arguments for privatization typically cite cost savings as the compelling rationale, but there has been no proof that private prisons are run more efficiency, and some compelling evidence that for-profit prisons provide an incentive to keep them filled--with little concern for who fills them.^²⁰³This flawed logic is the sort that fuels the War on Drugs, which has resulted in nonviolent offenders crowding jails and little else (aside from gang violence and a persistently rising drug use rate).^²⁰⁴

It is important to note that brutalization of prisoners does not in tandem result in a fatal loss of rights for the attacker. The right to kill one's handlers in the process of escaping is born purely of an enduring right to self-defense. Even those who claim to have abdicated their moral decision-making capabilities to a commander or prison warden are still protected under any human rights doctrine, even though they appear to have given up a crucial aspect of their humanity. One cannot forfeit his or her own humanity except as an explicitly given consent as an unencumbered (free of excessive compulsion) rational actor,^²⁰⁵and not as an implicit aspect of any particular decision. Thus one who tortures a detainee should only be murdered by that detainee if it is absolutely necessary to facilitate the prisoner's escape from torture; it would not be morally acceptable for Khadr to return months later and resume firing upon those who had previously harmed him. Thus the same principle which protects a retreating thief from being shot and killed by a physically unthreatened homeowner also protects those who at one point gave up their independence to act maliciously in the comported interests of an organization. It does not, however, excuse those malicious actions or mitigate their culpability in them.

Similarly, it may seem that political violence with the goal of precluding the commission of a greater violence (say, a U.S. President about to invade a non-threatening sovereign nation) is justified. However, the existence of a less-aggressive alternative--democratic participation, however lacking it may be--renders that violence unnecessary. It is preemptive violence, rather than preventive violence. This glimmer of hope in our functioning democracy is the one thing which renders political assassination unjustifiable via self-defense on another's behalf. Even in the case of George W. Bush's unpardonable invasion of Iraq, there was always a hope of opposition bringing forth impeachment proceedings, voting against the war, or employing backroom political deals to alter the course of policy. That these alternatives failed is a benefit of hindsight, not a clear justification of violence circa early 2003. The lesson of Iraq, however, is that these less violent alternatives are insufficient to avert war--the new administration has not significantly altered the conditions which were previously insufficient to head off the Iraq invasion. Any prospective preemptive war with Iran or Pakistan, then, must be opposed on the eve of war--violently if necessary.

Without the hope of pursuing alternate ways out of war, assassination becomes a legitimate means of putting a stop to unprincipled aggression abroad.^²⁰⁶It is thus in a warlike politician's best interest to encourage genuine participatory democracy (the counterfeit participatory democracy advanced by the Bush administration would not be sufficient in and of itself, but preexisting democratic institutions should have been sufficient, and Bush was unable to wholly dismantle them). For the same reason, attacks against U.S. soldiers preparing to leave for Iraq would not be moral--their deaths are not strictly necessary to avert war (though their comfort and happiness are not sacrosanct; thus it is permissible to spare no invective in preventing an individual from enlisting or shipping out).

If these less violent alternatives fail, attacks against military hardware would be justified prior to any attack on personnel or politicians. Sabotage was an important part of the French resistance against Nazi occupiers, and would well serve the conscientious objector to a war of U.S. aggression. Each sabotaged weapon and vehicle would reduce the military's war-making capacity and serve to defend the targets of its aggression. One plane destroyed is one plane removed from the arsenal of those who would use it to unnecessarily maim and kill others. One Humvee dismantled is one Humvee removed from this arsenal. One burning troop transport is that much more effective a statement of popular dissatisfaction at its intended use. A warehouse full of bombs which are overwhelmingly likely to kill an innocent woman or child (recall that 85% of such victims are women and children) can, and should, be sabotaged in order to minimize the unnecessary war dead.

The raised stakes of a prospective offensive war validate property destruction where it would otherwise be immoral.^²⁰⁷While we are bound to pursue the least violent course of action with regard to the individuals carrying out the war, property is not governed by any such restriction (after all, picketing and sit-ins disrupt the flow of business, effectively equaling the property costs incurred by the destruction of military hardware). As such, a soldier would be morally wrong to fire upon such a saboteur, provided that their vehicular targets are known by both parties to be unoccupied. A soldier who fires upon a saboteur intent on destroying a bomb which is almost certain to strike a civilian has, by any unbiased measure, only spilled unnecessary blood in order to spill other unnecessary blood.

We must be clear and precise here, though: if an assassination was necessary to avert the Iraq or Afghanistan invasions, or the continuing violent occupation of either nation, then such an action would have been justified via the doctrine of self-defense. Unfortunately for the conscientious citizen, the tendrils of corporate violence run deep in the nation's leadership, and even a highly (improbably) successful program of assassinations would be unlikely to avert the many programs of violence which are instated by those targets (and then by their successors, both at the behest of the same moneyed interests). A revolution might be sufficient, but in America, revolutionary thought is regrettably the province of far-right ideologues (or, given a legitimate leftist revolution, would be ruthlessly quashed by the same). The brand of harmful ideology which currently informs American values and priorities cannot be dislodged by a few bullets from the guns of well-intentioned assassins. Additionally, they would likely have but one chance to successfully fight against this corruption if they attempted to do so violently--in most situations, the assassin would be killed or imprisoned, precluding any further beneficial actions on their part. Any militia sufficiently large enough to bring about a true moral paradigmatic shift would be large enough to bring it about by other means, and thus duty-bound to do so. In summary, it is unwise to throw away one's life on targeting a single enforcer of this system when that life could be spent in the pursuit of educating others and turning them against it (this is not to discount the power of propaganda of the deed, merely to note that what is moral is not always what is expedient).

Finally, the mere imprisonment of an innocent person would not validate his or her self-defense killing in the name of escaping, provided that there is no immediate threat of torture or inmate-on-inmate violence. It is only when abuse is imminent that escape is morally validated--there are less aggressive alternatives (such as the appeals process), and it is the prisoner's responsibility to attempt those until such time as he or she is reasonably sure that abuse will occur. Similarly, it is not Khadr's legal limbo which validates his right to escape using violence, but the certainty that he will once again be abused during his tenure. Were the Guatanamo Bay facility staffed by peaceful guards who disregarded any order to torture detainees, then any violent breakout would be unjustified (as would the detainment--Khadr could still escape, but not by using violence). It is a shame then that these orders were not ignored.

The specific rights and responsibilities of participants (of varying degrees) in our overarching system will be discussed further in the following chapter.

Returning home, the soldier finds himself surrounded by complacency in his fellow citizens. He begins to resent having risked jail time in the name of moral certitude while American taxpayers remain idle contributors to the bombs still unjustly dropped by the many troops he was regretfully unable to reach in Iraq. The soldier's moral opprobrium soon results in another dialogue between himself and those whose taxes further enable the war effort. Yet he too is a taxpayer, and refusal to pay carries penalties of its own. Having already deserted, he is reticent to once again place his comfort at risk for what he soon realizes is a comparatively minor role in the conflict. A single American's tax contribution may at first glance seem negligible, but according to the Stockholm International Peace Research Institute, U.S. military expenditure accounted for roughly 46% of the world total in 2006 (the next highest amounts, which belonged to the U.K., France, China, and Japan, accounted for just 4-5% of the total).^²⁰⁸If unawareness did not excuse the soldier, ignorance of the massive budgetary allocation for defense spending should not excuse American citizens, who, in a diminished capacity, have the ability to alter this lopsided equation.

Where, then, does the responsibility cease when a governmental organization claims to operate with the blessing and financial support of its constituents, or indeed, as their sanctioned representatives abroad?

1Examples of selective prosecution in the post-war era abound. Japanese scientists involved with the horrific experiments of Unit 731 were given special deals in exchange for their data (though a great majority it was scientifically worthless), including a U.S.-assisted cover-up of the atrocities they committed against more than 10,000 prisoners. General Shiro Ishii and the unit's other overseers were never prosecuted for war crimes and enjoyed continued prominence in Japan in the following decades (Ishii died a pensioner). Many former Nazis were also protected, in exchange for their scientific knowledge or expertise in fighting communists (for an example, look to the case of Klaus Barbie, head of the Gestapo in occupied France, who was protected and moved around via ratlines by the C.I.A. for decades after the war. In the 1980s, he was involved in political repression and disappearances in Bolivia as well as illegal arms brokering), or for political reasons (West Germany in particular was lenient toward former Nazis: though the Soviet East Germany hosted far fewer former Nazis and was smaller in size, its sentences in the five years following the war made up roughly two-thirds of total former Nazis punished--the West went so far as to recognize concentration camp guard duty as a war service in 1951). Indeed, the very notion of a war crimes trial being conducted by a force of victors which afflicted upon its targets a level of unnecessary suffering which was moral only in comparison to the worst atrocities of the defeated should be sufficient to prove that single-state actors are not comparable to any duly- and justly- appointed international (rather than merely multilateral) court. The legal rules of war, such as they are, were drafted specifically to protect and exempt Western powers, and then applied piecemeal.

24As of mid-August 2009, the most recent development in these trials was an argument from Blackwater's defense team for the state assumption of the Blackwater employees' guilt. Jeremy Scahill elaborates:

In a motion filed August 12, Blackwater's lawyers asked federal Judge T.S. Ellis III to order "that the United States 'be substituted as the party defendant,' in place of all of the current Defendants." In his motion, Blackwater lawyer Peter White of the powerhouse firm Mayer Brown argued that the company was working for the State Department in Iraq and therefore was on official business when the alleged killings and injuries of Iraqis took place. White cites the 1988 Westfall Act, which prohibits suits against government employees for their actions on behalf of the government and states that the government will assume liability for any lawsuits against employees.

