The Talking Dog

June 14, 2016, TD Blog Interview with Rebecca Gordon

Rebecca Gordon received her B.A. from Reed College and her M.Div. and Ph.D. in Ethics and Social Theory from Graduate Theological Union. She teaches in the Philosophy department at the University of San Francisco and for the university’s Leo T. McCarthy Center for Public Service and the Common Good. Previous publications include Letters From Nicaragua and Cruel and Usual: How Welfare “Reform” Punishes Poor People, the book Mainstreaming Torture, and her latest book is American Nuremberg: The Officials Who Should Stand Trial for Post 9/11 War Crimes. On June 14, 2016, I had the privilege of interviewing Dr. Gordon by email exchange.

The Talking Dog: Where were you on 11 Sept. 2001?

Rebecca Gordon: I was in San Francisco, getting ready to teach the first session of a course at Graduate Theological University called “The Communist Manifesto for Seminarians.” The clock radio woke us at 6:00 a.m., we heard the news of the first plane, and my partner and I did something we never do – turned on the television in the morning. We were just in time to see the second plane hit the tower. My father lived in New York, although he was out of the city that day. Friends I’ve come to know in the intervening years lost their son in the World Trade Center.

I’ve been teaching undergraduates since 2005. It’s strange to realize that this fall I’ll have students in my classes who were only two years old that day. September 11, 2001 does not have the salience for them that it did for my students a decade ago. They’ve never known a time when the U.S. was not at war against “terror,” and yet they have no memory of those attacks.

The Talking Dog: Your book "American Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes," lays out a straightforward bill of indictment against a number of Bush Administration (and to a lesser extent Obama Administration) officials. Obviously, a good deal of this material has been out in the public domain for a significant amount of time now. Is there a particular reason why, now, at the end not of the Bush Administration, but near the end of the Obama Administration, that you believe the time is ripe for any form of "an American Nuremberg?" Related question-- given your veritable lifetime of human rights related activities, what is it about the excesses associated with "the war on terror" (by whatever nomenclature) that has impelled you to write on this particular subject now?

Rebecca Gordon: You’re right, of course, that much of this material has been in the public domain for some years now. That’s part of why I wrote the book – out of frustration that none of these revelations of criminal activity have led to any action to hold government officials accountable. Some of what we know has come to light relatively recently – for example, in the executive summary of the Senate Intelligence Committee’s report on CIA torture, which came out in December 2014. But some of it has hidden in plain sight for over a decade. As early as 2002, Dana Priest was writing in the Washington Post about the use of “stress and duress” tactics at Bagram Air Force Base in Afghanistan.

But you ask, why now, at the end of the Obama administration? I did write an earlier book, Mainstreaming Torture, about how, especially under Bush, the people in this country were trained to accept torture as the necessary price of an illusory security. Sadly, however, the Obama administration has continued some of the practices of Bush & Company – specifically the use of remotely piloted drones to murder people half a world away. And President Obama made it very clear, the day after his first inauguration, that the country should “look forward as opposed to looking backwards,” when it comes to holding anyone responsible for the crimes of the “war on terror.”

The Talking Dog: As you might know, I was one city block north of the WTC on Sept. 11th, where I worked until that very morning (as my office building was in "the frozen zone," my law firm laid me off)... Shortly after 9-11, while I was working as a temp for another law firm, I was sitting in a courtroom in Brooklyn overhearing a conversation between another man and a young attorney who, it turned out, was an Air Force JAG reservist who was being placed on active duty so that he could help develop what would become the protocols for military commission trials of terrorism suspects, to wit, "the new Nuremberg". Notwithstanding that in a high school International Relations class project, in a mock Nuremberg trial, I was assigned as defense counsel and secured the acquittal of a Nazi propagandist who was hanged in real life, I was professionally jealous of that young man in getting to be part of "the new Nuremberg" paradigm. While I went about my quotidian business of practicing law in a city with the WTC site still smoldering less than a mile away from its busiest courts (the President, for his part, suggested that our best response as a people was to "go shopping"), others would get to "be the current greatest generation" and "bring justice" to the supposed "terrorists." Fast forward to 2016; our "new Nuremberg" has, of course, been a complete and utter disaster-- we seem no closer to trying the alleged 9-11 perpetrators, notwithstanding their apparent open confessions and desire to plead guilty, than we were years ago, while the question of their torture and various government malfeasance (such as listening to attorney client communications) is hush-hushed or tut-tutted. Indeed, only three remaining GTMO detainees have been "convicted" by military tribunals, and even those "convictions" are under judicial assault for various legal infirmities. Indeed, almost no one outside the American government itself (including two former military commissions prosecutors whom I have interviewed) believes that the military commissions afford any degree of fundamental fairness, and a tiny fraction of the men remaining at GTMO are even subject to the commissions in any event. And so, the military commissions thought by some to be "the New Nuremberg," what was once a key justification of maintaining a prison at Guantanamo (a prison that has been the site of many of at least the best known and best documented war crimes and other human rights violations in the war on terror, if only a comparatively small scale compared to hundreds of thousands dead and millions displaced in Iraq, Afghanistan, Pakistan and elsewhere) has itself become little more than cover for an entirely different set of additional war crimes in the realm of torture often intended to generate "evidence" to be used against other GTMO detainees. While your book didn't discuss this, one set of the later Nuremberg cases-- after the initial "Big 22" of major Third Reich figures, was "the Judges' Trial" where members of the Third Reich's judiciary were put on trial for their own role in atrocities. Can you comment on the irony of the role of attempting to reconstitute Nuremberg style "war crimes" tribunals in the context of an overall detention policy regime that is itself (and I thoroughly agree with you that it is) ripe for war crimes prosecutions in its own right? Please include the term "victor's justice" in your response, if possible.

