Scott Horton Interviews Bruce Fein
Bruce Fein, author of American Empire: Before the Fall, discusses the domestic consequences of foreign empire, the very fast transition from republic to empire in American history, the changing of the presidency from chief executive to permanent war commander, the simple truth that terrorism is a reaction to, not the reason for American interventionism in the Middle East, Faisal Shazad’s explanation of how this works to a federal judge in New York recently, an example of how empire’s bring themselves down, the morality and effectiveness of a peaceful state with an explicit nuclear deterrent, the long, long list of new powers claimed by the president since 9/11 and the secrecy surrounding it all, the war powers of the presidency as the core of our problem, the Washington D.C. imperial court, how to restore the republic and why we have to try.
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Bruce Fein was Associate Deputy Attorney General and General Counsel to the Federal Communications Commission under President Reagan and author of The American Empire: Before the Fall.
Transcript – Scott Horton Interviews Bruce Fein July 19, 2010
Scott Horton: All right y’all, welcome back to the show. It’s Antiwar Radio. I’m Scott Horton, and our next guest is Bruce Fein. He was the Associate Deputy Attorney General and General Counsel to the Federal Communications Commission under Ronald Reagan, and he is the author of the book American Empire: Before the Fall. Welcome to the show, Bruce. How are you?
Fein: I’m doing well. Thank you for inviting me, Scott.
Horton: Well, I really appreciate you joining us here. So basically the book is structured around the farewell address of the first President, George Washington; a speech on July 4, 1821, I think it was, by John Quincy Adams; and of course the Declaration of Independence and the Constitution. And you take these as a mandate from the founders of the American federal government – the general government, as they called it back then – to stay out of the world’s affairs.
Fein: I think that’s a fair approximation. I call these the charter documents. The philosophy is the United States of America is about protecting and securing the blessings of liberty for Americans, that the influence of America abroad was by the force of example – period. No entangling alliances. We build defenses, defenses, defenses for United States citizens alone. If people want to volunteer to do Good Samaritan work abroad, that’s up to them. But the government of the United States has no right or authority to coerce an American to spend a dollar to fight for the liberty of somebody who doesn’t owe their loyalty to the United States.
And the reason why – although it seems to some as callous – the Founding Fathers undertook this particular posture was because when you go abroad in search of monsters to destroy – as John Quincy Adams, then Secretary of State put it –you destroy the Republic. All power concentrates in the president. All due process is shattered. The money, the taxes, the contracts, the appointments, the desire for fame and remembrance – all pushes the President to inflate fear, to concoct excuses for war, and to destroy individual liberty at home in the name of having some particular obelisk built.
The Founding Fathers knew the executive branch was vulnerable to that temptation because that was their entire experience in observing the history of Europe prior to the Revolutionary War. It was the European monarchs that would fight for trivial causes. The Founding Fathers said, “No! We must stay away from these entanglements because it will destroy our republic.”
Horton: Well now, I guess it could be argued – I think I would argue – that the American state has really been at war since they created its power to raise armies and put taxes on people, and they hardly ever stopped. I mean, a lot of times we act like the Age of Empire began maybe when they stole Hawaii or something like that, but I think Noam Chomsky on this show called that the “saltwater fallacy,” and they waged war to seize this continent.
Fein: I think that that is an incomplete examination. I do think it’s fair to say that up until the Mexican-American War, the United States did expand – like the Louisiana Purchase that bought the land from Napoleon, from the French – and there certainly were clashes with Indians, but the major issue that destroyed the Republic is the legal architecture of war.
When you formally declare war, that’s the silence of the rule of law and the subordination of individual liberty. Up until the Mexican-American War – we did fight the War of 1812 over impressment and neutrality; the British had attacked, and they ultimately burned Washington on that occasion; but that was a war declared by the Congress of the United States. But until the Mexican-American War, I do not believe that we were using the legal architecture of war to justify the destruction of checks and balances and the securing of the unalienable right to life, liberty, and [the] pursuit of happiness, which is the goal of all government.