Federal tort law defines "employees" in this context as "persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." The fact that the defendants are "corporate entities" in this instance, White claims, "does not alter that conclusion."

If this gambit is successful, Scahill writes, the case is rendered essentially lost. Source: Jeremy Scahill, "Blackwater: CIA Assassins?," 20 August 2009, accessed on the website of The Nation at http://www.thenation.com/doc/20090831/scahill1, 20 August 2009.

26Jim McElhatton, "New Deal for Blackwater," 17 March 2009, accessed on the website of The Washington Times at http://www.washingtontimes.com/news/2009/mar/17/new-deal-for-blackwater-bucks-decision-by-iraq/, 22 March 2009.

Jeremy Scahill writes further in "US Still Paying Blackwater Millions" that although the State Department claims to be phasing out Blackwater's presence in Iraq, the company continues to receive lucrative contracts:

Despite its scandal-plagued track record, Blackwater (which has rebranded itself as Xe) continues to have a presence in Iraq, trains Afghan forces on US contracts and provides government-funded training for military and law enforcement inside the United States. The company is also actively bidding on other government contracts, including in Afghanistan, where the number of private contractors is swelling. According to federal contracting records reviewed by The Nation, since President Barack Obama took office in January the State Department has contracted with Blackwater for more than $174 million in "security services" alone in Iraq and Afghanistan and tens of millions more in "aviation services."

Of Blackwater's presence in Afghanistan, Scahill writes,

The Blackwater aviation contract for Afghanistan is described as "Air Charter for Things" and "Nonscheduled Chartered Passenger Air Transportation." The military signed an additional $1.4 million contract that day for "Nonscheduled" passenger transportation in Afghanistan. These payments are part of aviation contracts dating back to the Bush era, and continued under Obama, that have brought Blackwater tens of millions of dollars in Afghanistan since January. In May, Blackwater operatives on contract with the Department of Defense allegedly killed an unarmed Afghan civilian and wounded two others. Moreover, Presidential Airways [part of Blackwater] is being sued by the families of US soldiers killed in a suspicious crash in Afghanistan in November 2004.

Source: Jeremy Scahill, "US Still Paying Blackwater Millions," 7 August 2009, accessed on the website of The Nation at http://www.thenation.com/doc/20090817/scahill2, 8 August 2009. Brackets not in original.

31The parallels between the Persian Gulf War and the Iraq War are numerous. Both were sold to the public through a willfully deceptive campaign (a young girl named Nayirah, who was later identified as the daughter of the U.S. ambassador to Iraq, gave a public testimony in 1990--arranged by Bush-connected firm Hill and Knowlton--concerning the killing of hundreds of Kuwaiti babies by Iraqi soldiers, testimony which was later proven false), and the roots of George W. Bush's personal vendetta against Hussein may be found partially in the earlier attempt against his father's life. The desperation of the Iraqi people, and hence their inability to oppose Hussein (if this was indeed their desire or responsibility), was to a large degree due to the devastating economic sanctions maintained in the wake of the 1991 Gulf War. Further, the American promise, never fulfilled, to assist Kurdish rebels in a planned uprising against Hussein's government in the war's final days led to a brutal crackdown which further subjugated the populace and cemented Hussein's iron grip. Source: "Deception on Capital Hill," 15 January 1992, accessed on the website of The New York Times at http://query.nytimes.com/gst/fullpage.html?res=9E0CEEDD1338F936A25752C0A964958260, 14

January 2009.

There is another, more unctuous parallel: the disproportionate brutality of the U.S. military, which is the subject of this chapter's remainder. William Blum recounts the carnage of the "Highway of Death," the name given to Highway 80 (Kuwait to Basra) after military personnel bombed a column of retreating Iraqi forces, civilians, and Kuwaiti hostages, in KillingHope: U.S. Military and C.I.A. Interventions Since World War II(page 336):

At the very end, when the hungry, wounded, sick, exhausted, disoriented, demoralized, ragged, sometimes barefoot Iraqi army, which had scarcely shown any desire to fight, left Kuwait and headed toward Basra in southern Iraq, Saddam tried to salvage a pathetic scrap of dignity by announcing that his army was withdrawing because of "special circumstances". But even this was too much for George Bush to grant. "Saddam's most recent speech is an outrage," declared the president, forcefully. "He is not withdrawing. His defeated forces are retreating. He is trying to claim victory in the midst of a rout."

This could not be permitted. Thus it was that American air power in all its majesty swept down upon the road to Basra, bombing, rocketing, strafing everything that moved in the long column of Iraqi military and civilian vehicles, troops and refugees. The nice, god-fearing, wholesome American GIs, soon to be welcomed as heroes at home, had a ball ... "we toasted him" ... "we hit the jackpot" ... "a turkey shoot" ... "This morning was bumper-to-bumper. It was the road to Daytona Beach at spring break ... and spring break's over."

Again and again, as loudspeakers on the carrier Ranger blared Rossini's "William Tell Overture", the rousing theme song of the Lone Ranger, one strike force after another took off with their load of missiles and anti-tank and anti-personnel Rockeye cluster bombs, which explode into a deadly rain of armor-piercing bomblets; land-based B-52s joined in with 1000-pound bombs. ... "It's not going to take too many more days until there's nothing left of them." ... "shooting fish in a barrel" ... "basically just sitting ducks" ... "There's just nothing like it. It's the biggest Fourth of July show you've ever seen, and to see those tanks just 'boom,' and more stuff just keeps spewing out of them ... they just become white hot. It's wonderful."

Another parallel: Blum writes that on the eve of war (page 327),

Washington pushed a dozen resolutions through the Security Council condemning Iraq, imposing severe economic sanctions, and getting "authorization" to wage war. Only Cuba and Yemen voted against any of them. When Yemen's delegate received some applause for his negative vote on the key use-of-force resolution of 29 November, US Secretary of State Baker, who was presiding, said to his delegation: "I hope he enjoyed that applause, because this will turn out to be the most expensive vote he ever cast." The message was relayed to the Yemenis, and within days, the tiny Middle-East nation suffered a sharp reduction in US aid.

Source: William Blum, KillingHope: U.S. Military and C.I.A. Interventions Since World War II(London: Zed Books, 2003). Ellipses in original.

This was not an isolated incident--the U.S. targeted Iraqi civilians and civilian infrastructure deliberately during the course of the war (via a 1991 Washington Post article):

Though many details remain classified, interviews with those involved in the targeting disclose three main contrasts with the administration's earlier portrayal of a campaign aimed solely at Iraq's armed forces and their lines of supply and command. Some targets, especially late in the war, were bombed primarily to create postwar leverage over Iraq, not to influence the course of the conflict itself. Planners now say their intent was to destroy or damage valuable facilities that Baghdad could not repair without foreign assistance. Many of the targets in Iraq's Mesopotamian heartland, the list of which grew from about 400 to more than 700 in the course of the war, were chosen only secondarily to contribute to the military defeat of Baghdad's occupation army in Kuwait. Military planners hoped the bombing would amplify the economic and psychological impact of international sanctions on Iraqi society, and thereby compel President Saddam Hussein to withdraw Iraqi forces from Kuwait without a ground war. They also hoped to incite Iraqi citizens to rise against the Iraqi leader.

Because of these goals, damage to civilian structures and interests, invariably described by briefers during the war as "collateral" and unintended, was sometimes neither. The Air Force and Navy "fraggers" who prepared the daily air-tasking orders in Riyadh, Saudi Arabia, took great care to avoid dropping explosives directly on civilians -- and were almost certainly more successful than in any previous war -- but they deliberately did great harm to Iraq's ability to support itself as an industrial society.

The worst civilian suffering, senior officers say, has resulted not from bombs that went astray but from precision-guided weapons that hit exactly where they were aimed -- at electrical plants, oil refineries and transportation networks. Each of these targets was acknowledged during the war, but all the purposes and consequences of their destruction were not divulged.

The defense offered by the Air Force for these actions asserted that the Iraqis were wholly complicit in the invasion of Kuwait and thus valid targets (the article quotes a senior Air Force officer: "The definition of innocents gets to be a little bit unclear…they do live there, and ultimately the people have some control over what goes on in their country."). Source: Barton Gellman, "Allied Air War Struck Broadly in Iraq," 23 June 1991, accessed on the website of Global Policy Forum at http://www.globalpolicy.org/component/content/ article/169/36375.html, 20 August 2009. Ellipses not in original.

34From a December 2005 Nationarticle by Jeremy Scahill:

The Falluja offensive, one of the bloodiest assaults of the US occupation, was a turning point. In two weeks that April, thirty marines were killed as local guerrillas resisted US attempts to capture the city. Some 600 Iraqis died, many of them women and children. Al Jazeera broadcast from inside the besieged city, beaming images to the world. On live TV the network gave graphic documentary evidence disproving US denials that it was killing civilians. It was a public relations disaster, and the United States responded by attacking the messenger.

Just a few days before Bush allegedly proposed bombing the network, Al Jazeera's correspondent in Falluja, Ahmed Mansour, reported live on the air, "Last night we were targeted by some tanks, twice...but we escaped. The US wants us out of Falluja, but we will stay." On April 9 Washington demanded that Al Jazeera leave the city as a condition for a cease-fire. The network refused. Mansour wrote that the next day "American fighter jets fired around our new location, and they bombed the house where we had spent the night before, causing the death of the house owner Mr. Hussein Samir. Due to the serious threats we had to stop broadcasting for few days because every time we tried to broadcast the fighter jets spotted us we became under their fire."