Rebecca Gordon: I shouldn’t be surprised that in the beginning the JAG attorneys thought of their work as participating in a new Nuremberg. I do think that some of these lawyers became true heroes when they began to recognize Bush’s military commissions were nothing like the Nuremberg tribunals, and refused to participate further. When they realized that defendants were not allowed to see the charges or evidence against them, and that some of that “evidence” was produced under torture, and that their supposedly confidential conversations with clients were being monitored, they said no.

When it became clear they were going to win the war, the Great Powers (France, Great Britain, the Soviet Union, and the United States) met to consider how to deal with defeated Nazi officials. One option – originally proposed by Joseph Stalin – was simply to line them up and shoot them. In the end, though, it was Stalin who argued for trials. The question was, how to make these genuine legal proceedings, rather than a piece of theater that could be interpreted by the rest of the world as “victors’ justice.” In other words, these trials had to be legitimate, and not just an excuse for those who’d won the war to exact vengeance on a defeated enemy.

Imperfect as the Nuremberg tribunals may have been, I think they achieved something genuinely new in human history: a group of nations established the principle that international law is real law, and that violating international law can have real consequences.

The Talking Dog: As a follow-up to the "victor's justice" issue, Nuremberg (and its Far Eastern theater parallel "the Tokyo War Crimes Trials") did not become "institutionalized" as permanent bodies to prosecute crimes against humanity, war crimes, etc., and the Bush Administration pulled the U.S. out of the International Criminal Court (U.S. membership was never ratified by the Senate in any event), specific courts have been set up for Rwanda and Yugoslavia, although representing horrifying atrocities, neither of them remotely representing "world powers," and of course, the ICC itself has only been deployed against defendants originating in Africa. Obviously, as, following W.W. II the U.S. became arguably the most powerful empire in the history of humanity (and certainly no empire ever had as many foreign military bases in as many foreign countries), and clearly did not want its own hand checked by having its officials and operatives subject to the jurisdiction of some international judicial body not ultimately controlled by American politicians, but do you see that as the only reason for the post- WW II tribunals being a cul-de-sac or one-off, do you see any other reasons?

Rebecca Gordon: That’s a good question. In the years immediately following the war, many people expected that the tribunal established at Nuremberg would eventually turn its attention to the Allies’ war crimes as well. These included not only the use of atomic bombs on Hiroshima and Nagasaki, but the less well-known use of incendiary weapons – fire bombing – both in Europe and against Japan. In fact, near the end of the war, the United States leveled sixty-seven Japanese cities with incendiary bombs that killed half a million residents outright and burned to ashes the homes of five million more. War crimes, all.

Sadly, I think that the United States has been consistent in its reluctance to be bound by international law or international legal bodies. For example, unlike the ICC, the United States is a member of the International Court of Justice (informally known as the World Court). This is the equivalent of a civil court, in which countries can sue each other for violations of treaties or for other harms. In 1986 Nicaragua sued the United States for mining its harbors, an act of war. The court ruled in Nicaragua’s favor and granted reparations – which the United States never paid. American exceptionalism seems to mean that this country, which as you point out is the most powerful the world has ever known, considers itself exempt from the rule of law. That’s why I think it’s so important that we call our war criminals to account.

