“The first thing we do, let's kill all the lawyers,” exclaimed Dick the Butcher, a zealous follower of revolutionary Jack Cade in the second part of Shakespeare's Henry VI.
Attorney and law professor William C. Bradford, until recently an instructor at West Point, would be a bit more discriminating. Rather than killing all lawyers or legal scholars, Bradford would designate as “enemy combatants” those who criticize the U.S. government's foreign policy, or offer to defend suspected terrorists out of a commitment to due process and the Bill of Rights. Thus branded, attorneys and scholars would be eligible for the full menu of punitive options, including extra-judicial arrest and indefinite detention, trial by military tribunals, torture, and even summary execution.
“The West must shatter Islamists' political will and eradicate those who do not renounce Islamism,” insists Bradford in a 185-page diatribe entitled “Trahsion des Professeurs: The Critical Law of Armed Conflict Academy as an Islamist Fifth Column,” which was published in the Spring/Summer issue of the National Security Law Journal. “All instruments of national power – including convention and nuclear force and PSYOPs [psychological warfare operations] – must be harnessed … to capture the hearts and minds of Islamic peoples, break their will to fight for Islamism, and leave them prepared to coexist with the West or be utterly eradicated....”
In confronting an existential crisis, Bradford asserts, “survival is its own justification.” There is no room for “legal fetishists” who are skeptical of decisions by the executive or military leadership: “Americans are entitled not only to political leaders who employ and all necessary measures but to the strong presumption such measures are legal, and to the salutary effects of this presumption upon their belief in the virtue of their cause and their will to fight for it.”
“Fighting total war demands a mental reconfiguration” on the part of the public by resolving “arguments over how to balance security and liberty in favor of security,” Bradford insists, and “acculturating the necessary fighting spirit” in the population through mass propaganda and, where possible, conspicuous punishment of dissidents.
“Spartanization of the West will require the deepening of the concept of citizenship to include duties as well as rights.... Rights are attended by corresponding duties, and the state may obligate citizens – even academics – to contribute to to the struggle in those ways they are able.”
Refusal “to acknowledge the Islamist threat as an existential challenge to Western Civilization, and to … unite to defeat that threat, would be the greatest dereliction of duty in history,” he insists.
To wage “total war” against a tenacious and all-but-omnipresent enemy, all restrictions on government power must be supplanted by what he calls the Law Of Armed Conflict (LOAC). In this, the executive is emancipated from checks and balances and the constitutional subordination of the military to civilian control is reversed: “[I]t is the military upon whom the constitutional duty to defend Americans is incumbent, and in whom Americans repose trust.”
Bradford refers to scholarly critics of Washington's open-ended war against Islamism as the Critical Law of Armed Conflict Academy, an awkward and contrived expression created to justify the pungently dismissive acronym CLOACA. While admitting that “no membership roll exists” of that intellectual cohort, and declining to name specific examples (most likely out of a desire to avoid civil liability), Bradford insists that scholars who fit within that amorphous category constitute an “Islamist Fifth Column,” even when no evidence of conscious collaboration exists.
Scholarship that challenges the “autonomy” of the Pentagon, or “dismiss[es] military wisdom” by questioning the legality, constitutionality, or morality of foreign wars, indefinite detention of terrorism suspects, or the use of torture as an interrogation technique are not mere academic exercises. Instead, they are a form of advocacy that “attenuates U.S. arms and undermines American will, [and] are PSYOPs. Which are combatant acts,” Bradford insists.
As “propaganda inciting others to war crimes, such acts are prosecutable..... CLOACA members are thus combatants who, like all other combatants, can be targeted at any time and place and captured and detained until termination of hostilities” – without judicial recourse. Assuming that “CLOACA members” would be treated in the same fashion as their supposed Islamist comrades, they would be subject to “judicial execution post-interrogation” if this were considered justifiable as a matter of military necessity.
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The threshold for such treatment is astonishingly low. Academic dissenters who publicly describe the U.S. government as “an `aggressor' or employer of illegal methods and means, or [cast] aspersions on U.S. motives” for carrying out military operations display “an intent to betray the United States” or to give aid and comfort to the enemy, Bradford contends. Those thus identified would be subject to what Bradford calls a “counterattack” involving a range of options drawn from a continuum of “increasing coercion” – including mandatory loyalty oaths, termination from employment, formal criminal charges for “material support of terrorism” or even “treason” – a capital offense.