Source: Jeremy Scahill, "The War on Al Jazeera," 1 December 2005, accessed on the website of The Nation at http://www.thenation.com/doc/20051219/scahill, 4 November 2008. Ellipses in original.

The U.S. military has also held an Iraqi journalist named Ibrahim Jassam for nearly a year without charging him with a crime. Jassam was able to capture many images of violence in and around Baghdad, with a closeness deemed suspicious by U.S. authorities. Arrests now require a warrant issued by the Iraqi government, but Jassam was captured before the new regulation went into effect. Nevertheless, an Iraqi court recommended he be released in November 2008; as of late July 2009, he remains in custody. Jassam's case, it seems, is emblematic of the treatment of journalists in Iraq: according to Quil Lawrence, writing for N.P.R., "Iraqi journalists have been regularly detained by U.S. forces through the course of the American occupation; several have been killed when mistaken for insurgents. According to Mohamed Abdel Dayem, of the New York-based Committee to Protect Journalists, Jassam is the only one still in U.S. custody." Source: Quil Lawrence, "U.S. Military Holds Iraqi Journalist Without Charge," 20 July 2009, accessed on the website of National Public Radio at http://www.npr.org/templates/story/story.php?storyId =106640661, 20 July 2009.

36Seymour Hersh, "Moving Targets," 15 December 2003, accessed on the website of The New Yorker athttp://www.newyorker.com/archive/2003/12/15/031215fa_fact, 15 September 2009.

For an example of this strategy in practice, see "Winning Hearts and Minds," by David Hilfiker, a 2004 article which details the early policy of abusive behavior by U.S. forces in Iraq. Iraqis were routinely arrested in violent nighttime raids, often on little more than a "suspicion" of having worked with the insurgency, a criterion which Lieutenant Colonel Nate Sassaman, commander of a military base in the Sunni Triangle, admits to Hilfiker could be applied to any Iraqi male over the age of 18. Sassaman, who was interviewed by Hilfiker and several Iraqi lawyers, lied about the number of detainees held at the base (as well as the length of their stay, which he claimed was less than 24 hours), made a prejudiced statement about Muslims, and later threatened the assembled lawyers. He would soon make good on the threat, staging a nighttime raid on the home a lawyer named Mohaned:

Most of my empathy for Col. Sassaman dissolved the next day, however, when Sami and Mohaned's father paid us an unexpected visit. Since phones still don't work in Iraq, they had to drive the hour down to Baghdad themselves to contact us. At 4 AM that morning, they told us, Sassaman's men had staged a raid in Abu Hishma, a town over ten miles from the base, that Sassaman had previously ordered encircled with razor wire to pressure inhabitants to give information about insurgents. Perhaps a hundred soldiers in fifteen to twenty vehicles entered the town, surrounded Mohaned's father's house, broke down the door, and smashed up some of the family's belongings. They took Mohaned and his five brothers at gunpoint out to the yard, handcuffed them, put hoods on their heads, had them sit in the rain while the house was searched, and then carted them off to the base. Later in the morning, Sami and Mohaned's father went (courageously, I thought) out to the base to inquire. Sassaman, according to the two of them, was still in muddy boots and fatigues, apparently from participating himself in the raid. He told Sami that he wanted to meet with the HROI soon and that he trusted members of CPT to be present. Exactly what kind of trust did he now expect? Mohaned, like other detainees, is likely to disappear from his world for months.

Source: David Hilfiker, "Winning Hearts and Minds," 29 January 2004, accessed on the website of TomDispatchat http://www.tomdispatch.com/post/1218/david_hilfiker_i_m_not_into_the_detainee_

business_, 2 December 2008.

45Though there is a legal mechanism for billing civilian corporations, a Defense Department inspector general audit in May 2009 found that the billing option was rarely pursued due to a lack of standardization and confusion regarding the status of contractor and civilian patients:

The IG found that military medical units had incomplete or inaccurate records. For example, in a sampling of about 200 records, 13 percent incorrectly identified patients as contractors, 22 percent had duplicate entries, and 25 percent showed discrepancies between computer and paper records.

Fully one third of the Baghdad hospital's outpatients are contractors, the inspector general found. Though their presence has become burdensome, even an appeal by General David Petraeus has produced little in the way of results:

In May 2007, Gen. David H. Petraeus, then the commander of Multi-National Force-Iraq, wrote the Pentagon that the medical facilities were under increased demands because of the treatment provided to contractors and that they were consuming "precious resources that should be used in providing care to coalition military forces." The reply was that Defense officials would look into the matter and explore options. As of [April 2009], according to the IG report, no alternative option had been put forward.

Source: Walter Pincus, "Contractors Using Military Clinics," 7 May 2009, accessed on the website of The Washington Post at http://www.washingtonpost.com/wp-dyn/content/article/2009/05/06/

AR2009050603949.html, 8 May 2009. Brackets not in original.

52Any computation of purported savings which did exist would be immediately suspect, given the many financial improprieties at the Department of Defense. According to a 2005 inspector general of the Defense Department report, "the DoD financial management systems cannot provide adequate evidence supporting various material amounts on the financial statements," and was found to be in non-compliance with the Government Performance and Results Act:

Congress enacted the Government Performance and Results Act of 1993 (The Act) to establish strategic planning and performance measurement in the Federal Government. Strategic plans, annual performance plans, and annual program performance reports comprise the main elements of The Act.

DoD did not fully comply with The Act and subsequent implementation guidance in Office of Management and Budget Circular A-11, "Preparation, Submission, and Execution of the Budget." Specifically, DoD did not have a compliant strategic plan for FY 2005 because it designated the Quadrennial Defense Review report as its Government Performance and Results Act strategic plan, without consideration of The Act's requirements.

The report also identified problematic weaknesses elsewhere:

In addition, reviews of five DoD financial management systems and Defense Information Systems Agency Computing Services identified several common vulnerabilities. Controls over security planning, access controls, and software controls did not comply with DoD information assurance requirements. As a result, potential system and procedural vulnerabilities threatened the confidentiality, integrity, and availability of financial data.

Source: "Independent Auditors' Report on the Principal Statements," 12 November 2005, accessed on the website of The U.S. Department of Defense at http://www.defenselink.mil/comptroller/par/fy2005/

FY05%20PAR_IAR_part3.pdf, 12 January 2009.

53That is, advantages to taxpayers--those who wish to avoid oversight find many compelling reasons to privatize. The Wikileakswebsite made available a confidential report detailing the privatization and militarization of intelligence services in Washington State. The Washington Joint Analytical Center, a junction point for the sharing of intelligence between various agencies, has overseen the use of private and military interrogators (many of whom had experience at Guantánamo and other environments in which many stateside regulations do not apply) for domestic intelligence work. The document details the revolving door between private and state civilian and military intelligence apparatuses which has served to hamper oversight. Source: Julian Assange, "The Spy who Billed Me Twice," 29 July 2009, accessed on the website of Wikileaksat http://wikileaks.org/wiki/The_spy_who_billed_me_twice, 28 August 2009.

This practice had been previously touted by Army Military Police School (in a separate confidential document called "Concept of Operations (CONOPS) for Police Intelligence Operations (PIO)") as a method to circumvent such pernicious regulations as those which prevent the creation of dossiers on anti-war protestors by the military and other posse comitatus restrictions (page 24-25):

A fusion cell located within the garrison staff provides a unique service that can address the complexities of the threat to a military community and installation and be an asset to the garrison and local civilian community. It has the ability to work closely with multiple local, federal, and DoD agencies. It does not have constraints that are emplaced on MI activities within the US, because it operates under the auspice and oversight of the police discipline and standards. At the garrison level, the fusion cell is static (non-deploying) which provides a level of continuity that allows for in-depth institutional knowledge of threat, physical and social environs, as well as long-term relationships with local and federal law enforcement agencies. A garrison fusion cell can also be a flexible analytical cell that can grow to form focused, ad hoc, threat-specific cells to address, prevent, or react to a specific hazard.

Vignette: A Stryker Brigade Combat Team (SBCT) was preparing to move equipment to a port of embarkation (POE) for deployment. The shipment required the movement of 300 vehicles across eight law enforcement jurisdictions. Based on previous threat fusion expertise, the garrison's force protection (FP) fusion cell was uniquely qualified to be the lead intelligence producer to support the movement. The fusion cell coordinated police information, intelligence and civilian security with over 22 local, federal, and DoD agencies. The fusion cell produced in-depth analysis of the threat to the SBCT equipment and advised the SBCT and garrison commanders on protection. The coordinated effort gave law enforcement agencies the knowledge to identify and prevent disruptive actions by violent protesters. The operation was considered by Corps leadership to be a watershed event for in-depth involvement of a garrison-based FP fusion cell in support of unit deployments. Moreover, the Corps headquarters integrated the fusion cell into other operations where the G2 is constrained by intelligence oversight rules, or there is a need for police information / intelligence assessments and analysis.

Source: "Concept of Operations (CONOPS) for Police Intelligence Operations (PIO)," 4 March 2009, accessed on the website ofWikileaksat http://88.80.16.63/leak/us-army-conops-police-2009.pdf, 28 August 2009.

56Ibid., 256.