The Talking Dog: I realize that judgments are subjective and that you have space and editorial constraints, but I note, for example, that Sec. of State Colin Powell did not make your "top 22" of most "trial-worthy" officials, notwithstanding his UN speech (btw, I don't disagree with your judgment not to include him), and Sec. of State Condoleezza Rice did make your "short-list" (she was also National Security Advisor, to be sure). Let me throw out another one-- not necessarily as implicated in the "war on terror", but possibly so, and unquestionably in the category of "crimes against peace," that being recent Sec. of State Hillary Clinton, who was, in simple terms, a very effective warmonger on Team Obama. In my view, she might well be a worthy presence in the dock in her own right (and admittedly, her "damned emails" might be helpful evidence in this regard). We can throw in Mr. Obama's Defense Secretaries (Gates, Panetta, Hagel and Carter) as well, in my view. Do you have any comment on these suggestions, and what was your criteria for inclusion of hypothetical defendants in the hypothetical dock?

Rebecca Gordon: I’d say that at least since the end of World War II, the two major parties in this country have largely shared the same foreign policy. They may have differed on matters of domestic concern, but they were united in waging the Cold War against the Soviet Union and the socialist and national liberation movements in which they saw nothing but Soviet puppets.

So it’s no surprise that Hilary Clinton continues that tradition. Maybe because of the time I spent in Central America in the 1980’s, I especially hold her responsible for supporting the 2009 coup against the elected president of Honduras, Manuel Zelaya. Today, a brutal military is once again ascendant in that impoverished country. I hold her responsible for helping to create the conditions that allowed the murder of the environmental activist Berta Cáceres.

I would not be at all surprised to learn that Clinton was one of the most powerful hawkish influences in the Obama administration. Certainly her response to the horrific murders in Orlando suggests that she continues to look to military solutions for what I think of as terrible crimes rather than acts of war. I think the reason she barely appears in the book is that she’s not left behind the same kind of public records other Obama administration officials. In general one’s less likely to be obviously directing war crimes from the State Department than from various parts of the official national security apparatus.

The Talking Dog: Arguably related to the last question, from your own review, rather than pick a top "villain," do you have, say, "the medal winners" or perhaps a top five? If not names-- categories, perhaps? Lawyers (Addington, Yoo, Bybee, etc.), or politicians (Bush, Cheney, Obama perhaps), or CIA personnel (Rizzo, Tenet, Petraeus) or contractors (Jessen and Mitchell) or military (Rumsfeld, Gen. Geoffrey Miller)? Related question-- do you have a top one, three or five classification of "war on terror" conduct that warrants prosecution?

Rebecca Gordon: You’ve done a great job of listing the “medal winners.” I’d have to put Dick Cheney at the very top of the list, because although Bush bears ultimate responsibility for his administration’s actions, it’s pretty clear the Cheney was the brains of the outfit.

As to the conduct that warrants accountability: this is one of the questions I faced when trying to bring some kind of order to my story in the book. At Nuremberg, the Allies settled on three categories of crime: Crimes against Humanity, War Crimes, and Crimes against Peace. This last category caused real disagreement. The U.S. and Great Britain argued that, when they started an aggressive, unprovoked war, Nazi Germany committed the original crime, out of which all the other crimes, including the Holocaust, arose.

Similarly, I divide the crimes of the “war on terror” into three categories: Crimes against Peace, War Crimes, and Human Rights Crimes. I also label the crime against peace, in this case an aggressive, unprovoked war on Iraq, as the original crime. The torture and renditions – at Guantánamo and in CIA black sites, actually began because the Bush administration desperately wanted to get someone, anyone, to say that Saddam Hussein was responsible for the 9/11 attacks. And if you torture people enough, they will say whatever you want them to say.

You may wonder why I use the category of Human Rights Crimes. Many of the things the United States has done under Bush and Obama are genuine war crimes – violations of the laws and customs of war. These laws govern the conduct of actual wars, which involve sustained hostilities between armies. Much of what the United States has called a “war” does not fit that description. But that doesn’t mean that the kidnappings, renditions, torture, and assassinations are not crimes; they just aren’t war crimes. They are instead violations of equally valid international human rights laws and treaties. The expression “human rights violation” doesn’t carry the same verbal cachet as “war crimes.” But it should.

