BY DAVID GESPASS
Veteran civil rights activists often say, everything has changed and nothing has changed. That is the feeling anyone who was around when the Pentagon Papers were revealed gets when learning of the Washington Post’s discovery of what government and military officials have been saying behind closed doors for the two decades that the US has been fighting in Afghanistan.
For those not of a certain age who don’t recall the Pentagon Papers, Daniel Ellsberg and Tony Russo spent countless hours surreptitiously making multiple copies of the 47 volumes and 7,000 pages and sneaking them out of their secured location and then leaking them to the news media. Those papers revealed that, despite the constant refrain from Lyndon Johnson, the generals and “Defense” Department officials that we were seeing “the light at the end of the tunnel,” and that the US would soon emerge victorious over Vietnam (the claims went on for years), those same people had long since determined that the nearly 60,000 known dead Americans, the unknown number who returned broken, traumatized and addicted and the $168 billion spent (the cost to Vietnam was magnitudes greater) was pointless and wasted because, Rambo notwithstanding, the war was unwinnable.
First the New York Times, then the Washington Post, and then others began publishing the papers and telling the theretofore hidden history of the Vietnam War. The government tried to prevent their publication but the Supreme Court held unanimously that it could not. Ellsberg and Russo risked prison when they turned the papers over to reporters but were willing to make that sacrifice to reveal the sordid truth. The only reason they did not get convicted was that the government broke into Ellsberg’s psychiatrist’s office to find his treatment records. The presiding judge would not countenance such egregious behavior and the case was dismissed.
So, what has changed since 1971 when the Pentagon Papers were leaked? The Washington Post was able to get the untold story of the Afghanistan war legally through a Freedom of Information Act request and was able to publish the results without fear of prosecution. It didn’t take hours of feeding papers into a photocopier because everything is now digital. But it took three years of legal haggling for the documents to be provided.
On the other hand, the most important lesson of the Pentagon Papers case has not changed at all. Just as the Pentagon Papers revealed that the country’s leaders knew early on that the blood and treasure being expended in Vietnam was inevitably for naught, so too did everyone who looked at Afghanistan know that victory there was impossible. And just Lyndon Johnson and Richard Nixon were more concerned with their political fortunes than the safety of US troops and wise expenditure of government monies, so too have presidents for the past eighteen years kept lying about the prospects of victory in Afghanistan.
What does all this mean? The first, and most important, lesson is that the president’s party makes no difference, that every commander-in-chief of the armed forces (it is important to recall the president is not the commander-in-chief of the country, just of the military services) places self-aggrandizement above the good of the members of the military and the country. And the president and upper echelons of the chain of command have no compunction about lying rather than admit the US will lose a war. Parenthetically, Vietnam blew up the fiction that the US always wins the wars it fights. The War of 1812 was, at best, a draw and the Korean War (evidently to avoid acknowledging it as a war the US hasn’t won, referred to in congressional records as the “Korean Conflict”) is still at a stalemate.
It is sad, indeed, that presidents and Defense secretaries and generals shed crocodile tears for the troops they claim to so admire but treat them as pawns in their political campaigns all the while knowing they are fighting an unwinnable war. No matter, to presidents, that the men and women they laud as heroes are being killed and maimed or return from battle damaged by PTSD or traumatic brain injury or rendered addicted and oftentimes end up homeless. Better that than admit in public what they acknowledge in private, that they are fighting a losing battle.
And that is the second, and sadder lesson; that political leaders do not really care about the people they send into battle. No doubt, some are more pained than others about the dead and wounded, but their pain is subordinated to their ambition.
Third, Congress has completely abandoned its authority. The Constitution requires that Congress, not the president, declare war. The War Powers Act of 1973 purportedly reclaimed for Congress its authority and, for a couple of years, it seemed to work. The country was sick of war and no one wanted to get involved in another losing cause. But, slowly, presidents recovered. Ronald Reagan ordered the invasion of the tiny, defenseless island nation of Grenada, a guaranteed win for US forces. That, and other small military actions, restored supposed faith in US military might. Then, after the events of 9/11, Congress passed the Authorization for the Use of Military Force, allowing the president to use such force against the perpetrators of that crime, whenever and wherever they were found. It has been used to justify military strikes throughout the Middle East against countries and targets having no relationship to Al Qaida, starting with the invasion of Iraq ordered by George W. Bush.
Donald Trump, since taking office, has generally reversed Theodore Roosevelt’s famous maxim by speaking loudly and carrying a twig. He has mostly refrained from committing more forces in more places, though has not done much, as yet, to remove those already there. (As this is being written, there is talk of a kind of peace treaty with the Taliban and reduction of US forces in Afghanistan.) At the same time, he has focused on Iran. The situation there is volatile and unpredictable, so we must bear in mind the lessons of the Pentagon Papers and the Post’s expose about Afghanistan.
There is one final lesson or, perhaps, a conclusion to be drawn from the three lessons outlined above. Over the years, again regardless of party, the power and authority of the president has expanded. No president, at least since Jimmy Carter, has relinquished power that prior presidents arrogated to themselves. Trump has claimed unlimited power to act as he will. Today, the target is Iran. Earlier, it was North Korea, until Trump declared that he and Kim Jong-Un “fell in love.” But given his marital history, one cannot be sure how long that affair of the heart will last. The Federalist Papers went to some length describing how the legislative power was circumscribed by the Constitution on the grounds that the legislative branch of government was the most powerful. That appears no longer to be the case. The founders were fearful of placing unlimited power in one branch of government, much less of one person, but that is the direction in which we are heading and that is exactly how Trump envisions the presidency.
How do we stop this? Arthur Kinoy, a legendary constitutional law professor, said there were four branches of government, legislative, executive, judicial and the people. “The people,” he concluded, “are supreme!” It is in our hands to determine the destiny of the country and the world. It is time for the people to reclaim their rightful place as the supreme power in the United States.
David Gespass is a co-founder of MLTF and has formerly served both a member of the Military Law Task Force Steering Committee and president of the National Lawyers Guild.