Ominously, in the wake of the summary execution, via drone strikes, of U.S. citizen Anwar al-Awlaki and his American-born, 16-year-old son Abdulrahman, Bradford insists that scholarly critics of Washington's terror war who “commit treason, or otherwise engage in unlawful combatancy … must answer for their delicts just as any others do. The perversity inherent in countenancing intellectual elitism as a basis for a defense against prosecution and a grant of immunity from targeting in war is astonishing.” (Emphasis added.)
Elsewhere in the essay, Bradford observes that “enemy combatants may be targeted and killed wherever and whenever they can be found” and that “UAVs [that is, missile-bearing drones], as with other weapons systems, do not require that targets of targeting killing be afforded a warning or judicial process before use.”
The coercive “counterattack” against so-called “CLOACA members” would not be limited to lawyers or scholars who express critical views.
“[The] infrastructure used to create and disseminate CLOACA propaganda – law school facilities, scholars' home offices, and media outlets where they give interviews – are also lawful targets given the causal connection between the content disseminated and the Islamist crimes incited. Shocking and extreme as this option might seem, CLOACA scholars, and the law schools that employ them, are – at least in theory – targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism.”
In assessing the legitimacy of an envisioned punitive strike against a “Fifth Columnist,” the last consideration – supposed military necessity – trumps all of the others. In previous armed conflicts, the U.S. government has authorized lethal strikes against media facilities used to broadcast critical coverage of American military actions. During the 1999 Kosovo conflict, the office of Radio Television Serbia suffered a U.S. missile strike that killed sixteen people. In April 2003, Al-Jazeera correspondent Tarek Ayoob was killed when a U.S. warplane bombed the network's Baghdad office. An employee of the Reuters news agency was killed, and several of his colleagues were wounded, in the notorious July 12, 2007 “collateral murder” airstrike in Baghdad. Chelsea Manning, then known as Private Bradley Manning, was criminally charged, subjected to abusive detention for 112 days, and eventually sentenced to prison for providing the video record of that atrocity to the Wikileaks organization.
Bradford's blithe recommendation that the military target the institutional “infrastructure” – including media outlets – used to disseminate “CLOACA propaganda offers a portentous counterpoint to the recently publicized Pentagon “Law of War” manual outlining circumstances under which journalists could be treated as “unprivileged belligerents.”
Invoking war suras from the Koran, and imputing treasonous motives to all outspoken critics of the unending war on terror, Bradford insists that Western civilization has been seized, encompassed, and ambushed “by a Fifth Column, and will be vanquished, subsumed within the Caliphate, and ruled by Shari'a if a trahison des professeurs [treason of the professors] goes unchecked.” Just as he scruples at no means to “wipe Islamism and if need be its adherents … from the earth,” Bradford rules nothing out in his proposed campaign to bring so-called CLOACA adherents “to heel via criminal law or force of arms.”
Anticipating critics, Bradford acknowledges that some might complain that his overwrought essay “incites authoritarianism insofar as it counsels militarization, withdraws debates over the enemy from the political arena, vilifies those who fail to acknowledge a grave threat, punishes disloyalty, and takes up law as sword and shield to defend and destroy political will.” Rather than explaining how that critique is inaccurate, Bradford parries such objections by insisting that “mobilization on all fronts is as necessary as a response to the current threat condition as it was during World War II.”
Bradford's disdain for dissent, due process, and the rule of law do summon comparisons with a World War II-era legal revolution. In his study Hitler's Justice: The Courts of the Third Reich, Ingo Mueller describes how the Nazified German legal system was founded on the assumption that “the `national aim'” was the central organizing principle of society, and all guarantees of rights and limitations of state power yielded before the doctrine of “national emergency.”
Citing the rulings of the German Supreme Court and the writings of influential Party-aligned jurists, Mueller writes that the Nazi-era equivalent of Bradford's Law Of Armed Conflict dictated that “objectivity finds its limits … when the national security is placed in doubt.” Every judge and lawyer was required to be “a son of his country” who would “place the vital interests of the nation unconditionally above what is formally the law.”
Bradford spent several years teaching law to West Point cadets before being forced to resign in August. Significantly, he wasn't terminated for his advocacy of a genocidal foreign policy or a totalitarian campaign to suppress domestic dissent, but rather for inflating his military resume by falsely claiming to have received a Silver Star for combat duty in Desert Storm.