It was the Mexican-American War and this rather ridiculous idea of “manifest destiny” and a crusading spirit of bringing to all of the world United States’ values and free enterprise that launched us on the trajectory towards empire that now has reached its zenith, post-911, where we now have a military force in Afghanistan and Pakistan, which, if that ratio to the enemy was used in World War II, we would have had 3.4 billion Americans fighting Germany and Japan – which means multiplying the population by twenty-five and conscripting every one of them.
And I do believe that it was because the successors to the founding generation after Quincy Adams forgot the lessons, the creed of the founding Republic, that led them into this enterprise of domination for the sake of domination. That’s what we’ve got to get away from.
Our pride has to be in securing freedom for Americans, making us a more perfect union, and hoping the rest of the world, by emulation, may wish to copy us – but if not, that’s up to the rest of the world. We still have a union that treasures liberty – the individual as the center of the universe, not the government.
Horton: Well, and it’s fair enough that you focus on the consequences for the American people because, one, the American people don’t seem in majority, or in large measure anyway, to care about the lives of foreigners at all, so never mind the Indians or the Iraqis or the Pakistanis and what it’s like for them.
But you’re confronting one of the foundational myths of our entire civic religion in this society, which is that you and I couldn’t even be having this conversation if it wasn’t for the Army killing Iraqis, and that, you know, it’s good for the economy, etc. – that all this empire is for us, that we benefit from it, it’s why we have the Bill of Rights – it’s not the biggest threat to the Bill of Rights. That’s what the people are told to believe on TV all day.
Fein: Yeah. Well, and of course the fact is [that] empires ultimately end up in self-destruction because the arrogance and the duplicity of their motivations cause resentment and what you might call “blowback,” which is exactly what, largely, Osama bin Laden/al Qaeda is about.
It’s very striking, Scott, that if you examine the reported colloquy that was had in a New York Federal District Court up in the Southern District of New York recently between Faisal Shahzad – he was the individual who pled guilty to having the car with a bomb in New York Times Square – and the attempted conspiracy, if you will, to kill Americans – and he was asked by the judge when he pled guilty, “Well, why did you do this?” He said, “Well, we are at war with Islam; that’s what the Afghanistan and Pakistan wars are about.” And she said, “Well, but why are you killing women and children if it’s a war?” And he says, “Well, your drones don’t make any distinction when they come crashing into Afghanistan and Pakistan between women and children – they kill anybody. So why are we to play by Queensberry rules where you engage in atrocities?” And she didn’t have an answer for that.
And this was an individual – Faisal – who was a U.S. citizen. He didn’t say, “I hate American liberty.” He didn’t say that he despised the fact that women didn’t have headscarves on or burqas that caused him to do what he did. It was retaliation for exactly what we’re doing abroad.
This is the stupidity – we are creating a hundred new enemies for every drone that kills one militant, if we even know how to define a militant. This is quite stupid, but that’s the stupidity of empire – ultimately to destruction, like Rome, the Ottomans, the British, etc.
Horton: In fact I just interviewed a writer, a journalist named Stephan Salisbury, about some of these entrapment cases, these bogus terrorism cases since September 11th. And he talks about how the informants always use Israeli policy, American policy in the Middle East as their talking points to try to provoke these people into saying something stupid into an open microphone so that they can be prosecuted. And they don’t ever say, “Don’t you hate it that women can wear skirts to a primary election?” Or something like that. They always say, “Look at what’s going on in the West Bank! How can you not fight back?” That’s what the provocateur says to entrap.
Fein: Yeah, exactly! Because they know that, no, even if these people don’t necessarily embrace the American form of democracy, they don’t wake up each day and think, “Oh, I’m so angry that someone has freedom, that a woman can go to school.” That’s ridiculous! They don’t care about that 5,000 miles away from Afghanistan or Pakistan. It’s a concoction made to dupe the American people into thinking that these are non-human beings and that there will be a caliphate in Washington D.C. unless we’re sending Predator drones into their wedding parties.