The Talking Dog: As we find ourselves in 2016, the war on terror, or whatever it's called, notwithstanding, it seems clear to me anyway that the global American empire is fraying on all sides-- morally, economically, even militarily (the U.S. military has not had a decisive win against a foe larger than Panama or Grenada since 1945). While, as I noted, one candidate is arguably herself implicated in possible war crimes, humanitarian crimes, etc., and was certainly an integral part of the "look forward not backward" Obama Administration, another candidate vows "to make America great again," and, despite an impressively vacuous campaign overall big on personal insults and small on actual details, he has apparently secured a major party's nomination. As bizarre as it seems (particularly given the candidate's apparent embrace of war crimes), in an "Only Nixon Could Go to China" scenario, do you see it as possible that while Barack Obama might want to "look forward not backward," that, in a very real and legally binding sense (rather than in a rhetorical "citizen's tribunal") "Only Trump Could Give Us Nuremberg?" [in the sense of the tribunals rather than the evocative-of-Lani-Riefenstahl style of his campaign rallies]?

Rebecca Gordon: Wow. I understand what you’re suggesting, but I can’t see it, especially in the light of Trump’s posturing after the Orlando murders. I don’t think it would play with his audience, and I think his only guiding principle is to do whatever will continue to garner him the attention he seems to crave.

The Talking Dog: Your previous book, "Mainstreaming Torture," suggests, of course, a reckoning for those who "mainstreamed torture" into the American context, and, of course, this includes the horrific treatments meted out to "high value detainees," other detainees in CIA, military or other country custody and detention, and prisoners taken in Iraq and Afghanistan, that, despite fourteen and a half years of official euphemism, are "torture." You have carefully addressed each of the three "Nuremberg categories" of crimes in your book and bill of indictment (war crimes, crimes against humanity and "crimes against peace"), and admittedly, the lynch-pin does seem to be the "crimes against peace"-- decisions by politicians to commence wildly disproportionate military responses, both against Afghanistan (a war in which we forget that the Taliban were rather quickly routed by a force of largely proxies and a small American and NATO footprint, at least at the start) and, of course, against Iraq, which has resulted in a massive invasion, "shock and awe," illegal munitions and tactics, and, of course, hundreds of thousands of civilian casualties, millions of displacements, and the rise of a failed official state as well as "the Islamic State." I would also suggest the "planet as battlefield" is more real than we care to admit, with only places likely to respond with nuclear weapons [Russia, China, North Korea and their closest allies] seemingly off-limits to drone strikes, "special operations," "military advisers," or whatever applicable euphemism for American military action is in play. All that said, would you have been motivated to write about this subject absent the torture... in other words, in the horrific major American wars of the last century (the World Wars, Korea, Vietnam, the first Gulf War, not to mention the Cold War), it is almost indisputable that abuse of prisoners and others occurred (and certainly CIA activity in the Cold War often strayed into torture). And, of course, at least some of these (if not most) can be termed "aggressive wars." That said, would you agree that there is something qualitatively different-- as in hearkening to the Third Reich different-- about regimes such as the Bush Administration that go out of their way to pretend that torture (and summary execution via drone-strike as endorsed by our current "constitutional scholar President") is legal that seems, regardless of scale, to take us into another dimension of horror warranting perpetrators being brought to account in a way that mere "initiating aggressive war" might not be enough? In other words, does the pretense that some of the most outrageous actions are "legal" actually make them worse?

Rebecca Gordon: Absent the torture, I might have still been motivated to write a book about U.S. crimes against peace, but I’m not sure anyone would have asked to publish it!

I think you’re right that there is something especially horrifying about these attempts to pervert the meaning of law. For me, though, what’s most disturbing isn’t so much the claim that torture is legal, as the claim that it doesn’t matter whether or not it’s legal – if that is the necessary price of “security.” As you point out, the U.S. is still the world’s most powerful nation (and the fact that it’s faltering only makes it more vicious). I’d argue that the country’s utter contempt for the rule of law makes it more dangerous still.

About torture in particular, I’d also suggest that it’s not only the violation of U.S. laws and international treaties that shocks the conscience. It’s the breakdown of a moral consensus in this country that torture is wrong. It’s a shameful fact that the further away we get from the 9/11 attacks, the more people will tell pollsters that torture is sometimes or often acceptable.

