Outsourcing Justice

After four private security contractors were killed in Fallujah in March 2004, the U.S. retaliated against the entire city. U.S. forces even used white phosphorous, to horrific effect.

Now, the families of the slain guards are suing the guards’s employer, Blackwater USA, for contractual violations which allegedly endangered the men. For instance, the escort mission they were on was supposed to have three men in each car. But only two men were in each car, meaning that each vehicle lacked a rear gunner.

It costs money to hire guns. But how much — and who pays?

Scott Helvenston, one of the Blackwater men killed in Fallujah, was paid $600 per day. Blackwater billed a company in Kuwait $800 per day for Helvenston’s services. In turn, the company in Kuwait billed a Cypriot company, E.S.S., which reportedly got the contract from Kellogg, Brown, and Root, a subsidiary of Halliburton. And Halliburton got the job from us.

Suppose each link in the chain made $200 per day for its part in outsourcing Helvenston’s job. That’s $600 for Helvenston; $1000 for the middle-men.

It’s easy to see why business favors a volunteer army and privatization of the military. After all, isn’t business always more efficient than government?

To glimpse the true nature of the enterprise, however, forget about the money and watch the legal shenanigans. Purely for the sake of argument, assume that some actionable fault led to the death of Helvenston and the others. So what?

When Iraq was under the control of the Coalition Provisional Authority, U.S. contractors were exempted by decree from Iraqi laws. And Iraq is clearly in no position to enforce its laws over anybody today. Blackwater USA is not subject to the Uniform Code of Military Justice; and apparently, U.S. law does not apply because the assumed offense occurred outside the United States.

Imagine for the moment that Helvenston and the others were never sent on that fateful mission. Imagine instead that a Blackwater supervisor simply walked up to them and gunned them down. So what? Who could arrest him? What jury, if any, would hear the case? What law did he break?

George Bush, Junior oversaw the creation of the Coalition Provisional Authority, which authorized viceroy Paul Bremer to issue such decrees. On April 17, 2006, Bush spoke at John Hopkins University and took questions from the audience. A student briefly summarized the controversy surrounding the legal status of private military contractors. “I would submit to you,” the student said, “that this is one case [where] privatization is not a solution:”

…Mr. President, how do you propose to bring private military contractors under a system of law?

And Bush replied:

Yeah, I appreciate that very much. I wasn’t kidding. I was going to — I pick up the phone and say, Mr. Secretary, I’ve got an interesting question. This is what delegation — I don't mean to be dodging the question, although it’s kind of convenient in this case, but never — I really will. I’m going to call the secretary and say you brought up a very valid question, and what are we doing about it? It’s — that’s how I work.


We are outsourcing justice. In the United States of America, we are outsourcing justice itself. So when we run out of it here at home, we’ll only have ourselves to blame.

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The Sinful Messiah

They were Christians in the ordinary sense. They believed that Jesus is the son of god and he is in heaven. They believed in Biblical prophecies concerning end times and salvation. In particular, they studied Revelations, which tells of a great book at the hand of god, bound with seven seals. Only the Lamb of God can open the last seal.

They believed that seven messiahs would come before the end of the world, and the last would be the sinful messiah. That did not mean he would deliberately sin. It simply meant that, unlike Jesus, the seventh messiah would not be without sin. He would be an ordinary man, born into sin as we all are. He will father twenty-four children who will fall to the armies of Babylon. They will be killed by fire and will preside as angels in heaven.

I don’t hold any of those beliefs; I think they’re all nonsense. But the Branch Davidians had a right to their beliefs.

Like thousands of people in Texas, they bought and sold guns. There’s a lot of money to be made buying weapons which appreciate in value; and there are a lot of gun dealers in Texas. All gun dealers “stockpile” weapons; that stockpile is called an inventory. Many of the Davidian neighbors owned multiple weapons. Furthermore, when Jesus was arrested, he told his followers not to resist. But he also said that henceforth, he who was without a sword should take up a sword.

I think that story is ridiculous. But under the Constitution, Davidians had the right to believe it; and they had the right to keep and bear arms.

Congressional budget hearings were approaching. The Bureau of Alcohol, Tobacco, and Firearms was planning a dramatic raid to demonstrate how vital the Bureau was to the security of the nation. They were investigating a Christian commune in Texas that sold firearms. On February 28, 1993, the B.A.T.F. was not outgunned. They had three helicopters carrying armed men; they had nearly eighty men armed and armored. They had video cameras and fax machines. They had media contact phone numbers. They were ready.