Horton: Right, and that is the strength of this book. Again, it’s called American Empire: Before the Fall. And it seems like we are really pretty much at least at the top of the decline here. It seems like the apex of American power was in the last administration. I think Pat Buchanan wrote that the “high tide” was Fallujah, when they turned us back, basically. It was a giant massacre for nothing.
All right, so hang on the phone, Bruce. It’s Antiwar Radio. The music’s playing, we’ll go out to break, and we’ll come back and talk more about this excellent book – I really recommend you all run out and get it – American Empire: Before the Fall. It’s Antiwar Radio.
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Horton: All right, y’all, welcome back to the show. It’s Antiwar Radio. I’m Scott Horton. I’m talking with Bruce Fein. He’s the author of the brand new book, American Empire: Before the Fall.
Now I want to ask you to kind of catalog, as you do so well in the book, the degradation of even the theory of the rule of law as binding the power of anybody in the government at all.
But first I want to pick a fight with you about what you say about how America should be unilaterally at peace – abandon collective security and all that stuff – and we should be unilaterally at peace, but we should threaten nuclear annihilation against anyone who ever attacks us. But it seems to me like, at the very worst, if we respond to somebody that attacks us, it should be proportional, not nuclear annihilation of women and children and other men who had nothing to do with the decisions of their politicians. That’s not any more fair than Iraq or Iran nuking us now for what we did to them.
Fein: Well, obviously you’ve got to – look, the purpose here of the threat is to try to deter war in the first instance. That’s the greatest tragedy.
Horton: Yeah, but then if somebody attacks us, we got to nuke ’em.
Fein: It’s hard to argue. Take, for example, Scott – was Hiroshima and Nagasaki disproportionate to Pearl Harbor and all the deaths that had happened in the interim?
Fein: The main success is deterring war in the first instance. You want to promise, in my view, that someone who is the aggressor – and this is an aggressor state. An attack/war is not an individual who comes in and says, “I hate America” – that doesn’t justify a war response. I’m talking about an attack that’s an existential attack like Pearl Harbor with a country that’s got millions of people in the armed forces – Japan ultimately had over 10 million – a huge industrial base – that you want to prevent this catastrophe that comes in the first instance by saying, “Then you’re going to lose all of your power. Your country will be annihilated.” That’s the goal there.
Now you may disagree with regard to whether it will be effective. I think that’s far more beneficent towards mankind, to prevent war in the first instance, than saying, “Well, if you attack us, even if it’s unprovoked, we’ll only go back, and so you’ll suffer the same amount as we did.” I think that would be more encouraging to warfare, but we can debate that.
But I want to go back, if I can – well, I don’t want to cut you off. You may have a response to mine. It’s not fair for me to just say it without you responding to my observation.
Horton: Well, I mean, I would agree with you that the deterrence of having thousands of hydrogen bombs does work to prevent major-power war. It has worked. But it seems like at the same time we could absolutely annihilate the capital city of any major power that ever attacked us without nukes even. I mean, they’ve got all kinds of conventional weapons that can make life hell for anyone in the world without actually fusing hydrogen atoms together over their cities, you know?
Fein: Yes. Well, okay, let’s move on. I think we both agree that, whatever purposes, our posture ought to be defense and deterring war, not preemptive war.
Horton: Certainly. Now go ahead, go ahead, because time is limited.
Fein: Yeah. This would be just a catechism of all the lacerations of the rule of law. One, when war comes, the president claims – and he is claiming – a unilateral authority to identify Americans abroad who he says are an imminent danger and have them wiped out by assassination squads. We have one member that President Obama has identified as a U.S. citizen in Yemen who’s on the hit list for assassination. It’s a little bit like Vladimir Putin’s killing of one of his opponents, Mr. Litvinenko, in London with polonium-211.
