One Cheer for Gen. Petraeus
By David P. Goldman
The Obama administration is still deciding whether to bring felony charges against former CIA Director Gen. David Petraeus, according to Attorney General Eric Holder. As a senior DOJ official in the Clinton administration, Holder arranged a presidential pardon for fugitive tax cheat Marc Rich. As attorney general, he ignored the unconscionable use of the IRS against conservative-leaning organizations seeking tax-exempt status.
This is a political prosecution. Petraeus’ supposed crime, leaking classified information to a girlfriend, is the sort of victimless infraction that never has been brought to the point of criminal prosecution at any time in the past. Petraeus’ offense, rather, is political: He is credited with the 2006-2007 surge that in Republican mythology won the Iraq War before President Obama snatched defeat from the jaws of victory. One risks being run out of the Republican Party on a rail for questioning this mythology, but someone has to say that the emperor has no clothes.
Petraeus improved the optics of the Iraq mess at the end of the second Bush administration, to be sure, but he also helped set in motion the catastrophe that has now engulfed the Levant.
The story already has been told in depth by Lt.-Gen. (ret.) Daniel Bolger, whose memoir Why We Lost appeared last year. I reviewed it in Asia Times Online after observing that not one of the mainstream media reviews mentioned the most important assertions in Gen. Bolger’s excellent book: First, that American success in imposing majority rule on Iraq in 2006 set in motion the Sunni insurgency, and second, that America’s sponsorship of the Sunnis in 2007-2008 (the “Sunni Awakening” built with American funds as part of the “surge”) made the insurgency intractable.
Below is an extract from my Nov. 21, 2014 review:
Proof that America has set out to destabilize the Persian Gulf region, a well-regarded Chinese specialist argued recently before a Beijing foreign-policy seminar, is that the Islamic State is led by Sunni officers armed and funded by General David Petraeus, the US commander during the 2007-2008 “surge”. The observation is correct, to be sure: ISIS shows impressive leadership capacity and mastery of large-unit tactics involving sophisticated equipment, and it learned much of this from the Americans. But the Americans acted out of short-term political expediency rather than medium-term malevolence.
America did not have to choose the wrong mission, Bolger argues:
Bush’s war began narrowly, knocking out al-Qaeda and its Taliban backers in Afghanistan. Within weeks of 9/11, the basic goals were fulfilled, not perfectly, not completely, but probably close enough. Had we stopped there and reverted to the long, slow Clinton-era squeeze of terror cells and Islamist supporters , it might have done the job. … Again, as after the fall of Kabul, the swift seizure of Baghdad offered another opportunity to close out the conventional military phase and go back to the slow, steady, daily pressures of global containment of Islamist threats. That moment passed. Instead … with minimal domestic debate – and, notably, no known military objection – the administration backed into two lengthy, indecisive counterinsurgency campaigns.Careful what you wish for: by 2006, the US had sponsored national elections in Iraq and brought to power the Shi’ite leader Nouri al-Maliki, who promptly purged Iraqi’s security forces of Sunnis. Fearful of Shi’ite vengeance, Iraq’s Sunnis revolted and Iraq dissolved into violence. In response, junior officers operating in Sunni-dominated Anbar province devised the stratagem that lay at the heart of the “surge”. The commitment of 20,000 additional combat troops helped suppress the Sunni insurgency, but paying the Sunnis not to fight for the time being was more effective. As Bolger reports,
The Anbar tribes had always helped AQI [al-Qaeda in Iraq]. … When individual tribal sheikhs objected, the elders lost their heads. Families were attacked. Houses were demolished and cars burned. The AQI men began to impose Wahhabi discipline – no gambling on horses, no drinking alcohol, and no smoking. The AQI leaders had crossed the line at last. The Persian-influenced sheruggis in Baghdad were far away from Anbar Province. The Americans were right there, and they had little interest in what sheikhs did with their tribes. Forced to choose between the AQI boot on their necks and the US military, [tribal leaders] decided to try the Americans.That did the trick. Petraeus, lobbying for the Iraq command from his post at the staff college in Leavenworth, Kansas, took careful note of the junior officers’ proposals. Bolger has no patience for Petraeus’ politicking. “Junior soldiers wondered about his real motivations. Service or self? With Petraeus, you never knew for sure, but you often suspected the latter, and it meant trouble.”