Incredibly, however, they didn’t have contact information for ambulances or hospitals. When the B.A.T.F. took casualties, they had to ask a reporter to call for help. They simply never imagined they would meet resistance. After all, they were only serving a search warrant. There were no charges at that point, and the Bureau had already avoided an opportunity to inspect the suspect premises. They were going to search Mount Carmel, and they were going to get it on tape.

The Davidians had lived at Mount Carmel for decades; some had been born and raised there. Some had left home, as children do, and some had returned. Some were white; some were black. Wayne Martin, one of the first black graduates of Harvard law school, lived at Mount Carmel. A family of six had moved from England to Waco to learn about the seven seals. There were grandmothers and grandfathers at Mount Carmel. As a “branch” of Seventh Day Adventists (“advent” meaning the second coming of Christ), the Davidians didn’t feed their children junk food or sit around the tv. When lots of people live together, they need a big kitchen; they have to do laundry. The Davidians recycled material from old 1950s cottages on the site and built a large home. They added a small gymnasium which did additional duty as a church and a rehearsal space. On February 28, approximately 130 Davidians lived at Mount Carmel. When the B.A.T.F. attacked, Wayne Martin called 9-1-1.

Vernon Howell, also known as David Koresh, was the spiritual leader of the Davidians. The B.A.T.F. could have detained him on one of his trips into town, but they didn’t. For that matter, a Davidian neighbor who seemed to have an interest in Davidian beliefs was, in fact, an undercover B.A.T.F. agent named Robert Rodriguez. He was at Mount Carmel on February 28, and he left shortly before the raid in an effort to stop it.

Four agents and two Davidians were killed outright in the raid. Another died of his wounds; another was later killed in a field some distance from the home. The Davidians were charged with the murder of federal agents. The F.B.I. took over the investigation and the crime scene. Some Davidians surrendered to authorities, or surrendered their children to safe care. Others did not.

On April 19, 1993, fire consumed Mount Carmel. Nine Davidians escaped the flames. Seventy-six others, including a score of children, did not.



Eleven Davidians were subsequently tried and acquitted of murder and conspiracy to commit murder. If you don’t recall the blaring headlines — “Davidians not guilty!” — that could be because there were no such headlines. The acquittals seemingly didn’t merit much coverage.

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Hide-and-Seek History

Secretary of State Colin Powell went before the United Nations in February 2003 to make the case for an invasion of Iraq. He advanced a number of claims, including statements about Iraq’s nuclear threat, which turned out to be untrue. In September 2005, he expressed regret over the episode, saying that it had damaged his reputation. Though he accepted responsibility for his presentation, he blamed his mistakes on lower-level intelligence personnel.

Now, Powell reportedly contends that he and State Department experts never believed Iraq was a nuclear threat.

On the day of Powell’s U.N. address, a British Defense Intelligence Staff document undermining his account of Iraq and al Qaeda was leaked to the press, reportedly as retaliation from a group within British intelligence who were angered by the selective use of information to support pre-determined decisions. Later, the “Downing Street Memos” emerged, confirming an agreement between England and the U.S. to “fix” intelligence around the decision to attack Iraq.

Why was contradictory information coming out of England? I thought Britain was, if not America’s ally, certainly Bush’s ally. Is there a faction of British intelligence opposed to Prime Minister Tony Blair’s policies? What’s going on?

In this short essay, and in subsequent installments, I hope to convey a sense of what’s going on — the myriad ways in which modern intelligence agencies may function. My focus will be on the C.I.A. because a great deal is known about past Agency operations. But the C.I.A. isn’t the only U.S. agency with covert capabilities. Furthermore, there are other countries in the world — England, for instance — with clandestine agencies.


A surprisingly relevant example comes from Ronald Reagan’s presidency, when the C.I.A. provided him with inflated estimates of Soviet military spending to justify Reagan’s military budgets.

When the estimates finally came into question, the Agency reviewed the process by which such estimates are generated. A string of former Directors, including George Herbert Walker Bush, Sr., provided information and somewhat disturbing conclusions. The C.I.A., they said, is so secretive and compartmented that it is not possible for a Director to know everything the Agency is doing.

Obviously, that assessment could be viewed as self-serving because it smacks of plausible deniability: All of them could claim that they never wittingly passed false information to the President.

On the other hand, the assessment is plainly true, which leads to an unpleasant thought. It is an admission that, to an uncertain degree, intelligence is out of control. Or to put it another way, control doesn’t reside where one might think.

It is commonly assumed that the C.I.A. works for the President. The interaction, however, is vastly more complicated than that. At the risk of over-generalizing, it is more accurate to say that the intelligence community works for shifting alliances within the ruling elite. If a President enjoys the support of a significant faction of the elite, then the C.I.A. will generally work for him. If a President is opposed by the powers that be, the C.I.A. will oppose him, too.