The President then claims authority he can detain any American citizen, or noncitizen, without accusation, without a trial, as a so-called “enemy combatant.” So you just sit there and rot. It goes back to the days, pre-Magna Carta, where King John would throw people in the dungeon without any accusation to let them sit there until they turned into vassals or otherwise.
Then he claims the authority to use these military commissions, which combine judge, jury, and prosecutor in a single branch, for alleged “war crimes,” which include activities such as “conspiring to train in a terrorist training camp” even if you’ve never threatened an American at any time or any place. And military commissions are about as procedurally irregular as the Spanish Inquisition.
Then he claims he has absolute power, in fighting the war against international terrorism, to spy on us without warrant – that he’s gathering military intelligence on the battlefield when he undertakes this collection because with terrorism it can occur anywhere, so the geography of war is not limited, it’s everywhere on the planet. And he can collect “battlefield intelligence” with group warrants, or without warrants whatsoever.
He also claims the authority to act in secrecy. Congress has no ability to even subpoena a member of the executive branch and inquire as to how they’re running war. Which is of course is an enormously menacing proposition. We have government in secrecy instead of transparency. And we know that secrecy breeds abuses.
Let’s just think for a minute, Scott, about these Predator drones slamming into Afghanistan and Pakistan. Neither you, nor me, nor the audience, nor anyone in Congress, has any idea, how do these targets get selected? We read in the newspapers, “12 militants killed, and maybe some civilians.” Well how do we know there were 12 militants that were killed? Where’s the proof that that was accurate information? Where did you get it? Were the informants who you paid $10,000 the ones who you relied upon? Is the accuracy the same as the accuracy for detainees at Guantanamo Bay? Where 5 or 6 out of 7 get released once a court has an opportunity to examine the evidence, even if a bunch of it’s classified?
So this is basically running government in secrecy, which is the opposite of government by the consent of the governed. How can the people consent to government activity if you don’t even know what it is?
And this is truly, perhaps, the most destructive element of our entire constitutional system that has come into play with the so-called “war against international terrorism.” It’s all in secret. And I don’t know whether you read in today’s front page of the Washington Post about our new intelligence leviathan out there.
Horton: Yeah it was about [inaudible] part about how it says they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings – about 17 million square feet of space. It’s the new post-9/11 only – never mind post-World War II – national security state, Bruce.
Fein: Yes, that’s right. And a million people with Top Secret security clearances that don’t even talk to each other. And what has resulted? You know, the recipients, the users, say this is useless. It doesn’t even give us any information that enables us to defeat the enemy, if you will, the terrorists. It’s utter and complete mindlessness, but you can imagine all the information that’s captured about American citizens, you know – to what end? Other than just make government bigger and giving them control over your life.
So that’s another element of the rule of law. And I suppose perhaps the most egregious comes to this issue of how we get into war in the first instance.
The Founding Fathers universally agreed that only Congress could be trusted with deciding whether to initiate war, because the president has such a temptation to concoct danger in order to get into clashes because war gives the President the taxes, the money, the contracts, the appointments, the fame, the jingoism that he thinks will let him profit politically and leave his mark in the footprints of time. And that was the statement of even the most aggressive proponent of the strong executive, Alexander Hamilton – the legislative branch decides on war or peace.
And now we’ve come in the empire phase where, no, the president unilaterally decides whether to go to war, or Congress delegates to the president, like the Iraqi War Resolution, “You decide, Mr. President, whether to go to war.” Same thing happened in the Gulf of Tonkin Resolution. Same thing happened in Korea – President Truman unilaterally decided to call the Korean War a “police action” and said, “We don’t need any authority from Congress to fight this.”
Horton: Well let me ask you now, Bruce, is there any chance I can keep you for another 10-minute segment here?
Fein: Yes, you can.
Horton: Okay, great, hang on the line. Everybody, I’m talking with Bruce Fein. He used to be a lawyer in the Ronald Reagan administration, wrote the articles of impeachment of Bill Clinton, and wrote the book, American Empire: Before the Fall. We’ll be right back.
