Kevin Gutzman
Campaign for Liberty
June 28, 2010

Thomas E. Woods, Jr., author of such smashes as Meltdown, The Politically Incorrect Guide to American History, and The Church and the Market, has done it again. After reconciling Catholic teaching and free-market economics and after explaining how violation of free-market principles brought on the current depression, Woods here takes on the central issue of our day: what to do about out-of-control government.

Under today’s constitutional law, the “Federal” (really now national) Government can do anything it wants. The speaker of the House literally laughs at the implication that it cannot. For anyone who knows history and loves liberty, this is a worrisome situation.

What to do?

Woods’s answer is to dust off the Jeffersonian tradition of nullification. Nullification lays out the argument for nullification’s constitutionality, describes historic and contemporary instances in which the doctrine has been and is being employed, and advocates that it be used more widely today. Finally, in a very useful appendix, Woods provides some of the classic nullification documents from days gone by. The appendix serves both to arm the reader with pro-nullification arguments and to illustrate the variety of circumstances to which it has been applied.

In his first chapter, “The Return of a Forbidden Idea,” Woods describes the situation we now face as “the ongoing and evidently ceaseless exercise of unconstitutional powers by the federal government.” (p. 19) By reference to the Bring the Guard Home movement, Firearms Freedom Acts, and medical marijuana acts that have been considered and/or adopted in literally dozens of states these past few years, Woods shows that there is an impulse afoot in America to restore the constitutional system. Maybe elite academics have agreed among themselves that the Constitution gets in the way of their bottomless urge to do good, but the people never agreed. They are beginning to bestir themselves from a long constitutional slumber.

Nullification, Woods shows in his second chapter, is the “rightful remedy” to the illness of tyranny. And that is the right word to denote the Federal Government in the current situation: “tyranny,” the ancient Greeks’ word for unconstitutional rule. Note that a tyrant need not be malevolent, he merely must rule unconstitutionally — as the Federal Government does today.

Wordsmith Woods calls the question of the relationship between the government’s behavior and the Constitution’s allocation of powers “the Great Unmentionable.” (p. 21) Federal and state officials alike commonly ignore the question of the Constitution. It is the great and powerful Oz, to be feared despite its powerlessness.

Yet, resignation in the face of usurpation is not the American tradition. Rather, the people who made the Revolution insisted that their colonial legislatures had the primary role in their self-governance, and that the British government shared governmental functions only for the colonists’ convenience. This view was most clearly developed in Virginia, where Richard Bland, Thomson Mason, Landon Carter, and finally Thomas Jefferson elaborated it in the 1760s and 1770s.

This Virginia doctrine, which we can join Woods in calling “Jeffersonian,” did not change with the coming of independence, the Articles of Confederation, or the US Constitution. Those people, and their counterparts in other states, insisted that the Articles affirm that their state retained its sovereignty. They also wrung from nationalists in the Philadelphia Convention a document that retained the federal — not national — nature of the government on which they had long insisted.

That is why in state after state, leading Framers and Ratifiers such as the governors of North Carolina and Virginia and the two chief authors of The Federalist promised that the new government would have only the powers “expressly delegated.” It is also why the Virginia General Assembly protested the adoption of laws that Congress had not been expressly delegated power to adopt from the very first Congress.

The first decade under the current constitution saw one party, the Federalist Party, attempt to remake the US Government into a national government. Like John McCain and Russ Feingold today, John Adams and his allies in Congress wanted to regulate citizens’ criticism of federal officials. In response, Jefferson and his Republican allies promulgated legislative resolutions, the Virginia and Kentucky Resolutions of 1798, setting out their understanding of the limited nature of the delegations of power the states had made in creating the Federal Government. In case the new government tried to grab more power, those two states said, the states “have the right, and are in duty bound, to interpose.” Kentucky, in answering criticisms of its first set of resolutions, adopted a second set the next year saying that in case of unconstitutional and dangerous federal policy, “a nullification … is the rightful remedy.”