One reason for the delay in oil manufacturing was the mishandling by Halliburton of a contract to rebuild an oil pipeline under the Tigris River which had been destroyed by American bombs. Though Halliburton had used the entire $75.7 million budget, work had not proceeded by 2006 because of the corporation's decision to dig in unsuitable terrain (terrain which, according to an S.I.G.I.R. report, had been specifically ruled out by experts to Halliburton officials). According to a 2006 New York Times article, the mishandling was symptomatic of the larger reconstruction failure:

The company received a slap on the wrist when it got only about 4 percent of its potential bonus fees on the job order that contained the contract; there was no other financial penalty.

In interviews, two of the top Army Corps commanders who have had involvement at Al Fatah were reluctant to criticize the work done by KBR in Iraq. That was also the case in February when the Army Corps agreed to pay Halliburton most of its fees on a large fuel supply contract in Iraq, even though Pentagon auditors had found more than $200 million of the charges were questionable.

Source: James Glanz, "Rebuilding of Iraqi Pipeline a Disaster Waiting to Happen," 25 April 2006, accessed on the website of The New York Times at http://www.nytimes.com/2006/04/25/world/middleeast/

25pipeline.html, 18 July 2009.

60As of 2009, the problem persists: of the 90,000 showers in operation in Iraq, roughly 8,000 were found to have major electrical problems as part of an ongoing inspection (only 25,000 had yet been inspected as of July 2009). Source: "For Troops in Iraq, Shower Still may be Fatal," 26 March 2009, accessed on the website of MSNBCat http://www.msnbc.msn.com/id/29891090/, 17 July 2009.

A total of nine soldiers have died due to shoddy electrical work by contractors in Iraq, though it seems that accountability will elude them: in July, Texan and Floridian judges threw out a lawsuit against K.B.R. which alleged that they were responsible for the death of Sgt. Christopher Everett, who died while using a power washer in Iraq. In a similar ongoing lawsuit, this one concerning a shower electrocution, K.B.R.'s denial of responsibility may prove less sustainable:

Monday's report from the Pentagon's inspector-general criticized the company in the death of another soldier, Staff Sgt. Ryan Maseth, who was electrocuted in his shower in his Baghdad quarters.

The report found that "multiple systems and organizations failed," leaving Maseth "exposed to unacceptable risk." It concluded that a water pump installed by KBR was not grounded, leading to Maseth's electrocution when it short-circuited, and the company did not report improperly grounded equipment during routine maintenance.

But it also found that Maseth's commanders failed to ensure renovations to the palace had been properly done and the Army did not set electrical standards for jobs or contractors.

Source: Abbie Boudreau and Scott Bronstein, "Claims Against Contractor Dismissed in Soldier's Death," 29 July 2009, accessed on the website of Cable News Network at http://edition.cnn.com/2009/CRIME/07/28/ military.electrocutions.kbr/, 29 July 2009.

67This essentially describes Colin Powell's 2007 warning about an incipient "terror-industrial complex." Contrite, Powell argues in aGQinterview that the threat of terrorism is routinely exaggerated in order to serve political and monetary interests by creating the illusion of a threat which must be diligently (and expensively) fought (page 2):

Let's show the world a face of openness and what a democratic system can do. That's why I want to see Guantánamo closed. It's so harmful to what we stand for. We literally bang ourselves in the head by having that place. What are we doing this to ourselves for? Because we're worried about the 380 guys there? Bring them here! Give them lawyers and habeas corpus. We can deal with them. We are paying a price when the rest of the world sees an America that seems to be afraid and is not the America they remember.

You can drive up the road from here and come to a spot where there is a megachurch over here, a little Episcopal church over there, a Catholic church around the corner that's almost cathedral-size, and between them is a huge Hindu temple. There are no police needed to guard any of this. There are not many places in the world where you would see that. Yes, there are a few dangerous nuts in Brooklyn and New Jersey who want to blow up Kennedy Airport and Fort Dix. These are dangerous criminals, and we must deal with them. But come on, this is not a threat to our survival! The only thing that can really destroy us is us. We shouldn't do it to ourselves, and we shouldn't use fear for political purposes--scaring people to death so they will vote for you, or scaring people to death so that we create a terror-industrial complex.

Source: Walter Isaacson, "GQ Icon: Colin Powell," October 2007, accessed on the website of GQat http://www.gq.com/news-politics/newsmakers/200709/colin-powell-walter-isaacson-war-iraq-george-bush, 30 October 2008.

74Tom Engelhardt, writing about the history of justification for the Iraq invasion and occupation, summarizes the late-stage American outlook on the necessity of maintaining forces there:

Now, with those 130,000 troops still there, not to speak of the scads of rent-a-guns and private contractors, with that overstuffed, overstaffed embassy the size of the Vatican built for 1,000 "diplomats," with that series of major bases (which the Pentagon used to call, charmingly enough, "enduring camps") still well occupied, with significant numbers of Iraqis and small numbers of Americans dying each month, with millions of Iraqis still internal or external refugees, with the land devastated, and basic services hardly restored, with ethnic tensions still running high, and a government quietly allied to Iran in place in Baghdad backed by a 250,000-man military, with an American withdrawal still officially years off, and "withdrawal" itself a matter of definition, no one even bothers to offer the slightest justification for being in Iraq. After all, why would explanations be necessary when we're getting ready to leave?

If you don't believe me, go hunting for an official explanation today. Why are we in Iraq? Because we're there. Because the Iraqis need us. Because something terrible would happen if we left precipitously. So we still occupy Iraq and no one even asks why.

The article also describes the aforementioned counterfeit obligation as it relates to the state of the Iraqi military, which has been sabotaged by the occupation and simultaneously cited as a reason to remain occupiers:

Until relatively recently, the Iraqis were functionally not permitted to take to the skies. Now, the lack of that air force will surely come to the fore as an excuse for why any American "withdrawal" will have to have caveats and qualifications -- and why, if ours proves to be a non-withdrawal withdrawal, it will be their fault.

Source: Tom Engelhardt, "Biking out of Iraq," 13 August 2009, accessed on the website of TomDispatchat http://www.tomdispatch.com/post/175106, 20 August 2009.

75Given the penchant for military recruiters to employ increasingly desperate (nearly $25,000 is spent courting each new hire) and underhanded methods of recruitment, this error in judgment is likely to be widespread. See for example the case of Sgt. Glenn Marquette, who threatened a prospective enlistee with jail time if he did not show up for a meeting which was stipulated by an explicitly non-binding contract, or that of Sgt. Thomas Kelt, who in 2005 threatened another potential recruit who had not yet signed any binding document (Kelt said, "you fail to appear and we'll have a warrant"). Kelt was reprimanded, but was later promoted and now heads a different recruiting station. Source: "Army Recruiter Used Scare Tactics," 28 July 2008, accessed on the website of America Online News at http://news.aol.com/article/army-recruiter-used-scare-tactics/106098, 10 October 2008.

It is not only such underhanded tactics which are objectionable--the military employs overt pressure and targeted (at those least able to resist, such as petty criminals, who are given the choice between a jail sentence and a stint in the military for offenses as minor as marijuana possession, and the poor, who are being forced by recession to join up) incentives to entice new recruits as well. In February 2009, the head of Army recruitment, Lt. Gen. Benjamin C. Freakley, announced that a new program will allow temporary immigrants to attain citizenship in less than six months in return for military service. Despite providing waivers (for medical conditions and criminal records) for nearly one in five new recruits last year, the military is still stretched thin; Pentagon analysts expect the program to attract a large number of new recruits. Although seemingly generous, the program will revoke citizenship for any immigrants who do not honorably complete their service. Source: Julia Preston, "U.S. Military Will Offer Path to Citizenship," 14 February 2009, accessed on the website of The New York Times at http://www.nytimes.com/2009/02/15/us/ 15immig.html, 15 February 2009.

Prospective female enlistees have even been raped by recruiters who tell them that a sexual favor is necessary for their application. A 2006Associated Press article highlights the problem:

More than 100 young women who expressed interest in joining the military in the past year were preyed upon sexually by their recruiters. Women were raped on recruiting office couches, assaulted in government cars and groped en route to entrance exams.

A six-month Associated Press investigation found that more than 80 military recruiters were disciplined last year for sexual misconduct with potential enlistees. The cases occurred across all branches of the military and in all regions of the country.

Source: Amy S. Clark, "Sexual Abuse by Military Recruiters," 20 August 2006, accessed on the website of CBS News at http://www.cbsnews.com/stories/2006/08/19/national/main1913849.shtml, 20 July 2009.

81Glenn Greenwald of Salonprovides a partial list of terrorism suspects who have been successfully tried and convicted by U.S. civilian courts: Sheik Omar Abdel Rahman, Zacarias Moussaoui, Richard Reid, Jose Padilla (who had been previously abused in a military facility), Iyman Faris, Ali Saleh al-Marri, Masoud Khan, and John Walker Lindh. He proceeds to dismantle the commonly-accepted wisdom that extrajudicial detainment in military prisons, while regrettable, was necessary to prevent another terrorist attack on the U.S.:

The crime for which Omar Abdel Rahman was convicted and for which he's currently serving a life sentence in Colorado is the February 26, 1993 bombing of the World Trade Center, of which Rahman was the alleged "mastermind." That terrorist attack took place just seven weeks after Bill Clinton was inaugurated, but after that attack -- to use the Beltway parlance -- Clinton kept us safe, for the rest of his presidency. No more foreign Terrorist attacks on the Homeland. It wasn't until Clinton left the Oval Office and George Bush became President were Islamic Terrorists able to strike the Homeland again.