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Horton: All right, y’all, welcome back to the show. It’s Antiwar Radio. I’m Scott Horton, and I’m talking with Bruce Fein. He’s the author of American Empire: Before the Fall. And you know, for those of you who have somebody that you’re trying to get the anti-empire point across to, this might be the one. In fact, I’m pretty sure this book will go down in history as part of the story of “Some Americans tried to fight this.”
But anyway, let me share a little bit of the table of contents with you guys:
One: Empire Without a Cause.
Two: How Far the Republic Has Fallen – From Lexington and Concord to the Korangal Valley.
Three: The Nation’s Charter Documents.
Four: America’s Descent into Empire: From the Mexican-American War to World War II.
Five: Twin Myths of the American Empire.
Six: Crucifying the Rule of Law on a National Security Cross.
And I’m going to skip ahead here to Chapter Nine: Restoring the American Republic. Bruce, how do you propose to do that?
Fein: Well, in some sense the ultimate solution, if you will, lies in the American people. We The People are still sovereign. It’s the first three words of the Constitution of the United States.
We have to insist, by our votes and by our opinions, that we withdraw all of our troops from abroad. Our military posture should be a thoroughly defensive one. We can spy and gather intelligence for defensive purposes, but we shouldn’t have a single soldier on any foreign soil.
We’ve got to renounce this idea that the President is there to make us safe. No, he’s there to give us freedom, along with Congress.
We have to restore checks and balances. We have to make certain that a member of Congress is not elected who will not impeach a president for unilaterally initiating war, who would not impeach a president if he withholds information and testimony from Congress, who will insist that we have a government that places the individual at the center of the universe, that protects privacy, that views the thrill of stealth government and transparency as the earmark of the United States, that differentiates us from citizens who are vassals and serfs of a leviathan at the federal level.
And that’s going to mean civic education. It’s going to mean a promotion of the idea that it is not great to dominate for the sake of domination. That is not the earmark of the destiny of the United States and of the Republic.
It’s America for Americans, not because we’re callous but because we recognize that by going abroad in search of monsters to destroy, we would destroy the Republic for ourselves. And the American people need to embrace this. We have to reject as a people the idea that absolute safety is what we crave more than anything else. We have to recognize that you have to take some limited degree of risk, because everybody is capable of evil – that is, no one can go and swear on Korans or Bibles or whatever that it’s impossible for them to do wrong.
That doesn’t mean we stick everybody in prison but that freedom and liberty thrive when there’s some measurable prudent risk out there that you can have a Timothy McVeigh. And that has got to be the creed of the United States of America.
Right now, Scott, all of the language, the grammar is, “Safe, safe, safe, safe.” It doesn’t matter how much you destroy the whole purpose of the enterprise, of freedoms. Just tell me it’s gonna make me safe, even if it doesn’t. Body scanners, whatever.
And one of the ironies of the gathering of the more information that was disclosed to be useless in the Washington Post today – you know, what is the government saying? “Give us even more analysts.” You know? And this makes the problem even worse, by creating even more useless information. That’s the kind of bureaucratic big government mentality that has to be repudiated.
But in the long run it’s got to be a change in the political culture. And that was what was so vibrant and thrilling about the founding generation. The American people understood and craved liberty over domination for the sake of domination.
When the Latin Americans and South American colonials erupted against Portugal and Spain, the American people didn’t say, “We have to go over there and run interference and engage in warfare.” No, we wished them well, but otherwise we remained Americans. America has to come first.
Otherwise I think the changes – the things that can be done incrementally by changing the laws – will not have the sustaining power to return to the Republic.
Just think, for instance, we have laws, Scott, against torture which includes waterboarding, which the president himself has said is torture. They don’t go enforced because we lack the political will to say, “Hey, this is the rule of law. If you want to pardon somebody and take accountability for committing torture, go ahead. But the president doesn’t have the authority to just ignore enforcing the law because he thinks it’s politically inconvenient.”