Within those parameters, there is a broad range of possibilities. Consider a recent controversy, George Bush, Jr.’s apparent declassification of portions of a national intelligence estimate (N.I.E.) to rebut critics of the invasion of Iraq. Supposedly, Bush did not authorize the information to be leaked to reporters, though it is difficult to see how he expected to influence public opinion if the public could not learn about the estimate. In any case, the debate over his power to selectively declassify material overshadowed a much larger issue. The leaked information was inaccurate, and intentionally so, to justify the planned invasion. Several key administration claims — the Niger uranium story, the aluminum tubes story, the mobile laboratories story and more — were known to be suspect before Powell’s U.N. address and before Bush’s 2003 State of the Union Address. And of course, the related exposure of C.I.A. operative Valerie Plame is still under investigation.


The federal intelligence apparatus is not a monolithic entity. A number of agencies generate intelligence, and loyalties can be split in many ways. The entire “weapons of mass destruction” story looks very much like an example of agencies in conflict, and the bad guys won. The administration demanded falsified evidence. C.I.A. Director George Tenet assured Bush that the case against Iraq was a slam-dunk while Agency analysts were reaching the opposite conclusion. Once it became clear to the public that there were no weapons of mass destruction in Iraq, what happened? The administration blamed the C.I.A. for faulty intelligence; and Bush gave Tenet a medal!

The U.S. intelligence apparatus went through similar gyrations over the Tonkin Gulf incidents in 1964, when Vietnamese P.T. boats supposedly attacked a U.S. ship on the high seas. The cover-up of that hoax continues to this day, as evidenced by last year’s disclosure of a National Security Agency report on the Gulf of Tonkin intelligence.*

And in the mid-1990s, the U.S. declassified material on Pearl Harbor that proved beyond doubt the “surprise attack” was no surprise.**


In the examples related above, prevailing intelligence coalitions supported executive agendas; but that hasn’t always been the case. Sometimes, in service to narrow interests, elements of the intelligence community have attacked sitting Presidents. And sometimes, Presidents have used intelligence coalitions to manipulate the people.

Our government is composed of three branches regulated by various checks and balances because our founders understood that every one of us lives every day with an internal system of checks and balances which cannot be relied upon to produce right behavior.

Since our revolution, and particularly since World War II, intelligence entities have grown so numerous and capable that they constitute a fourth branch of government. We live in a grey world of half-heroes and half-villains, a world of deniable decisions based on debatable information from anonymous sources. Time after time after time, hidden forces dramatically affect events in ways the public never learns — or learns only when it was much too late. We can’t “vote the bastards out” thirty years after the fact. And most of them aren’t elected officials anyway.

President Dwight D. Eisenhower wrote about the growing centralization of government functions and the risk of drastic change in the political processes of the country. It was not an idle concern. The need for an informed citizenry, able to balance trust and skepticism, has never been greater — because today, as ordinary citizens, we simply cannot know who the intelligence community is serving at any given moment.

Overestimating the power of secrecy is an error, but underestimating it is a danger. Secrecy may be required from time to time, but it always presents a threat to democracy. It defeats citizen participation by turning us into spectators at a shadow play.



* “Operation Plan 34-A,” The Chair-Herding Pictures, 12/8/2005
** “A Small Price to Pay,” The Chair-Herding Pictures, 8/29/2005
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At Our Mercy

Marine General Anthony Zinni served the U.S. for thirty-five years. After retiring, he co-authored a book with Tom Clancy titled Battle Ready (2004) about the invasion of Iraq. Commenting on preparations for the attack and the invasion’s subsequent conduct, he wrote that:

I saw at a minimum true dereliction, negligence, and irresponsibility — at worst, lying, incompetence and corruption.

It was said we couldn’t wait for a smoking gun in the form of a mushroom cloud. The administration ignored a decade of planning and dismissed troop level estimates out of hand. Reconstruction was a get-rich-quick scheme for contractors; most of the money just disappeared. The Iraqi army was disbanded, creating a power void at the federal level even as we claimed to be supporting a new Iraqi government.

On Meet the Press last week, Zinni described an administration mired in efforts to re-write history:

We just heard the Secretary of State [Condoleezza Rice] say these were tactical mistakes. These were not tactical mistakes; these were strategic mistakes, mistakes of policy made back here. Don’t blame the troops. They’re the ones that perform the tactics on the ground. They’ve been magnificent. If anything saves us, it will be them.

