U.S. Border Patrol Kills Mexican Teenage Stone Thrower Protesting the Occupation

The map shows El Paso belonging to Mexico until the mid-nineteenth century, when the U.S. government acquired sovereignty after invading Mexico City. (It is taken from a Latin American Studies web page that has several excellent maps on the land grab.)

Today's Los Angeles Times features an AP story "Border Patrol in El Paso kills Mexican teen":

Preliminary reports on the incident indicated that U.S. officers on bicycle patrol "were assaulted with rocks by an unknown number of people," Border Patrol Special Operations Supervisor Ramiro Cordero said Tuesday.

The article connects this violence with the U.S. government's targeted and deadly electrocution of someone walking across the border in California:

Less than two weeks ago, Mexican migrant Anastasio Hernandez, 32, died after a Customs and Border Protection officer shocked him with a stun gun at the San Ysidro border crossing that separates San Diego and Tijuana, Mexico. The San Diego medical examiner's office ruled that death a homicide.

The article offers a compassionate portrait of the death's impact on the teenager's family. But, resembling coverage of similar events in Israel-Palestine, the reporter quotes extensively from the U.S. government explaining its armed presence in the area and provides no response from political and religious organizations challenging this.

Of course the real problem is not the unrecognized principle of Mexican or any other nation's sovereignty, but unrecognized principles of justice that require free movement and thus the elimination of birthright citizenship.

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For a more balanced story, including an eyewitness challenging the Border Patrol version of events, listen in to NPR's Monica Ortiz Uribe on "All Things Considered."

Daniel Ellsberg and His Country: An American Love Story

"The Most Dangerous Man in America," a documentary by filmmakers Judith Ehrlich and Rick Goldsmith, is being shown in Los Angeles and New York (until September 29th at the Film Forum) as well as film festivals. I hope it gets a broader release because it's best seen in a theatre, not because of the film's cinematic qualities but because that's one way to feel what Ellsberg and the filmmakers show us: individual conscience is a group activity.

The film, brilliantly edited, tells a number of stories and stories-behind-the-stories (and it was a nice surprise to encounter in the film my friend and co-editor Richard Falk, himself a distinguished anti-war scholar and activist).

As political narrative the opening scenes depicting the Johnson White House's fabrication of Vietnamese aggression to elicit Congressional authorization for the Vietnam War are surreal in their spot-on resemblance to how Cheney obtained approval for the Iraq war. The insidiously crafted bogus threats indicating America was vulnerable worked their magic on two gullible Congresses. In the film, as in life itself, the people's branch of government comes off almost as bad as the imperial presidency.

(When Ellsberg first tries to leak the Rand Corporation's 7,000 page "Top Secret" report documenting U.S. lies behind the conflict dating back to the 1950s, it was to a spineless Senator J. William Fulbright, Chair of the Senate Foreign Affairs Committee who, despite his supposed rejection of U.S. policy, pretended as though the report did not exist. Ellsberg was shocked that politicians who had opposed the war for much longer than he had were too scared to release documents that might have ended it. He spent months carefully organizing the report's copying and delivery, and then nothing happened.)

It took months of smuggling out pieces of the report and then copying them in a secret location before Ellsberg had enough copies to share with key politicians. For this, Ellsberg believed that he might go to prison. In a typically thoughtful choice of honesty over secrecy, which also was an attempt to insure his 14-year-old son and nine-year-old daughter would not think him a kook -- what would they think if one day he's suddenly arrested as a traitor? -- he explained what he was doing as he was doing it. More than that, he wanted to honor them by including them in this important work; one evening his son was making the copies and his daughter was cutting off "Top Secret" at the top.

Ellsberg knew that he was putting his children at risk in various ways, including possibly sentencing them to a father behind bars, but preferred this over the certain calamity of lies. One of the film's motifs is calling into question bourgeois ideals of family and security, suggesting that these values corrode integrity and life itself. (If you care more about what your friends and co-workers think of you than you do about government bombing of civilians, innocent people die.)

Children 10 or older will really enjoy this film.

Why is this an American love story? Because it opens with a recently divorced Ellsberg working as a defense analyst and wooing a woman who, while drawn to him, could not abide by his support of the war. She ends their relationship but it seems that she started a process that profoundly changed him. Later, as Ellsberg is on the brink of leaking the Pentagon Papers, they reunite, marry, and Patricia supports him in this decision and goes underground with him for a while.