The great contribution of Nullification is to show how the Jeffersonian reading of the Constitution resonates today. The short of it, as Woods explains in Chapter 3, “American History and the Spirit of ’98,” is that this Jeffersonian reading of the Constitution was long the majority position in American politics. In fact, from the Virginia and Kentucky Resolutions’ promulgation in 1798 to Franklin Roosevelt’s decision to renege on his 1932 campaign pledges of limited government, most federal elections were won by parties standing for the Jeffersonian view.

Woods is at his acerbic best in describing the campaign of distortion and slander Establishment figures now maintain against the idea of nullification. The distortion lies in their inaccurate insistence that Jefferson and Company invented nullification in 1798 in response to specific circumstances, when in fact the resolutions of 1798 were merely the latest iteration of a long-standing tradition; the slander lies in their attempt to tie all invocations of the right of nullification to the defense of slavery.

Not only was slavery not the issue in 1798, but it was not the issue when nullification was employed in 1809, or when it was brought up in the 1810s, or when it was used in the 1820s, or when it was invoked in the 1830s. Slavery was the issue when states were nullifying in the 1850s, but the nullification was undertaken on behalf of supposed fugitive slaves by abolitionists in those cases. Woods does a masterful job in explaining how nullification has been used in behalf of free elections, free speech, and freedom of the press (1798-1801), against conscription (during the War of 1812), in behalf of free trade (in the 1820s and ’30s), and in favor of due process for blacks.

When Woods uses the word “nullification,” he does not necessarily have in mind formal legislative resistance to federal policy in the mode of the Carolina Nullifiers of 1832-33. Rather, he is thinking of a range of less confrontational measures, from simple refusal by state authorities to respect federal edicts, through adoption of state laws in conflict with federal policy (such as medical marijuana laws), to adoption of state laws claiming control over areas of policymaking that Congress has long since arrogated to itself (such as Firearms Freedom Acts).

As he notes in his last chapter, “Nullification Today,” Woods realizes that these ideas will jar people who are trained in “constitutional law.” After all, he says, that “law” takes as its starting point the assumptions that Congress can do essentially whatever it wants and that state Executive and Judicial departments are more or less subordinate to their federal counterparts. Yet, he again reminds, Thomas Jefferson, James Madison, and a host of other eminent philosopher-statesmen of the Revolution and Early Republic never understood things that way.

So far as they were concerned, “constitutional law” that conflicted with the people’s understanding at the time they ratified the Constitution was not law at all. One did not have to wait for a court ruling to ignore it, because for all intents and purposes it did not exist.

How could that be? Remember: the Revolution was fought for home rule through legislative elections. Only the powers “expressly delegated” to the new-fangled Federal Government made exceptions to that rule. Beyond that, Congress could not go, and if it tried, its effort was unavailing.

For over a century, Woods says, the Federal Government has grown and grown. Electing new officials has not checked that growth, even when those officials were authentically dedicated to reining in the government’s growth. To those who might think of nullification as a risky strategy, Woods’s response is that nothing else is working. Nullification is a tool in the bag of those who want to dam the river of government expansion. It has been used before, and to good ends. It is being used now, for minor purposes. Woods hopes to see it actually implemented in states that understand Obamacare and other such federal initiatives to be unconstitutional. To judge by what is coming out of legislatures these days, perhaps he will get his wish. As he puts it, “We have been helpless spectators long enough.” (p. 143)

Tom Engelhardt
Campaign for Liberty
June 25, 2010

Bush’s Pilotless Dream, Smoking Drones, and Other Strange Tales from the Crypt

Admittedly, before George W. Bush had his fever dream, the U.S. had already put its first unmanned aerial vehicles (UAVs) or drone surveillance planes in the skies over Kosovo in the late 1990s. By November 2001, it had armed them with missiles and was flying them over Afghanistan.

In November 2002, a Predator drone would loose a Hellfire missile on a car in Yemen, a country with which we weren’t at war. Six suspected al-Qaeda members, including a suspect in the bombing of the destroyer the USS Cole would be turned into twisted metal and ash — the first “targeted killings” of the American robotic era.

Just two months earlier, in September 2002, as the Bush administration was “introducing” its campaign to sell an invasion of Iraq to Congress and the American people, CIA Director George Tenet and Vice President Dick Cheney “trooped up to Capitol Hill” to brief four top Senate and House leaders on a hair-raising threat to the country. A “smoking gun” had been uncovered.