Pre-invasion claims about Iraq were ridiculous. Iraq had no weapons of mass destruction and no military capabilities. Hussein’s army:

…had caved in. It was nothing like the Gulf War; it was a shell of its former self. We knew we could go through it quickly. We had stripped away his air defenses. He was at our mercy.


All of the Iraqi people were at our mercy. They still are.
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At Canaan's Edge

A friend of mine recently gave me a book to read — At Canaan’s Edge: America in the King Years 1965-68, by Taylor Branch (2006). It’s a big book, the third volume of a trilogy described in the jacket notes as a “masterpiece of storytelling on American race, violence, and democracy.” That may be true.

Branch won a Pulitzer Prize for his second work in the series, Parting the Waters. The New York Times Book Review noted that At Canaan’s Edge contained “[c]ompelling portraits placed in the excitement of a period when oppressed and powerless people moving together changed themselves and their country profoundly and permanently.”* The Washington Post Book World called it “remarkable, meticulous…with the most complex and unsentimental version of King and his times yet produced.”

King’s strengths made him a towering figure in our history, the more so because his weaknesses remind us that he was a human being. A hagiography of the man would merely distort his achievements. But a hagiography of his killers is worse.

I skipped to the Epilogue to see how the story ended. And there I found the official myth, beautifully encapsulated, just as if it was true. More than a decade after Loyd Jowers’s confession, seven years after his trial, after Coretta King asked President Clinton for a Truth Commission and was rebuffed (See "Coretta," The Chair-Herding Pictures, 2/5/2006), Taylor Branch has learned nothing. The King family declared the lone assassin innocent. Branch dismissed that conclusion as the product of “fantastic theories grounded in dogma…” Who needs facts when the “fantastic theories” smear will do?

Realizing that most people are unfamiliar with the many questions surrounding King’s murder, I will not attempt to detail them here. I assume that Branch operated in good faith and that his errors concerning the killing of Dr. King arose from ignorance rather than deceit. However inadvertently, Taylor Branch wrote an elegant summary — indeed, a defense — of a lie. I hope the rest of the book is better.




* The scope of that change is somewhat in doubt following black disenfranchisement in Florida and Ohio in 2000 and 2004, not to mention the Katrina swindle. When Iraq held elections, poling facilities were set up in the United States to help Iraqis here vote. But the government will not establish poling arrangments for displaced New Orleanians to vote in the coming primary and general elections.
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Democracy, Debt, and Signing Statements

• “Starve the beast.” That’s the expression created by hyper-right-winger Grover Norquist for the strategy to eliminate federal programs opposed by the far right. “I don’t want to abolish government,” he told Mara Liasson on National Public Radio. “I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.”

The right talks about smaller government as if that is automatically a good thing. Is it? If a tsunami devastates the east coast in 2008, do we want the federal government to sit on its hands because small government is best? I certainly hope a bird flu pandemic never materializes. But if it does, do we want the National Centers for Disease Control to watch from the sidelines because they don’t have enough money? Suppose taxes are cut repeatedly in the course of an indefinite war. Might the citizens eventually be compelled to choose between Social Security and national security?

Governments, according to the Declaration of Independence, derive their just powers from the consent of the governed. Thomas Jefferson, the author of that quaint formulation, also believed that the national debt undermines sovereignty because debt limits options. Debt forces upon future generations obligations to which they did not and could not consent. That is precisely why the anti-American right is driving the country deeper and deeper into debt. They want to “starve the beast” by establishing national peonage.


• When a President signs a bill into law, he may also issue a signing statement presenting his interpretation of the law and its enforcement. Such statements, once relatively rare, have been issued with increasing frequency in the past three decades, and particularly in the past five years. Since taking office, George Bush, Jr. has turned signing statements into a showdown on Constitutional powers. Ostensibly on constitutional grounds, with little fanfare and less press coverage, Bush has dismissed some 600 provisions of laws that he signed into effect.

He hasn’t vetoed anything. But in statement after statement, he has offered the opinion that as President, he simply is not bound by this clause or that provision. He signed the McCain anti-torture bill along with a statement exempting elements of the executive branch at his discretion. He renewed the so-called Patriot Act with a statement that the executive branch was not bound by the Act’s reporting requirements. He contends that if a law impairs the performance of his duties, he doesn’t feel obliged to obey it.

Presidents, however, don’t have the last say on such matters. In olden times, that was the province of the Supreme Court. In olden times, Congress ratified treaties, declared war, and made laws “necessary and proper” for the execution of presidential powers.

Step back for a moment and imagine some other President — an evil, non-Bush President in the future. Do you believe that evil President should be able to pick and choose the laws he will enforce and obey? Does that sound like democracy to you? Do you think that’s what our founders had in mind?

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