But more than their personal relationship, this is a story of Ellsberg's commitment to his government and democracy, faith in the idea that if the people knew the truth, they would do the right thing and end the war. A refrain that occurs more than once is Ellsberg's incitements of his fellow citizens to action. Quotations from Thoreau, Gandhi and Martin Luther King, Jr. come easily to him.

Despite the film's concluding notes indicating Nixon's resignation and the end of the Vietnam War, the Pentagon Papers seem to have played more of a role in the former than the latter. Nixon becomes consumed by revenge after the Supreme Court allows the press to publish the Pentagon Papers and this leads him to establish the secret "plumbers" group that would break into Ellsberg's psychiatrist's office and, later, bug the Democrats at the Watergate complex.

It seems a little sad but also fitting that the virtues of the woman Ellsberg married and that she admired in him meant so little to the country on whose behalf these passions were devoted. At one point Ellsberg quotes the aphorism "if I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country" and tells us that he never understood why anyone would endorse loyalty to a friend instead of one's country when morality seemed to demand the opposite. There are a few other comrades-against-arms we meet who embody the Ellsbergs' ideals, all allies through the peace movement, but America does not come off as an obviously worthy love interest.

True, there is justice and even poetry when the judge in the Ellsberg and Russo case declares a mistrial and dismisses the charges after a Nixon henchman tried bribing the judge by promising him a high-level FBI appointment, but in the end Ellsberg seems to realize that the leaked report, the words themselves, did not really matter and his country would act in the same stupid way it always had. Ellsberg reflects on what it meant that after all he risked and lost, people seemed not to care.

It is unclear whether Ellsberg believes that his love for America has been betrayed, will remain ineluctably unrequited, or whether America might someday reciprocate. Perhaps that's what makes this such a great story.

UPDATE, 9/28/09: Today's column by Frank Rich shows how these debates from the 1960s are being rehashed in the Obama White House.

Anti-War Arguments: Vietnam v. Iraq

For the last week of the "Law and Politics" course I teach, students attended a screening of "Weather Underground," a 2002 documentary by Sam Green that Obama's presidential campaign made relevant again for its interviews with Bill Ayers. (Ayers, a former key player in the Weather Underground and now a professor at Northwestern University Law School, was the guy whose acquaintanceship with Obama demonstrated the latter's inclinations to terrorism.)

One of the bits of the film that always strikes me is that the Students for a Democratic Society as well as the Weather Underground offshoot objected to the war largely because it was killing and maiming Vietnamese villagers by the dozens, hundreds, thousands, tens of thousands, and eventually millions.

Like Henry David Thoreau, and unlike the contemporary left rhetoric against U.S. occupations in Iraq and Afghanistan, the protesters in the 1960s objected to a war of aggression because they did not want to be cogs in a machine that was systematically crushing an innocent population, not because they were worried about the deaths of U.S. soldiers.

Here's what Thoreau wrote, in the essay now published as "On the Duty of Civil Disobedience" and originally titled "Resistance to Civil Government" (1849), an inspiration for Gandhi as well as Martin Luther King, Jr.--the reading is paired with their watching "The Weather Underground":

"Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents on injustice. A common and natural result of an undue respect for the law is, that you may see a file of soldiers, colonel, captain, corporal, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart."

The injustice Thoreau had in mind was the war on Mexico and Mexicans on behalf of filibuster terrorists (mostly U.S. citizens) trying to establish slavery in northern Mexico in violation of its Constitution. He could not imagine U.S. citizens could rationally support this war and yet despite their objections, he noted that they still served in the army carrying it out. )

Thoreau and other writers never imagined that the government could attract this lemming-like support for imperialism and mass killing without a draft. Nor, one thinks, would they imagine that pacifists would support soldiers for their patriotic service. I know this is not fashionable but I have no patience for sympathy extended by commentators on the Left to "our soldiers" IN A VOLUNTEER ARMY when little is said about the people in the countries who did not choose to be invaded. And yet in their stress on the harms the wars are causing U.S. soldiers and their silence on the civilians killed by U.S. drones attacking homes in Pakistan and Afghanistan, the Left has capitulated to a cheap provincialism. Rachel Maddow and Keith Olbermann are indistinguishable from Rush Limbaugh in mouthing platitudes about people who have agreed to kill because they are either mercenaries or zealots, neither of which are motives worthy of respect from progressives.

A few days ago I asked students in my class at the University of California at Santa Barbara to discuss the difference between the anti-war arguments in the film and those by the Left today. The response paraphrased:

'The Vietnamese were Communists and this war is fought against terrorists. People in the United States in the 1960s were more open to Communism than they are today to terrorism.'