Source: Glenn Greenwald, "The Newest Fear-Mongering Campaign from the Right and the Media," 23 January 2009, accessed on the website of Salonat http://www.salon.com/opinion/greenwald/2009/01/23/ al_qaeda/, 23 January 2009.

Further dispelling the myth of total terrorism prevention is the widely-documented ease with which journalists have been able to smuggle various forms of contraband onto commercial flights (as well as several post-September 11^thinstances of successful terrorist attacks, such as the anthrax letters). Other logical problems with the proposition that absolute safety is worth any sacrifice will be discussed later in the chapter.

83Ken Ballen and Peter Bergen, "The Worst of the Worst?," October 2008, accessed on the website of Foreign Policy at http://www.foreignpolicy.com/story/cms.php?story_id=4535, 24 October 2008.

The Pentagon claims that 47 of the currently released Guantánamo detainees are suspected to have taken up arms against the United States (an additional 27 are confirmed to have done so), according to a leaked report. However, this figure is highly suspect, given that at least one ex-detainee, Afghani Haji Sahib Rohullah Wakil, is now a respected tribal elder, representing his home district of Kunar and meeting frequently with the U.S.-backed Karzai government. Wakil has always maintained that he was innocent of the charges:

According to Defense Department documents from Wakil's Combatant Status Review Board hearing at Guantanamo, the United States charged that Wakil helped members of al Qaida escape from Kunar into neighboring Pakistan. The U.S. also charged that he obtained weapons that were used in a rocket attack on the main military base in Kunar.

The charges, the documents say, were based on a source.

In response, Wakil told the review panel he thought that a political enemy, whom he didn't identify, had set him up. He denied working on behalf of al Qaida; instead, he said he suspected that an al Qaida operative had assassinated his uncle.

Source: Nancy A. Youssef, "Where's Pentagon 'Terrorism Suspect'? Talking to Karzai," 7 July 2009, accessed on the website ofMcClatchyat http://www.mcclatchydc.com/226/story/71434.html, 9 July 2009.

95Tim Golden, "In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths," 20 May 2005, accessed on the website of The New York Times at http://www.nytimes.com/2005/05/20/international/asia/ 20abuse.html, 1 October 2008. Brackets not in original.

Beyond the singular case of Dilawar, the government has concluded that the majority of detainees held at Guantánamo Bay (as of early 2006) had not in fact ever participated in a hostile act against the United States. This data comes from an analysis of the Combatant Status Review Board Letters performed by Seton Hall professor Mark Denbeaux and his son Joshua, an attorney for two of the Guantánamo inmates, titled "Report on Guantánamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data." The report's findings:

1. Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.

2. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% have no definitive affiliation with either al Qaeda or the Taliban.

3. The Government has detained numerous persons based on mere affiliations with a large number of groups that, in fact, are not on the Department of Homeland Security terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably. Eight percent are detained because they are deemed "fighters for;" 30% considered "members of;" a large majority - 60% - are detained merely because they are "associated with" a group or groups the Government asserts are terrorist organizations. For 2% of the prisoners, a nexus to any terrorist group is not identified by the Government.

4. Only 5% of the detainees were captured by United States forces. 86% of the detaineeswere arrested by either Pakistan or the Northern Alliance and turned over to United States custody. This 86% of the detaineescaptured by Pakistan or the Northern Alliance were handed over to the United States at a time in which the United States offered large bounties for capture of suspected enemies.

5. Finally, the population of persons deemed not to be enemy combatants - mostly Uighers - are in fact accused of more serious allegations than a great many persons still deemed to be enemy combatants.

Source: Mark Denbeaux and Joshua Denbeaux, "Report on Guantánamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data," February 2006, accessed on the website ofSocial Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885659, 5 May 2009.

104Former Guantánamo guard Spc. Brandon Neely, who in December 2008 came forward with testimony about the atrocities he witnessed throughout his tour of duty during the camp's early days, echoed Curtis's comment:

I know for a fact one or two people, including myself, felt sorry for these people--and very ashamed of what we were taking part in. But what could we say? If we questioned anything or talked out against what we thought was wrong, we would have been ridiculed. And who knows what else we would have had to face. So we kept our mouths shut and went work every day, counting down the days until we could return home to our families and just could forget about this time we spent in Guantanamo.

Neely is referring to instances such as the following:

On the first day we had been taking detainees from the in-processing center to their cages for quite a while when myself and the guy that was my escorting partner grabbed the next detainee to be taken. He was an older man. Probably in his mid to late 50s--short and kind of a husky build. I remember grabbing him and then starting to walk first through the rocks and then through the sally port (a long walk way with gates on both sides) heading towards Alpha Block. Then I noticed he was really tense, shaking really bad, and not wanting to walk or move without being forced to do so. We made our way to Alpha Block to the cage he would be placed in. He was instructed to go to his knees, which he did. My partner then went down and took off his leg shackles. I still had control of his upper body, and I could still feel him tensing up. Once the shackles were off my partner started to take off the hand cuffs. The detainee got really tense and started to pull away. We yelled at him a couple times "Stop moving!" Over and over. Then he stopped moving, and when my partner went to put the key in that first handcuff, the detainee jerked hard to the left towards me. Before I knew it, I threw the detainee to the ground and was on top of him holding his face to the cement floor.

…

A couple days later I found out from a detainee who was on that block that the older detainee was just scared and that when we placed him on his knees he thought he was going to be executed. He then went on to tell me that this man had seen some of his friends and family members executed on their knees. I can remember guys coming up to me after it was over that night and said "Man, that was a good job; you got you some."

Neely also notes that cameras were present at every "IRFing" (the act of employing what Neely refers to as an "internal reaction force," a five-member squad used to deal with supposedly dangerous and violent detainees, of which Neely was a participant) as mandated by law, but were either turned off or left pointing at the ground. In another incident, he notes, video of an IRFing was destroyed. Source: "Testimony of Spc. Brandon Neely," accessed on the website of The Center for Study of Human Rights in the Americasat http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/testimonies/testimonies-of-military-guards/testimony-of-brandon-neely, 17 February 2009. Ellipses not in original.

See also "The Black Shirts of Guantánamo" by Jeremy Scahill, in which he describes the I.R.F.:

While much of the "torture debate" has emphasized the so-called "enhanced interrogation techniques" defined by the twisted legal framework of the Office of Legal Council memos, IRF teams in effect operate at Guantánamo as an extrajudicial terror squad that has regularly brutalized prisoners outside of the interrogation room, gang beating them, forcing their heads into toilets, breaking bones, gouging their eyes, squeezing their testicles, urinating on a prisoner's head, banging their heads on concrete floors and hog-tying them -- sometimes leaving prisoners tied in excruciating positions for hours on end.

The IRF teams "were fully approved at the highest levels [of the Bush administration], including the Secretary of Defense and with outside consultation of the Justice Department," says Scott Horton, one of the leading experts on U.S. Military and Constitutional law. This force "was designed to disabuse the prisoners of any idea that they would be free from physical assault while in U.S. custody," he says. "They were trained to brutally punish prisoners in a brief period of time, and ridiculous pretexts were taken to justify" the beatings.

Source: Jeremy Scahill, "The Black Shirts of Guantánamo," 17 May 2009, accessed on the website of CounterPunchat http://www.counterpunch.org/scahill05152009.html, 19 July 2009. Brackets in original.

105In another similarity to the mafia, it seems that there is a code of silence (Omertà, the all-encompassing dictum which forbids cooperation with authorities, in the case of the Cosa Nostra) among U.S. troops. The story of Michael Hensley provides a stark example of this intra-military collusion. On May 11, 2007, Hensley ordered one of the men in his sniper team (Evan Vela) to kill an Iraqi who was approaching their hideout, and then placed an AK-47 on the corpse. After it came to light that the man never posed the snipers any threat and was in fact killed in cold blood, both Hensley and Vela were put on trial for murder. An Esquirearticle recounts the collusion between Vela and Hensley prior to their trial:

But he says that while he and Vela were in pretrial confinement in Kuwait, they managed to do what they were forbidden to do, and communicate. He says that before the trial, Evan got him a note, saying it was going to be all right. And it was. Before Evan Vela took the stand in the trial of Michael Hensley, he ripped all the patches off his uniform except the American flag; in what his lawyer calls "a PTSD episode," he went blank. He testified that he had no memory of Hensley ordering him to shoot Khudair al-Janabi and doesn't know if he did. Hensley's lawyer argued that Evan Vela shot and killed the man for reasons only Evan Vela knows. Hensley was acquitted of all three counts of premeditated murder and convicted instead on charges of planting the AK-47 and disrespecting a commanding officer. He was sentenced to time served.

Vela was not so lucky. He was convicted of murder and sentenced to 10 years in prison in spite of Hensley's insistence in court that Vela was following a valid order and had done nothing wrong. Hensley offered the following rationalization of his actions (quoted in theEsquirepiece), which is also instructive:

You know, nobody thinks they're a bad person. You can talk to the worst murderer, the worst rapist in prison, and they'll always try to find a way to justify what they did. And that hits home for me. I mean, when you look at things that way, maybe what I did was wrong. I refuse to believe it, but who knows? In the end, it comes down to, When that guy walked in my hide site, I made a decision. It was my decision. Nobody else made it, nobody else could make it, because nobody else had the whole picture. Evan Vela killed that guy because I ordered him to and because he had no reason not to. Was it a good kill? It's a good kill because I say it's a good kill. That's why I was there. That's why the battalion put me there.