The Talking Dog: As you note in your book, it seems inconceivable that accountability of any kind will be meted out by the American civilian or military justice system (although, perhaps, the occasional official may travel to the wrong foreign country, and face some level of accountability there). Rather than the self-interest of the powerful to enforce their "elite immunity," which is obviously in play, let me come at this from another direction: I've always believed that a huge portion of the American public (for reasons unique to it, i.e., our isolation in the world via our status as a remote continental power-- on a micro-scale, the phenomena might be observed in housewives in suburban and exurban America whose isolation seems to drive them into reactionary politics) have been duly conditioned to believe there is a terrorist lurking under every rock and behind every tree, and genuinely feel that anything and everything done to "make us safe" is fair game-- helped along by Twenty-Four and denizens of "controlled torture" and the ridiculous "ticking time bomb" scenario, ranging from Alan Dershowitz to the late Antonin Scalia (both evidently fans of the show). I note that it's be my anecdotal personal observation that people in closest physical proximity to the events of 9-11 tend not to feel this way. All that said, have people of goodwill in this country, who believe in norms of human decency (not to mention compliance with laws international and domestic) now actually become the outliers? On the optimistic side, I admit it may merely be simply "a large portion" of the populace (as well, as of course, a complete consensus among elites) that this is the case, but how hard do you think that nearly fifteen years of post 9-11 fear-mongering (and in the interim, the introduction of the total-surveillance and total-security state) will be toward establishing even a rhetorical "citizens" accountability tribunal? How would you address this factor?

Rebecca Gordon: That is the question, isn’t it. My working title for Mainstreaming Torture was A Nation of Cowards, but the publisher thought that was a little over the top. Unfortunately, I think you’re absolutely right that 15 years of fear-mongering, combined with the occasional actual attack, has convinced many people in this country that no price is too great to pay for “security.” The truth, of course, is that no amount of surveillance, no amount of torture, or assassination, or boots on the ground, can keep the promise of immortality that successive administrations seem to be making: “Let us do whatever we must, and in return we promise that you will always be secure.”

How do you make a cultural change? I don’t know, but what I will say is that we’ve seen a cultural shift in the last few years on two issues that Black communities have been talking about for decades: police violence and mass incarceration. I’ve had the privilege to play bit parts in many movements for justice. Why does a movement like Black Lives Matter catch fire? I’m still mystified about how it is that you can bang your head against a particular wall for years, and then one day, instead of a wall there’s a door. But you have to be ready when the door opens to rush through.

One thing that gives me hope is the students I’m teaching today. They’re over half young people of color; thirty percent are first generation college goers, and compared to their peers a decade ago, they are much more engaged with the political world, much more prepared to take up the mantle of citizenship in its largest sense.

The Talking Dog: Related to the previous question, given media complicity with the total security state, assuming, as you suggest, a blue-ribbon panel of thinkers, scholars, public officials and perhaps lawyers and judges could be assembled to run a modern "Russell-Sartre Tribunal," that anyone not physically present or in the immediate email and social media circle of the participants would even hear about it?

Rebecca Gordon: Fair question. Perhaps not. It would depend on the caliber of participation we were able to pull together, and whether we could get any buy-in from mainstream media. There are attorneys whose clients are still in Guantánamo who’ve expressed an interest. I’m in touch with people who think they might be able to get torture survivors to testify. If they can’t get their day in (even civil) court, maybe they can at least be heard and their stories acknowledged.

The Talking Dog: Is there anything else I should have asked you but didn't, or that my readers and the public should know about these critically important subjects?

Rebecca Gordon: Only that we must not surrender to despair. To use another metaphor, working for justice is sort of like surfing. You sit out in the ocean, watching and waiting and keeping hope strong for that wave. And when it comes, you have to be ready to catch it. And it will come.

The Talking Dog: I join all my readers in thanking Rebecca Gordon for that thought-provoking interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with former Guantanamo military commissions prosecutors Morris Davis and Darrel Vandeveld, with Guantanamo military commissions defense attorney Todd Pierce, with former Guantanamo combatant status review tribunal/"OARDEC" officer Stephen Abraham, with attorneys Nancy Hollander, Jon Eisenberg, David Marshall, Jan Kitchel, Eric Lewis, Cori Crider, Michael Mone, Matt O'Hara, Carlos Warner, Matthew Melewski, Stewart "Buz" Eisenberg, Patricia Bronte, Kristine Huskey, Ellen Lubell, Ramzi Kassem, George Clarke, Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with former Guantanamo sergeant-of-the-guard Joseph Hickman, with former Guantanamo military guard Terry Holdbrooks, Jr., with former military interrogator Matthew Alexander, with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with law professor Peter Honigsberg on various aspects of detention policy in the war on terror, with Joanne Mariner of Human Rights Watch, with Almerindo Ojeda of the Guantanamo Testimonials Project, with Karen Greenberg, author of The LeastWorst Place: Guantanamo's First 100 Days, with Charles Gittings of the Project to Enforce the Geneva Conventions, Laurel Fletcher, author of "The Guantanamo Effect" documenting the experience of Guantanamo detainees after their release, and with John Hickman, author of "Selling Guantanamo," critiquing the official narrative surrounding Guantanamo, to be of interest.