The course I teach is about theories of sovereignty and offered no information about the Vietnam War; my question was to provoke them to think about why there might be this disparity. The response, both illogical and inconsistent with historical facts, was fascinating to me. The only way that they could imagine an anti-war movement would stress the harms war caused non-U.S. populations was to impute to the U.S. public in the 1960s a sympathy to Communism! (They explained that the Left didn't need to worry about a Right that would attack them for these arguments because the U.S. public was open to Communism, unlike the contemporary U.S. public which is terrified of terrorism, so to speak, and will allow harms against anyone, except U.S. soldiers, apparently, to thwart this.)

But really the weird answer is because of a misleading premise in my question. There is no anti-war movement today. Although the anti-war movement in the 1960s and 1970s spoke on behalf of the Vietnamese under siege by the U.S. government, the fact that there was a draft perhaps made war politically salient to a student population (and their parents) that today finds it a remote sideshow.

According to the Revolutionary Association of Afghan Women, the source of the image above of graves being prepared for Masmo villagers killed by the U.S., Obama has been worse for Afghan civilians than Bush: In January they estimate between 78-83 civilians were killed by the drones he ordered into Pakistan and Afghanistan.

Perhaps the only way the U.S. public might care about the people the U.S. government invades is to make sure that our youth are also targeted as potential invaders. Hard to know if we would have had more war if our Presidents could call up millions at short notice (the worry of the U.S. Congress that ended the draft in 1973), or fewer, for the same reason.

43 Years Ago Today at 7:15 pm EST...

the United States government's Enola Gay airplane dropped nuclear bombs on Nagasaki and Hiroshima, instantly killing tens of thousands and leaving hundreds of thousands to die from their internal and external radiation burns. The United States, which recently invented the Weapons of Mass Destruction excuse to invade Iraq, has been the only country to use nuclear weapons in war, and the only country to kill such a large number of civilians in a single attack.

Here's what one US citizen wrote in his letter to Time magazine on August 6, 1945:

Sirs,
The United States of America has today become the new master of brutal infamy, atrocity. Bataan, Buchenwald, Dachau, Coventry Lidice were tea parties compared the horror which we, the people of the United States of America, have dumped on the world in th form of atomic energy bombs. No peacetime applications of the Frankenstein monster can ever erase the crime we have committed. We have paved the way for the obliteration of our globe. It is no democracy where such an outrage can be committed without our consent!

Walter G. Taylor of New York City

Republicans Point out Hypocrisy of Anti-Torture Legal Scholars

Ric Keller (R-FL): "Isn't killing the ultimate torture?"

Walter Dellinger, Solicitor General under President Clinton and currently a law professor at Duke University Law School visiting at Harvard Law School was questioned by Rep. Dan Lufgren (R-IN) and Rik Keller (R-FL) during the House Judiciary July 17 hearings on interrogations. These Republicans deftly revealed the hollowness and distraction of the anti-torture legal analysis in this country.

To paraphrase the Republicans' line of questioning highlighting the absence of a serious peace movement: why are these liberal scholars so self-righteous in protesting the torture of a few detainees (who clearly should not be held this way much less tortured), but say nothing about our policy of killing hundreds of thousands of innocent civilians, and indeed support targeted assassinations?

Dellinger had been making the case of "24"-s Jack Bauer--the President in the case of a "ticking time bomb" can authorize torture, but then needs to turn himself in and be accountable. (Bauer regularly breaks laws but acknowledges this is his decision, for which he will accept the legal consequences.)

Lufgren made a really great point in pressing Dellinger to distinguish the narrow case of torture from the President's use of weapons of mass destruction against innocent civilians on a daily basis. Dellinger folded.

Here's the exchange (at 1:48 on the hearing streamed via C-SPAN).

Lufgren: Mr. Dellinger, you set up a scenario by which you think we ought to operate, that is in certain dire circumstances the president ought to break the law by directing people to break the law to do something that should save American lives. If that had been the case in WWII should Pres. Truman have submitted himself to the law after he ordered the dropping of the atomic bomb on two occasions.

Dellinger: I don't know that that was unlawful, in violation of any statute.

Lufgren: Even though that ended up with the loss of many lives that were innocent men women, and children who were not described in any way as belligerents or combatants?

Dellinger: I think that may well have been in the scope of his authority.

