Why We Should Be Concerned If Fear Of a Military Coup Shielded Bush and Cheney From Prosecutions For War Crimes

This post was written by guest author, Ewen Allison
There are reports on firedoglake.com and warisacrime.org  that in days leading up to Barack Obama’s inauguration, his top advisors warned against investigating and prosecuting individuals responsible for the Bush Administration’s torture and rendition polices.  One of those advisors, Christopher Edley, relates that the team felt the “CIA, [National Security Agency], and military would revolt” if the Obama Administration pursued criminal cases relating to torture.  Susan Harman, who broke the story to David Swanson and others, reports confirming that there was a possibility of physical harm to the new president if his administration went forward.
 
This made my heart sink.  We Americans pride ourselves on our principles and here we have an especially important principle taking a hit.  That principle is one we learn in high school if not earlier:  the Founding Generation deliberately made the military subordinate to the civilian part of government.  The Founders felt this was one of the many things that the Noble Experiment of self-governance needed if it was to succeed.  That’s why the President is Commander-in-Chief.  That’s why they were leery about a standing army.  That’s why Congress can’t fund the military more than two years in advance.
 
I take both comfort and pride in it this fact:  the American military ethos bows to civilian authority.  I’ve had enough contact with military types to believe that this sentiment is sincere and intense.   This is a good thing. 
 
So what are we to think when our leaders fear “revolt” from subordinates with enough raw power to launch a coup and impose military rule nationwide?  Or undertake that and something worse besides, like a pogrom against loyal Americans daring to remember who is supposed to be in charge?
 
We can hope that the revolt Obama’s advisers feared was a figurative one.  After all, objurate rank and file give their bosses grief anywhere an office has bosses and rank and file.  Maybe the new team anticipated a bureaucratic fight and didn’t want to deal with it.  The career civil service can’t be rankled too much if the government is to run smoothly. 
 
Then there’s something we learn from psychologists, that strange things happen among members of groups.  Sometimes a powerful personality makes an assertion that the less powerful remain silent about for the sake of not making waves or such.  Then the silence is taken as deference and things go along on that basis.  Did that happen in the discussions Edley participated in? 
 
Perhaps all the participants felt the chance of something actually happening was remote, but decided to play it safe anyway.  And once that was decided, it didn’t need much more attention.  It’s not uncommon for decisions not to be revisited.  This would fit with the description Chris Edley gave Andrew Kreig, that that the whole point was given little more than a once-over in discussions. 
 
For that matter, the people who really had to weigh the ins and outs were at the higher levels of the post-inauguration White House and Justice Department.  Their opinion would necessarily count more than Edley’s.   Holder decided not to get serious about prosecutions, but it’s just as possible he preferred the political heat from the left for going soft over the political heat from the right for prosecuting torturers and those who aided and abetted them.  That makes him a moral coward in the face of politicos, not a coward in the face of assassins.
 
And what if the transition team simply projecting their own prejudices, their own vague, empirically unsubstantiated fears onto the careerists?   
Perhaps we can hope that Susan Swanson’s “friends” at the CIA were blowing smoke or yanking her chain or some such.  Even more skeptical observers would wonder whether Ms. Swanson correctly interpreted what she was told.  For that matter, if CIA officers anticipated harming the President, was there actual communication of that to the transition team?
 
With any kind of luck, it is unwarranted to believe that a coup would have happened if Obama had gone after our nation’s torturers and the people who empowered them. 
 
So here I am, seeing plenty of reasons to believe that fear is unwarranted, even leaning that way. 
 
At the same time, knowing as little as I do, I have to hedge my bets.   Maybe my heart should indeed have sunk when I heard of Ms. Swanson’s report.  I felt echoes of a spell of existential dread I had back in college.  Sometime back in the day, it occurred to me that on one level, the Constitution and laws are just words.  If enough people simply decided not to do what they should, order would disintegrate.  History has too many terrifying examples of what happens then:  chaos or tyranny, often both, and not necessarily in that order. 
 
Eventually, of course, I realized just how big an “if” that is, so big as to be implausible if not impossible.  American culture includes strong respect for the Constitution, more than enough to follow the Constitution in general and in particular, the principle of civilian control over the military.  Acting in accord with our Constitution and laws is one of the folk ways of this country, one of those things we do because it’s the thing to do.  We won’t degenerate any time soon.
 
Much later, I learned of a good example that it’s not enough to have a good constitution.  In the 19th century, Argentina modeled their constitution after ours.  Proponents had an almost talismanic faith that a good constitution was all they needed to ensure a peaceful and prosperous nation where individuals enjoy all the blessings of liberty.  That constitution didn’t have the hoped-for effect and didn’t last.  The reasons are as numerous and complicated as good students of politics would expect.  But there is one, uncomplicated reason among them:  the constitution-respecting elements of Argentina’s political culture did not permeate the minds of enough leaders.  The rest is history.
 
So I hear of Edley’s fear of the CIA, NSA, and the military staging a “revolt.”   I remember the dread I had in college.  I remember a real-life example of constitutional order disintegrating.   I remember that the domestic tranquility we cherish depends on a culture of respect for the Constitution in general and civilian control of the military in particular.   It is only mildly metaphorical to say that that part of our culture is a wall against chaos and tyranny. 
 
I don’t know whether my new concern is as speculative as the one I had in college or as real as any drawing strength from the Argentina example and others like it.  But assuming the worst from Ms. Swanson’s revelation, there is a crack in that wall.   Maybe what we have to worry about is that that crack will be the kind that grows and spreads, becoming large enough to bring the wall down. 
 
Perhaps the insubordinate elements in our government learn the wrong thing from this episode.  They’ve learned what happens if they raise the specter of a revolt of whatever sort.  They have learned how to save themselves or their associates from criminal prosecution.  More broadly, they have learned how to get what they want.  There’s danger in that direction.
 
There is a way to avert this danger.  I hope that Ms. Swanson’s discovery becomes more widely known, enough so that a backlash from civil society will truly remind the national security apparatus of who and what they serve.  Our constitution contains not only the principle of civilian control but also guarantees of free speech, free press, free assembly, and, notably, the right to petition the government for a redress of grievances.  We don’t know whether we have a valid grievance, that our civilian leaders really did fear for their safety and for good reason.  But let’s claim a grievance in not knowing for sure and see what happens.  The possibility alone of loss of control by our elected leaders and their appointees is worth being concerned about. 
Remember that the cost of freedom is eternal vigilance.
Ewen Allison is an attorney in Washington, D.C.  He is a partner at Capital Area Law Group.
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