The article's author, Tom Junod, writes that he has spoken to many American soldiers and civilians, none of whom feel that Henley did anything objectionable. Source: Tom Junod, "The Six-Letter Word That Changes Everything," 11 June 2008, accessed on the website of Esquireat http://www.esquire.com/features/ michael-hensley-0708, 4 December 2008.

In early 2009, it was reported that, following appeals from Senator Mike Crapo and Representative Mike Simpson (both Republicans from Indiana), President Bush was strongly considering a pardon for Vela. The Congressmen argued that Vela was simply following orders (as it happens, the sergeant was not pardoned). Source: Faiz Shakir, "Bush 'Seriously Considering' Pardon of Iraq War Vet who Killed Unarmed Iraqi Civilian," 5 January 2009, accessed on the website ofThink Progress at http://thinkprogress.org/2009/01/05/ vela-pardon-request/, 6 January 2009.

107A similar form of peer pressure marginalizes soldiers who seek mental help or complain of other medical problems. A February 2009 Salonarticle finds this attitude to be reflected in the institutional reluctance to provide proper healthcare:

Late last month the Army released figures showing the highest suicide rate among soldiers in three decades. The Army says 128 soldiers committed suicide in 2008 with another 15 still under investigation. "Why do the numbers keep going up?" Army Secretary Pete Geren said at a Pentagon news conference Jan. 29. "We can't tell you." The Army announced a $50 million study to figure it out.

It is not just the suicides spiraling out of control. Salon assembled a sample of 25 cases of suicide, prescription drug overdoses or murder involving Fort Carson soldiers over the past four years, by no means a comprehensive list. In-depth study of 10 of those cases revealed a pattern of preventable deaths. In most cases, the deaths seemed avoidable if the Army had better handled garden-variety combat stress reactions.

The article details the attempted suicide of Adam Lieberman, an Army private who scrawled a suicide note on the wall of his barracks blaming his predicament on the Death Dealers, a name given to his unit. Lieberman was eventually diagnosed with post-traumatic stress disorder (stemming from several traumatic episodes and a head injury during his deployment in Iraq), but he was denied proper care--instead, the Army focused on his violent behavior and alcoholism, demoting Lieberman and enrolling him in anger management and substance abuse courses. Lieberman's case is emblematic of the military's attitude toward mental health, which can be best described as a macho inability to display sympathy and recognize the validity of war's deleterious impact on the psyche. Even proactive measures, such as a 2007 initiative to hire additional therapists and screen soldiers for post-traumatic stress disorder, have been applied piecemeal, a reluctance likely explained by the fact that a positive diagnosis entitles the sufferer to benefits (Lieberman alleges that his Army psychologist repeatedly attempted to cast his mental problems as a preexisting condition rather than one born of combat experience). The problem, perhaps best encapsulated by a prank "hurt feelings report" which was copied by one of Lieberman's squad mates and left next to regular medical sign-out sheets (it uses the words "little bitch," "queer" and "thin skinned" to describe soldiers who seek help), shows no signs of abating. Source: Mark Benjamin and Michael de Yoanna, "Preventable Deaths at Fort Carson," 9 February 2009, accessed on the website of Salonat http://www.salon.com/news/special/ coming_home/2009/02/09/coming_home_one/, 4 April 2009.

110In spite of more accurate targeting methods, civilian deaths have increased as a proportion of total combat casualties. It seems that smart bombs are only as smart as those setting their targets: in 1991, for example, two smart bombs killed 408 Iraqi civilians in the Amariyah bomb shelter, mostly women and children, in the largest modern wartime instance of collateral damage at that time. Military officials have argued that they had received intelligence that the bunker was used as a military facility, but subsequent investigations found no evidence of such use. Source: Scott Peterson, "'Smarter' Bombs Still Hit Civilians," 22 October 2002, accessed on the website of Christian Science Monitor at http://www.csmonitor.com/2002/ 1022/p01s01-wosc.htm, 27 December 2008.

In 2008, civilian death rates in Afghanistan rose 39%. Militants were responsible for 55% of the new deaths; N.A.T.O. and Afghan military units were responsible for 39% of them. The B.B.C. reports that 2008 was the bloodiest year for Afghan civilians since the 2001 overthrow of the Taliban. (It has since come to light that much of this increase in civilian deaths was due to clandestine nighttime U.S. commando missions, which in February 2009 were temporarily discontinued amid fears of growing Afghan resentment. Civilian casualty figures have continued to increase in 2009 with roughly the same proportion of deaths caused by militants on either side, though U.S. air strikes are still the single deadliest form of attack.) Source: "Alarm over Afghan Civilian Deaths," 17 February 2009, accessed on the website of The British Broadcasting Corporation at http://news.bbc.co.uk/2/hi/south_asia/7894233.stm, 18 February 2009.

The B.B.C. article also relates that a "US Congress-funded think tank said it was unlikely the US and Nato would defeat the insurgents." Indeed, the situation in Afghanistan is perhaps more dire than that of Iraq. The senior British commander in Afghanistan, Brig. Mark Carleton-Smith, said flatly in October 2008, "we're not going to win this war." He opined further that the only hope of keeping the level of insurgent violence down is to broker an agreement between resurgent neo-Taliban forces and the government. Source: "British Officer Quoted Calling War Unwinnable," 6 October 2008, accessed on the website of The Baltimore Sun at http://www.baltimoresun.com/news/world/bal-te.britain06oct06,0,907249.story, 12 October 2008.

One consequence of increasing neo-Taliban (and in general, fundamentalist) influence is the Shia Family Law, which, according to The Independent, "negates the need for sexual consent between married couples, tacitly approves child marriage and restricts a woman's right to leave the home" for Afghanistan's Shia Muslims. The bill was an appeasement measure signed into law by the Karzai government in 2009 in order to buttress its reelection chances in August (the U.S. plans to appoint a U.S.-friendly "Prime Minister" to act as a counterbalance to Karzai, thus subverting even the corrupt democratic system it installed). Source: Jerome Starkey, "Afghan Leader Accused of Bid to 'Legalize Rape'," 31 March 2009, accessed on the website of The Independent at http://www.independent.co.uk/news/world/asia/afghan-leader-accused-of-bid-to-legalise-rape-1658049.html, 24 May 2009.

Several months later, a slightly altered version of the bill passed, following international protest. The altered version, however, still contains the following: a prohibition on wives leaving the domicile without the husband's permission, the legalization of withholding food from one's wife in order to punish her for failing to satiate the husband's sexual desires, and a provision which would allow rapists to avoid prosecution by paying money to the victim. Source: Jon Boone, "Afghanistan Passes 'Barbaric' Law Diminishing Women's Rights," 14 August 2009, accessed on the website of The Guardian at http://www.guardian.co.uk/world/2009/ aug/14/afghanistan-womens-rights-rape, 14 August 2009.

Tolerance of spousal rape is not a problem unique to Islam. It was not until 1976 that the U.S. made rape within marriage illegal, and a current effort to outlaw the practice in the Bahamas is being met with widespread opposition from citizens who argue that the Bible confers upon the husband the right to demand sex from his wife at any time.

112In Afghanistan, this excuse is ineffective. A February 2009 poll of Afghans finds a significantly decreasing level of support for the U.S. occupation, owing mostly to the devastating bombing raids employed in civilian areas. According to The Washington Post,

Most troubling to the Afghans are U.S. airstrikes and civilian casualties. One in five said coalition forces have killed civilians in their area in the past year, and one in six reported nearby bombing or shelling at the hands of U.S. forces.

About eight in 10 called coalition airstrikes unacceptable, viewing the risk to innocent civilians as greater than the value of these raids in fighting the Taliban and other anti-government insurgents. More blame U.S. and coalition forces for poor targeting than blame the Taliban for keeping assets among civilians (41 percent to 28 percent); 27 percent said both sides shared the blame.

One in four Afghans said attacks on U.S. or other forces can be justified, up significantly from the past couple of years but on par with the level of October 2005.

Source: Jon Cohen and Jennifer Agiesta, "Poll of Afghans Show Drop in Support for U.S. Mission," 10 February 2009, accessed on the website of The Washington Post at http://www.washingtonpost.com/wp-dyn/ content/article/2009/02/09/AR2009020901368_pf.html, 20 June 2009.

120Chelsea J. Carter, "Ex-Marine Decries Prosecution in Civilian Court," 17 August 2008, accessed on the website of The Boston Globe at http://www.boston.com/news/nation/articles/2008/08/17/ex_marine_decries_ prosecution_in_civilian_court/, 20 August 2008.

A member of the jury which acquitted Nazario seems to have found McDermott's argument compelling: "I think you don't know what goes on in combat until you are in combat," said juror Ingrid Wicken. This is, of course, a complete argumentative invalidation of civilian trials for servicepersons--if Wicken had no confidence in the court's very jurisdiction, her participation in it is of questionable merit. Source: "Federal jury acquits ex-Marine in Iraqis' deaths," 28 August 2008, accessed on the website ofMSNBCat http://www.msnbc.msn.com/id/26443458/, 31 August 2008.

Nazario, it seems, is not the only accused who claims to have been ordered to murder. In 2006, four U.S. soldiers in Iraq alleged that they were given orders to kill any military-age males. The four--Staff Sergeant Raymond L. Girouard, Specialist William B. Hunsaker, Private First Class Corey R. Clagett, and Specialist Juston R. Graber--faced several charges (among them, murder) in connection with a raid on a suspected insurgent training camp, during which three detainees were released and then shot. (Girouard was convicted of three counts of negligent homicide and obstruction of justice; Hunsaker and Clagett pled guilty to murder and received 18-year sentences; Graber was jailed for nine months for aggravated assault). Source: "US Soldier Guilty in Iraq Killing," 17 March 2007, accessed on the website of The British Broadcasting Corporation at http://news.bbc.co.uk/2/hi/americas/6461215.stm, 19 February 2009.