Later, Ric Keller (R-FL) pushed even further (at 2 hours):

Keller: It seems to me that the gist of your testimony is that it was okay for the Clinton Justice Department to authorize the killing of bin Laden but it's not okay for the Bush administration to aggressively question terrorists who want to kill us, and that seems just a bit inconsistent to me.

Dellinger: I can answer that precisely.

Keller: Okay.

Dellinger: The reason is quite simple. It would not have been against the law of the United States to assassinate bin Laden. It was against the law of the US to engage in torture. Those are decisions that have been made by Congress.

Keller: Isn't killing the ultimate torture. I mean, my god. What worse torture is there than killing somebody?

Dellinger We kill enemy combatants all the time. That is very different. than subjecting them to cruelty. I happen to have a personal belief that the executive order forbidding assassinations, whenever that's been in effect, is probably a mistake.

Keller: Let me just say to you. We have a Supreme Court and they just ruled that the death penalty was too cruel and unusual a punishment for someone who raped an 8 year old girl. So if the death penalty is too cruel of an unusual a punishment, how the hell is it okay to kill someone but not okay to aggressively question them?

Dellinger: Well, Osama bin Laden is not a United States citizen and not being detained in the United States, under the custody of the United States, and therefore, has no Constitutional rights.

Keller: But you agree with me that the Clinton Justice Department specifically authorized the killing of Osama bin Laden?

Dellinger: I am not privy to that, nor could I address it if I did.

Keller: I'm privy to that, and hell I was in school during that administration, because I'm looking at page 132 of the 9-11 Commission Report and I'll let you be privy to it now. “The new memorandum would allow the killing of bin Laden. The administration's position was that under the law of armed conflict, killing a person who posed an imminent threat to the United States would be an act of self-defense, not assassination. On Christmas eve 1998 bin Laden [sic] sent a final draft to President Clinton with an explanatory memo. The President approved the document. Because the White House considered this operation highly sensitive only a tiny number of people knew about this memorandum of notification. A message from Tenet to CIA field agents directed them to communicate to the tribals the instructions authorized by the President of the United States that preferred that bin Laden and his lieutenants be captured, but if successful capture operation was not feasible the tribals were permitted to kill them.”

Now you see the contradiction. You have testified with respect ot questioning from my colleague from California Mr. Lungren, that even with Khaled Sheikh Mohammed, that is not an exceptional extraordinary circumstance that should allow us under the law that should allow us to question him aggressively, right? He's not a United States citizen. That was your concern before, but he's not a United States citizen..

Dellinger: The question you're asking, I think is a question directed to the Congress of the United States. And if there's a contradiction between our legal authority to assassinate persons who are foreign leaders and the prohibition on torture that's to be resolved by Congress. My concern is that the claim in this, the fundamental flaw in these memoranda is that they take the term “the inherent authority of the president,” that is, what a president can do in the absence of any prohibition by Congress, which I think is a broad area in the area of national defense, and then will say once Congress has enacted a criminal prohibition, the President can still do it because it's quote within his “inherent authority.” That, I think, fundamentally disregards the central role of Congress in establishing what the law is.

Analysis. Dellinger is trying to avoid the blatant ethical hypocrisy of picking on the government for torturing a few people while ignoring the widespread suffering caused by, say, an atomic bomb, the effects of which are torture by any measure, by shifting the problem to Congress. Not only does the magnitude of the contrast warrant comment, even if it is on Congress' decision-making, but Keller is making an astute Constitutional point and not just one about statutes.

Keller is pointing out that the Supreme Court has declared that when the state executes people who are criminally convicted of raping children, that is torture under the Eighth Amendment. Dellinger tries to claim that because the murder of civilians and targetted assassinations are authorized by law, this makes them different from torture that violates the law. But if a legislative body passes statutes that are unconstitutional, e.g., executing rapists, then these are not laws.

If the Supreme Court says killing people who are not convicted of killing someone else is "cruel and unusual punishment" then isn't that an interesting argument against dropping bombs on civilians? The argument would be novel and is not the direction that this Supreme Court would go. But it is an intriguing opening that anyone who truly cared about the excesses and cruelties of state sovereignty would pursue. Dellinger's effort to deflect this line of questioning by claims about state custody is not only ethically indefensible but also incorrect in some cases, for instance, when the US government is an occupying power.

Rather than advancing a marginal if not distracting question about the US use of torture in a few dozen cases at most, why not hearings on the US army killing hundreds of thousands of foreign civilians?