With the whole of the senior Army staff opposing the surge, president Bush looked for an officer who would improve the optics in Iraq, and Petraeus was his man. Bolger adds:
“Combined with the troop surge in Baghdad, the Sunni Awakening effectively ended the sectarian bloodshed by the summer of 2007. It split the Sunni resistance, and they stayed fragmented during the remainder of the U.S. campaign. It was not a victory, not by any of the criteria the optimistic Americans set for themselves back in 2003, seemingly in another lifetime. But it was something like progress.
“… The Sunni Awakening expanded rapidly … Ever conscious of marketing, [Iraq commander Gen David] Petraeus and his inner circle settled on a more inspirational name. With the approval of Prime Minister Nouri al-Maliki, the Sunni became the Sons of Iraq.
“Although the troop surge made the news in America, in country, the Sunni Awakening delivered the real and lasting difference in the rate of attrition. … The Sons of Iraq proved overwhelmingly loyal. Nearly a hundred thousand strong, half of that number in and near Baghdad, the Sahwa movement allowed the Sunni to carry weapons lawfully and get paid, effectively removing much of the incentive for the “honorable resistance.” It was by far the most successful and widespread jobs program in Iraq … The Sahwa, however, paid tens of thousands of Sunni Arabs to kill each other, not Americans. Cynical it might seem, but you couldn’t argue with the results. The Sons of Iraq fielded some six times as many Sunni with firearms as the highest estimate of enemy strength. It showed the potential depth and resiliency of the Sunni insurgency.”One might put the matter even more forcefully: by funding and training the “Sons of Iraq”, Petraeus and his team assembled the elements of the new Sunni insurgency now using the name of Islamic State (also known as Islamic State of Iraq and Syria). Andrew McGully’s 2007 report in Agence France-Pressedescribes the first meeting of Sunni tribes near Baghdad with Petraeus and his team.
“Tell me how I can help you,” asks Major-General Rick Lynch, commander of US-led forces in central Iraq … One [tribal leader] mentions weapons, but the general insists: “I can give you money to work in terms of improving the area. What I cannot do – this is very important – is give you weapons.”
The gravity of the war council in a tent at the US forward operating base at Camp Assassin is suspended for a few moments as one of the local Iraqi leaders says jokingly but knowingly: “Don’t worry! Weapons are cheap in Iraq.”
“That’s right, that’s exactly right,” laughs Lynch in reply.”Having armed all sides of the conflict and kept them apart by the threat of arms,” I wrote in a 2010 essay on Asia Times Online, titled “Gen Petraeus’ Thirty Years’ War”, “the United States now expects to depart leaving in place governments of national reconciliation that will persuade well-armed and well-organized militias to play by the rules. It is perhaps the silliest thing an imperial power ever has done. The British played at divide and conquer, whereas the Americans propose to divide and disappear. At some point the whole sorry structure will collapse, and no-one knows it better than Petraeus.”
Petraeus doesn’t deserve criminal charges. But he shouldn’t occupy a pedestal in the Republican pantheon, either.
The Clean Power Plan Is Unconstitutional
The EPA acts as though it has the legislative authority to re-engineer the nation’s electric generating system and power grid. It does not.
Laurence H. Tribe
As a law professor, I taught the nation’s first environmental law class 45 years ago. As a lawyer, I have supported countless environmental causes. And as a father and grandfather, I want to leave the Earth in better shape than when I arrived.