124Even Iraqi paramilitary forces have found themselves unaccountable. The Iraq Special Operations Forces, created by the Green Berets in 2003, acts as a 4,500-strong U.S.-sponsored death squad in Iraq, accountable after the 2007 transfer of power to the unilateral dictates of prime minister Nuri al-Maliki's Counter-Terrorism Bureau and above the normal oversight of the Iraqi political process (though it maintains to this day a strong contingent of U.S. advisors and continues to operate with U.S. equipment; the C.T.B. was created at the behest of U.S. officials). The I.S.O.F. has been accused of a substantial number of human rights abuses, including politically-motivated killings and arrests; several of such accounts have implicated U.S. operatives as having taken part in the atrocities. Reliance on such "special" forces is likely to increase in the coming years, with Obama and Secretary of Defense Gates indicating that even a U.S. withdrawal will do little to hamper the I.S.O.F. and its analogues. Source: Shane Bauer, "Iraq's New Death Squad," 3 June 2009, accessed on the website of The Nation at http://www.thenation.com/doc/20090622/ bauer, 10 June 2009.

In June 2009, 41 members of a similar U.S.-trained private security firm in Afghanistan were implicated in an attack on the Kandahar prosecutor's office in which a police chief and several others were killed. The guards, which are employed and commanded by U.S. forces, were attempting to free criminals held at the office. Though unconfirmed, eyewitnesses placed U.S. personnel at the scene of the shootout. Source: "Afghan Guards Held after Shootout," 29 June 2009, accessed on the website of British Broadcasting Corporation at http://news.bbc.co.uk/2/hi/south_asia/8123866.stm, 2 July 2009.

125While the U.S. government often undermines treaties it has ostensibly endorsed, it also attempts to secretly negotiate away treaty provisions which would indict C.I.A. agents for their role in "enforced disappearances." An Amnesty International F.O.I.A. request yielded a number of documents from 2003 to 2006 in which the Bush administration attempted (unsuccessfully) to rewrite provisions of an international treaty which would have prohibited state kidnapping, indefinite detention, and political assassination. One of the changes requested by the Bush administration hinged on the definition of intentionality, which is instructive:

The U.N. group complained to the Bush administration last year about reports of the "enforced disappearance for a certain period of time" of Hassan Mustafa Osama Nasr, also known as Abu Omar, a radical Egyptian cleric who was abducted by the CIA from a Milan street in 2003 and sent to Egypt, where he says he was tortured. When the State Department responded that U.S. policy bars such renditions if torture is anticipated, the U.N. group highlighted the gulf between the global treaty's view of "intentionality" and the Bush administration's view.

"Intentionality is essentially irrelevant," the group said in its response to Washington, "in the sense that any act of enforced disappearance has the consequence of placing the persons subjected thereto outside the protection of the law, regardless of the pursued purposes." U.S. negotiators had argued to the contrary in 2006 -- that proving intent is "an essential ingredient of the crime."

During the negotiations, China and a few other countries joined the United States in repeatedly attempting to slow the pace of the drafting, citing the complexity of the underlying issues. But a February 2004 State Department cable described the United States as "isolated" in urging that the text include language allowing those participating in enforced disappearances to be exempt from prosecution if they thought they were following lawful orders.

The Obama administration has not yet substantively altered this behavior. Source: R. Jeffrey Smith, "U.S. Tried to Soften Treaty on Detainees," 8 September 2009, accessed on the website of The New York Times at http://www.washingtonpost.com/wp-dyn/content/article/2009/09/07/AR2009090702225.html, 12 September

2009.

127Eric Schmitt and Mark Mazzetti, "Secret Order Lets U.S. Raid Al Qaeda Around the World," 10 November 2008, accessed on the website of The International Herald-Tribune at http://www.iht.com/articles/ 2008/11/10/america/10military.php, 10 November 2008.

Separately, Seymour Hersh reported in March 2009 that the Bush administration authorized assassinations in foreign countries without consulting either the nation's ambassador or C.I.A. leadership, under the Joint Special Operations Command, a secretive group of special operatives which reported directly to Dick Cheney and which is not subject to Congressional oversight. Hersh has not yet written extensively of his findings, so little is known beyond the group's existence and active use. Source: Eric Black, "Investigative reporter Seymour Hersh describes 'executive assassination ring'," 11 March 2009, accessed on the website of The Minnesota Post at http://www.minnpost.com/ericblackblog/2009/03/11/7310/investigative_reporter_ seymour_hersh_describes_executive_assassination_ring, 13 March 2009.

It has also come to light that the C.I.A. enlisted the help of contractor Blackwater in a planned program to assassinate al Qaeda leaders in 2004. Though the program was unsuccessful, Blackwater was paid millions for its training and logistical support through an informal set of agreements (a formal contract was not pursued, and Congress was never informed, despite the illegality of using the C.I.A. carrying out assassinations). Mark Mazzetti of The New York Times elaborates:

In 2002, Blackwater won a classified contract to provide security for the C.I.A. station in Kabul, Afghanistan, and the company maintains other classified contracts with the C.I.A., current and former officials said.

Over the years, Blackwater has hired several former top C.I.A. officials, including Cofer Black, who ran the C.I.A. counterterrorism center immediately after the Sept. 11 attacks.

C.I.A. operatives also regularly use the company's training complex in North Carolina. The complex includes a shooting range used for sniper training.

Source: Mark Mazzetti, "C.I.A. Sought Blackwater's Help in Plan to Kill Jihadists," 19 August 2009, accessed on the website of The New York Times at http://www.nytimes.com/2009/08/20/us/20intel.html, 19 August 2009.

132Muqtada al-Sadr, the only insurgent figure which could conceivably fill this role, has said that he does not consider the current Iraqi government legitimate. However, the Mahdi Army he commands was ordered to honor a truce in 2007 after sectarian fighting in Karbala resulted in the deaths of 50 Shia Muslims. He condemned the "sedition mongers" and exhorted the militia to help security forces bring them to justice, and called for a cessation of violence toward political opposition groups. Source: Damien McElroy, "Moqtada al-Sadr Announces Ceasefire in Iraq," 30 August 2007, accessed on the website of The Telegraph at http://www.telegraph.co.uk/news/worldnews/1561731/Moqtada-al-Sadr-announces-ceasefire-in-Iraq.html, 30 November 2008.

Sadr has called for the expulsion of U.S. forces from Iraq, though he would allow a U.N. presence in order to facilitate peacekeeping. He has also stated that his preferred form of government would be similar to that of Iran, with some measure of democracy and secular government coexisting with a centralized religious authority (he is studying to become an Ayatollah), which would hold the real power. Source: Juan Cole, "What does Muqtada al-Sadr Want?," 19 August 2004, accessed on the website of Informed Comment at http://www.juancole.com/2004/08/what-does-muqtada-al-sadr-want-tom.html, 30 November 2008.

One month after the U.S. pullout of Iraqi cities on June 30, 2009, militants had killed roughly 550 Iraqis, most of them Shiite victims of Sunni attacks. Yet the reaction of Iraq's Shiite majority provides an encouraging sign that the cycle of violence may be unsustainable in the absence of the U.S. presence: rather than call for retaliation, as may have been done in the past, Shiite religious and political leaders are increasingly exhorting their followers to nonviolence. Grand Ayatollah Ali al-Sistani, for example, has forbidden violent reprisals, as has the group known as Asa'ib al-Haq, one of the last Shiite militant groups to continue fighting after 2008. The reaction of Sunni leaders is as well heartening:

Another important difference has been the rejection by Sunni politicians of attacks on the Shiites, which was rarely heard in 2006. "The Sunnis openly and clearly are condemning these attacks," said Ghassan al-Atiyyah, a political analyst who directs the Iraq Foundation for Democracy and Development. "And they're all emphasizing that this is trying to stir up sectarian violence."

Majid al-Asadi, a cleric in Najaf, said, "We will not react against these efforts to ignite sectarian conflict because that is exactly what our enemies want and not what our Iraqi people want."

Source: Rod Nordland, "Iraq's Shiites Show Restraint After Attacks," 11 August 2009, accessed on the website of The New York Times at http://www.nytimes.com/2009/08/12/world/middleeast/12shiite.html, 13 August 2009.

133Regarding Afghanistan, it is only the near-certainty of a neo-Taliban resurgence and resultant total war which could conceivably legitimate a continuing occupation, and only if such was established as necessary to stop this calamity. The just occupation in question would not resemble the current force (the target of a large spending and force increase under President Obama), which, according to a report compiled over the objections of the Bush administration and delivered to the Commission on Wartime Contracting by top-level watchdogs (including the deputy inspector general for Iraq reconstruction, Ginger Cruz), is in danger of being subjected to a similar level of fraud, waste and greed as that which plagued the Iraq reconstruction effort:

There are 154 open criminal investigations into allegations of bribery, conflicts of interest, defective products, bid rigging and theft in Iraq, Afghanistan and Kuwait, said [Thomas] Gimble, the Pentagon's principal deputy inspector general.

Gimble noted that contracting scandals have gone on since the late 1700s when vendors swindled George Washington's army.

"Today, instead of empty barrels of meat, contractors produced inadequate or unusable facilities that required extensive rework," Gimble said. "Like the Continental Forces who encountered fraud, the (Defense Department) also encounters fraud."