According to “new intelligence,” Iraqi dictator Saddam Hussein had in his possession unmanned aerial vehicles advanced enough to be armed with biological and chemical weaponry. Worse yet, these were capable — so the CIA director and vice president claimed — of spraying those weapons of mass destruction over cities on the east coast of the United States. It was just the sort of evil plan you might have expected from a man regularly compared to Adolf Hitler in our media, and the news evidently made an impression in Congress.

Democratic Senator Bill Nelson of Florida, for example, said that he voted for the administration’s resolution authorizing force in Iraq because “I was told not only that [Saddam had weapons of mass destruction] and that he had the means to deliver them through unmanned aerial vehicles, but that he had the capability of transporting those UAVs outside of Iraq and threatening the homeland here in America, specifically by putting them on ships off the eastern seaboard.”

In a speech in October 2002, President Bush then offered a version of this apocalyptic nightmare to the American public. Of course, like Saddam’s supposed ability to produce “mushroom clouds” over American cities, the Iraqi autocrat’s advanced UAVs (along with the ships needed to position them off the U.S. coast) were a feverish fantasy of the Bush era and would soon enough be forgotten. Instead, in the years to come, it would be American pilotless drones that would repeatedly attack Iraqi urban areas with Hellfire missiles and bombs.

In those years, our drones would also strike repeatedly in Afghanistan, and especially in the tribal borderlands of Pakistan, where in an escalating “secret” or “covert” war, which has been no secret to anyone, multiple drone attacks often occur weekly. They are now considered so much the norm that, with humdrum headlines slapped on (“U.S. missile strike kills 12 in NW Pakistan”), they barely make it out of summary articles about war developments in the American press.

And yet those robotic planes, with their young “pilots” (as well as the camera operators and intelligence analysts who make up a drone “crew”) sitting in front of consoles 7,000 miles away from where their missiles and bombs are landing, have become another kind of American fever dream. The drone is our latest wonder weapon and a bragging point in a set of wars where there has been little enough to brag about.

CIA director Leon Panetta has, for instance, called the Agency’s drones flying over Pakistan “the only game in town” when it comes to destroying al-Qaeda; a typically anonymous U.S. official in a Washington Post report claims of drone missile attacks, “We’re talking about precision unsurpassed in the history of warfare”; or as Gordon Johnson of the Pentagon’s Joint Forces Command told author Peter Singer, speaking of the glories of drones: “They don’t get hungry. They are not afraid. They don’t forget their orders. They don’t care if the guy next to them has been shot. Will they do a better job than humans? Yes.”

Seven thousand of them, the vast majority surveillance varieties, are reportedly already being operated by the military, and that’s before swarms of “mini-drones” come on line. Our American world is being redefined accordingly.

In February, Greg Jaffe of the Washington Post caught something of this process when he spent time with Colonel Eric Mathewson, perhaps the most experienced Air Force officer in drone operations and on the verge of retirement. Mathewson, reported Jaffe, was trying to come up with an appropriately new definition of battlefield “valor” — a necessity for most combat award citations — to fit our latest corps of pilots at their video consoles. “Valor to me is not risking your life,” the colonel told the reporter. “Valor is doing what is right. Valor is about your motivations and the ends that you seek. It is doing what is right for the right reasons. That to me is valor.”

Smoking Drones

These days, CIA and administration officials troop up to Capitol Hill to offer briefings to Congress on the miraculous value of pilotless drones: in disrupting al-Qaeda, destroying its leadership or driving it “deeper into hiding,” and taking out key figures in the Taliban. Indeed, what started as a 24/7 assassination campaign against al-Qaeda’s top leadership has already widened considerably. The “target set” has by now reportedly expanded to take in ever lower-level militants in the tribal borderlands. In other words, a drone assassination campaign is morphing into the first full-scale drone war (and, as in all wars from the air, civilians are dying in unknown numbers).

If the temperature is again rising in Washington when it comes to these weapons, this time it’s a fever of enthusiasm for the spectacular future of drones (which the Air Force has plotted out to the year 2047), of a time when single pilots should be able to handle multiple drones in operations in the skies over some embattled land, and of a far more distant moment when those drones should be able to handle themselves, flying, fighting, and making key decisions about just who to take out without a human being having to intervene.