Horton: Well, yeah, and they’d have to repeal the Eighth Amendment to legalize torture, anyway, right?
Fein: They would have to do that, yeah. Or I suppose Congress could try to at least eliminate maybe criminal penalties, which they haven’t tried to do.
But that’s what the culture is about here in terms of restoring the Republic to what it was envisioned by the founding generation. We can’t just blame the individual leaders. We can complain about it, but it’s up to us to throw them out of office, to give them a stigma. This is simply not acceptable. Wedo not want the United States dropping Predator drones on wedding parties because there’s a one trillionth percent chance that someone might be a baby Osama bin Laden growing up in Kabul in the next 50 years coming as an individual and try to commit a terrorist attack.
No! We’re more than that. We care more about our freedom. We care more about transparency in government. Even if it does [mean] taking some risks than it does domination for the sake of domination. The latter is the earmark of tyranny. It’s the earmark of the lion and the tiger in the jungle, just wanting to try to beat and brutalize and dominate for the thrill that’s rather visceral, a feeling that you’re the first guy on the block.
Horton: Well you know I think a lot of people would, you know, if you were one of the guys they talk to on TV all the time about these things, I think you could win people over to your position. In terms of what the people really want, I mean they’re mostly unconcerned with foreign policy anyway, but if you could truly offer them peace, I think they’d take it.
But what about the imperial court? You know, William S. Lind said on this show that you shouldn’t even call it Washington D.C.; it is simply an imperial court. And there are bazillions of uncounted, printed dollars flowing to specific extremely rich and powerful private interests that control the empire. And how are Americans supposed to believe that they can do anything about that? That’s why most people don’t care and don’t pay attention to these kinds of issues – it’s because they feel powerless. Why would they sit around and read Antiwar.com all day if all they’re going to do is shrug and pout and it does them no good?
Fein: Well, Scott, it’s certainly true that it’s an uphill battle. But the process of struggle itself is its own reward.
Just think about the initial effort in the United States to abolish slavery. William Lloyd Garrison, born in the place that I grew-up in – Boston, Massachusetts – he formed The Liberator magazine in 1831. He was tarred and feathered, driven out. He said people told him just what you told me – “Oh, slavery. There are too many monied interests involved here. It’s profitable. The North lends money to the South. The South gets the tobacco. They grow agricultural products at cut-rate prices with slavery. It’s hopeless.”
Lloyd Garrison, he came back despite being tarred and feathered. He was there when the Thirteenth Amendment was ratified – abolished slavery in 1865 – then he shut down The Liberator magazine.
It’s true. Oftentimes it seems hopeless. But the quest itself, to do what is right, to pay rewards to the Founding Fathers, who had the right philosophy, has to be its own reward. You do it anyway even if it seems hopeless, like Lloyd Garrison did, because everything else would be ignoble. That’s why we fought at Valley Forge. It didn’t seem we were going to have a victory around the corner, but we persisted and ultimately prevailed.
But in some sense, Scott, even if we fail, it was worth it. Our legacy is our immortality in terms of the philosophy that will be there in future generations and maybe be taken up in more propitious times to carry the beacon of freedom and liberty, the way the Founding Fathers understood it to be there. That’s why we can never despair. We can never yield simply because it looks hopeless. We always fight and be uncompromised in our principles in knowing why we’re here between ashes to ashes and dust to dust.
Horton: Wow. So that’s Bruce Fein. He worked for Ronald Reagan in the Justice Department back in the ’80s. He wrote up the articles of impeachment against the felon, William Jefferson Clinton, in the 1990s, and now he’s the author of the book American Empire: Before the Fall. And this is some really good stuff, y’all. I highly suggest you go out and read it. And I want to thank you very much for your time on the show today, Bruce.
Fein: I’m really thankful, Scott, and I appreciate your audience being so patient. Thanks again.