Source: Richard Lardner, "Waste, Fraud in Iraq Being Repeated in Afghanistan," 2 February 2009, accessed on the website of The Associated Press at http://www.google.com/hostednews/ap/article/ALeqM5h6idf-GRTT82wTAcFmdHm9jdWSCwD963O6CO0, 3 February 3, 2009. Brackets not in original.

141The Obama administration has also continued to allow the use of unmanned drones to attack targets in Pakistan, over Pakistan's increasingly heated objections (hundreds, almost all of them civilians, have been killed in these drone incursions). The attacks, in addition to being illegal, have led to a sharp increase in extremist sentiment (including support for the Taliban) among Pakistanis living in the Swat Valley border region. In the ensuing skirmishes between Pakistani security forces and neo-Taliban fighters, hundreds of thousands of Pakistanis have become refugees. In August of 2009, it came to light that the C.I.A. has been using a contractor (Blackwater) to help in carrying out the illegal missile attacks.

The use of drones has increased significantly in recent months; according to an October Esquirearticle, the number of unmanned aircraft ordered by the Pentagon will soon be greater than the number of manned aircraft. The article notes that the drones, which are piloted remotely in the U.S., further dehumanize the military's targets (page 2):

He centered the infrared targeting laser on a group of men that had just planted an IED, and the pilot squeezed the button and trigger, a slight movement of left thumb and right index finger. The missile raced along its invisible tether and half a minute later, the men were gone, erased in a cloud of black-and-white fire. A couple dozen people watched the strike, from operations centers in Afghanistan, Qatar, and the United States. Even a desk jockey at the Pentagon can monitor the feeds if he has the right clearance. So enticing are these voyeur views that a special term for them has arisen in military circles: Predator porn. Everybody likes to watch.

Source: Brian Mockenhaupt, "We've Seen the Future, and It's Unmanned," 14 October 2009, accessed on the website of Esquireat http://www.esquire.com/features/unmanned-aircraft-1109, 15 October 2009.

142See the ongoing lawsuit Mohamed et al. v. Jeppesen Dataplan, filed by the A.C.L.U. on behalf of Binyam Mohamed and four others who were tortured as part of the rendition program. Though an appellate court has since rejected Obama's reasoning, the White House maintains that the state secret doctrine can be used to reject lawsuits outright (the appellate court, on the other hand, ruled that the doctrine can only permit the withholding of specific documents--it cannot prevent a lawsuit). Strangely, Mohamed's lawyers may face jail time for a letter they submitted to President Obama, requesting that he disclose the extent of Mohamed's torture:

The government says the letter falsely accused a Pentagon review team of censoring details of the alleged torture of Binyam Mohamed from a document the attorneys wanted to send to Obama. The lawyers stand by their accusations but have been summoned to Washington, D.C., by a federal judge for a hearing next month on whether they should be held in contempt of court, punishable by up to six months in jail.

Details of this May hearing have not yet emerged.

Source: Bob Egelko, "Torture Case Lawyers May Face Jail for Letter," 20 April 2009, accessed on the website of the San FranciscoChronicleat http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/04/20/

BA68172JDM.DTL, 18 June 2009.

152There is also the case of "Captain R," an Israeli army captain who in 2004 shot and killed 13-year-old Iman al-Hams, a Palestinian girl who had wandered near an army post in the Rafah refugee camp in Gaza. Though the soldier had been warned that the girl was "scared to death," and clearly posed no threat (the army claimed that she may have been carrying a bomb in her backpack, but witnesses describe her as having been at least 100 yards from the well-protected post), the Captain shot her twice through the head, then emptied his clip into her body for a total of 17 bullet wounds. Tapes from the incident reveal Captain R's rationale: "This is commander. Anything that's mobile, that moves in the [security] zone, even if it's a three-year-old, needs to be killed." He was charged neither with murder nor manslaughter, but with "illegal use of his weapon, conduct unbecoming an officer and perverting the course of justice by asking soldiers under his command to alter their accounts of the incident." R was cleared of all charges, promoted, and compensated monetarily (the investigation was later criticized and officially reprimanded). Source: Chris McGreal, "Not Guilty. The Israeli Captain Who Emptied His Rifle into a Palestinian Schoolgirl," 16 November 2005, accessed on the website of The Guardian at http://www.guardian.co.uk/world/ 2005/nov/16/ israel2, 10 January 2009. Brackets in original.

Incidents similar to this have continued to occur in the wake of Operation Cast Lead. In August, the Israeli Occupation Forces shot (without provocation) a 15-year-old Palestinian boy and prevented ambulances from reaching him. The boy, Mohammed Riad Nayef 'Elayan, died after being transported to a hospital more than an hour after the shooting.

159The Central Election Commission on January 12 voted to ban Arab parties, already a stark minority, from participation in the parliamentary election (though the law was later overturned by the Israeli Supreme Court). The commission accused the Arab parties United Arab List-Ta'al and Balad of incitement and hatred following Israel's 2008 offensive in Gaza. The petition was filed by two ultra-rightwing parties similar to Likud: Yisrael Beiteinu (a hardliner party fronted by Avigdor Lieberman, which ran on a platform recommending that Arab citizens be required to sign loyalty oaths. Yisrael Beiteinu also gained seats in the Knesset and later played kingmaker in its endorsement of Likud leader Benjamin Netanyahu for Prime Minister) and the Nation Union-National Religious Party. Source: Sahar Ilan and Roni Singer-Heruti, "Israel Bans Arab Parties from Running Upcoming Elections," 12 January 2009, accessed on the website of Haaretzat http://haaretz.com/hasen/spages/1054867.html, 12 January 2009.

This form of racism is not limited to the government: the Israeli Association for Civil Rights found in their 2007 annual report that the number of incidents of racism against Arabs has risen by 26%; the number of Jews who report feelings of hatred toward Arabs has doubled. 74% of Jewish youths in Israel believe that Arabs are unclean, according to a similar Haifa University study. Source: Yuval Yoaz, "Racism Reaching New Heights in Israel, Civil Righs Group Says," 10 December 2007, accessed on the website ofHaaretzat http://www.haaretz.com/hasen/spages/ 932390.html, 24 March 2009.

160Regarding housing, the 2002 Israeli budget is instructive:

In the 2002 budget, Israel's housing ministry spent about £14 per person in Arab communities compared with up to £1,500 per person in Jewish ones. The same year, the health ministry allocated just 1.6m shekels (£200,000) to Arab communities of its 277m-shekel (£35m) budget to develop healthcare facilities.

The figures are quoted in "Worlds Apart," a Guardianarticle by Chris McGreal which finds many compelling similarities between the South African apartheid state and Israel's treatment of its Arab minorities and Palestinians. One important point concerns the West Bank Barrier, a so-called security barrier which was erected in 2002 in contravention of international law:

Comparisons between white rule in South Africa and Israel's system of control over the Arab peoples it governs are increasingly heard. Opponents of the vast steel and concrete barrier under construction through the West Bank and Jerusalem dubbed it the "apartheid wall" because it forces communities apart and grabs land. Critics of Ariel Sharon's plan to carve up the West Bank, apportioning blobs of territory to the Palestinians, draw comparisons with South Africa's "bantustans" - the nominally independent homelands into which millions of black men and women were herded.

The common practice of evicting Arabs and "confiscating" the property for Jewish families (and then employing institutional barriers and unequal justice to forestall any legal challenges; for example, see the Israel Lands Administration rule which prevents non-Jewish foreigners, a group which includes Palestinians already living in East Jerusalem, from assuming ownership of most homes in the city) too provides a strong case for the existence of widespread anti-Arab sentiment in Israel. Source: Chris McGreal, "Worlds Apart," 6 February 2006, accessed on the website of The Guardian at http://www.guardian.co.uk/world/2006/feb/06/ southafrica.israel, 5 May 2009.

Evictions continue to take place at an alarming rate. Following a Supreme Court ruling which held that a block of land in East Jerusalem belonged to Jews, Israeli police evicted 53 Palestinians living in two houses there in August 2009. The families had occupied the land for 50 years.

In a later decision, the High Court of Justice ruled that two "illegal" Palestinian houses in the West Bank should be demolished. It had previously ordered the destruction of a number of illegal Israeli settlements, but as Dan Izenberg of The Jerusalem Post writes, the new orders are not equivalent:

"The difference," said Michael Sfard, who has represented many of the petitioners, "is that in my cases, the settlers built on privately-owned Palestinian land."

In the case of the two buildings in Sauya and Yatma, the ownership of the land is unknown but there is virtually no possibility that it is privately owned by Jews.

…

Meanwhile, Alon Cohen-Lifshitz of the human rights organization Bimkom, told The Jerusalem Post that Israel has pursued a consistent policy of preventing new construction by Palestinians in Area C, which is under Israeli administrative and security control and compromises 60 percent of the entire West Bank. Sauya and Yatma are both located in Area C.

"In the years between 2000 and 2007, the civil administration has issued an average of 60 demolition orders per month against Palestinian buildings in Area C and, at the same time, has approved an average of one request per month for building permits by Palestinians," he said. He added that building plans for the Palestinian villages in Area C were very limited and restricted, which meant that Palestinians cannot build there legally.

Source: Dan Izenberg, "High Court: Demolish Illegal Palestinian Homes," 10 September 2009, accessed on the website of The Jerusalem Post athttp://www.jpost.com/servlet/Satellite?cid=1251804532459&

pagename=JPost/JPArticle/ShowFull, 11 September 2009. Ellipses not in o