Nonetheless, I recently filed comments with the Environmental Protection Agency urging the agency to withdraw its Clean Power Plan, a regulatory proposal to reduce carbon emissions from the nation’s electric power plants. In my view, coping with climate change is a vital end, but it does not justify using unconstitutional means.
Although my comments opposing the EPA’s proposal were joined by a major coal producer, they reflect my professional conclusions as an independent legal scholar. I say only what I believe, whether I do so pro bono, or in this case having been retained by others. After studying the only legal basis offered for the EPA’s proposed rule, I concluded that the agency is asserting executive power far beyond its lawful authority.
The Clean Power Plan would set a carbon dioxide emission target for every state, and the EPA would command each state, within roughly a year, to come up with a package of laws to meet that target. If the agency approves the package, the state would then have to impose those laws on electric utilities and the public.
The agency would effectively dictate the energy mix used in each state and leave the state with essentially no choice in implementing its plan. But Supreme Court precedent settled over two decades ago in New York v. United States (1992) and reaffirmed by a 7-2 vote as recently as 2012 in NFIB v. Sebelius, the ObamaCare decision, holds that such federal commandeering of state governments defeats political accountability and violates principles of federalism that are basic to our constitutional order.
Even more fundamentally, the EPA, like every administrative agency, is constitutionally forbidden to exercise powers Congress never delegated to it in the first place. The brute fact is that the Obama administration failed to get climate legislation through Congress. Yet the EPA is acting as though it has the legislative authority anyway to re-engineer the nation’s electric generating system and power grid. It does not.
To justify the Clean Power Plan, the EPA has brazenly rewritten the history of an obscure section of the 1970 Clean Air Act. The EPA cites Section 111 of the Clean Air Act as authority for its proposal. In reality, this part of the law expressly says that it may not be used to regulate power plants where, as is the case in this situation, those plants are already being regulated as Congress contemplated under another part of the law, Section 112—one involving hazardous pollutants.
Last spring, the Supreme Court read the statute in precisely that way in Utility Air Regulatory Group v. EPA. The EPA acknowledges that the Clean Air Act “appears by its terms to preclude” its proposal. That is an understatement. And the problem can’t be dismissed as a quirk in the statute. The language at issue has been a feature of the Clean Air Act for decades. That’s why, in 2008 (New Jersey v. EPA), the D.C. Circuit struck down a far less ambitious EPA rule under exactly the same statutory constraint involved here. Today the agency is again circumventing the checks Congress deliberately built into the Clean Air Act and distorting it to justify a wide-ranging carbon rule in a way Congress never intended or authorized.
Frustration with congressional inaction cannot justify throwing the Constitution overboard to rescue this lawless EPA proposal—especially when the EPA itself, through Senate testimony by its administrator, Gina McCarthy, has touted its proposal as “an investment opportunity” that isn’t really “about pollution control” at all.
Some defend the EPA’s power grab on the grounds that it has the potential of averting global disaster. They remind us that, to save the Union during the Civil War, Lincoln was willing to suspend habeas corpus without the congressional authorization the Constitution requires. Today, with the benefit of hindsight, even Lincoln’s decision looks more like an overreaction—akin to the Alien and Sedition Acts and the internment of Japanese Americans after Pearl Harbor—than a genuinely necessary response to an existential crisis.
Justice Robert H. Jackson —Nuremberg prosecutor and among our greatest defenders of constitutionalism and the rule of law—joined the Supreme Court’s decision denying President Harry Truman the authority to seize steel mills during the Korean conflict without the congressional authorization the Constitution required. Truman justified his shortcut by invoking national security, citing the need to prevent labor strife from disrupting the war effort.
In Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Jackson said no. He warned of losing sight of “the balanced power structure of our Republic” and reaffirmed that “ours is a government of laws, not of men.” We should heed his words today.
Mr. Tribe is a professor of constitutional law at Harvard Law School and a University Professor at Harvard University. He was retained by Peabody Energy to provide an independent analysis of the proposed EPA rule.
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