When we possess such weaponry, it turns out, there’s nothing unnerving or disturbing, apocalyptic or dystopian about it. Today, in the American homeland, not a single smoking drone is in sight.

Now it’s the United States whose UAVs are ever more powerfully weaponized. It’s the U.S. which is developing a 22-ton tail-less drone 20 times larger than a Predator that can fly at Mach 7 and (theoretically) land on the pitching deck of an aircraft carrier. It’s the Pentagon which is planning to increase the funding of drone development by 700% over the next decade.

Admittedly, there is a modest counter-narrative to all this enthusiasm for our robotic prowess, “precision,” and “valor.” It involves legal types like Philip Alston, the United Nations special representative on extrajudicial executions. He recently issued a 29-page report criticizing Washington’s “ever-expanding entitlement for itself to target individuals across the globe.” Unless limits are put on such claims, and especially on the CIA’s drone war over Pakistan, he suggests, soon enough a plethora of states will follow in America’s footprints, attacking people in other lands “labeled as terrorists by one group or another.”

Such mechanized, long-distance warfare, he also suggests, will breach what respect remains for the laws of war. “Because operators are based thousands of miles away from the battlefield,” he wrote, “and undertake operations entirely through computer screens and remote audio-feed, there is a risk of developing a ‘PlayStation’ mentality to killing.”

Similarly, the ACLU has filed a freedom of information lawsuit against the U.S. government, demanding that it “disclose the legal basis for its use of unmanned drones to conduct targeted killings overseas, as well as the ground rules regarding when, where, and against whom drone strikes can be authorized, and the number of civilian casualties they have caused.”

But pay no mind to all this. The arguments may be legally compelling, but not in Washington, which has mounted a half-hearted claim of legitimate “self-defense,” but senses that it’s already well past the point where legalities matter. The die is cast, the money committed. The momentum for drone war and yet more drone war is overwhelming.

It’s a done deal. Drone war is, and will be, us.

A Pilotless Military

If there are zeitgeist moments for products, movie stars, and even politicians, then such moments can exist for weaponry as well. The robotic drone is the Lady Gaga of this Pentagon moment.

It’s a moment that could, of course, be presented as an apocalyptic nightmare in the style of the Terminator movies (with the U.S. as the soul-crushing Skynet), or as a remarkable tale of how “networking technology is expanding a homefront that is increasingly relevant to day-to-day warfare” (as Christopher Drew recently put it in the New York Times). It could be described as the arrival of a dystopian fantasy world of one-way slaughter verging on entertainment, or as the coming of a generation of homegrown video warriors who work “in camouflage uniforms, complete with combat boots, on open floors, with four computer monitors on each desk… and coffee and Red Bull help[ing] them get through the 12-hour shifts.” It could be presented as the ultimate in cowardice — the killing of people in a world you know nothing about from thousands of miles away — or (as Col. Mathewson would prefer) a new form of valor.

The drones — their use expanding exponentially, with ever newer generations on the drawing boards, and the planes even heading for “the homeland” — could certainly be considered a demon spawn of modern warfare, or (as is generally the case in the U.S.) a remarkable example of American technological ingenuity, a problem-solver of the first order at a time when few American problems seem capable of solution. Thanks to our technological prowess, it’s claimed that we can now kill them, wherever they may be lurking, at absolutely no cost to ourselves, other than the odd malfunctioning drone. Not that even all CIA operatives involved in the drone wars agree with that one. Some of them understand perfectly well that there’s a price to be paid.

As it happens, the enthusiasm for drones is as much a fever dream as the one President Bush and his associates offered back in 2002, but it’s also distinctly us. In fact, drone warfare fits the America of 2010 tighter than a glove. With its consoles, chat rooms, and “single shooter” death machines, it certainly fits the skills of a generation raised on the computer, Facebook, and video games. That our valorous warriors, their day of battle done, can increasingly leave war behind and head home to the barbecue (or, given American life, the foreclosure) also fits an American mood of the moment.

The Air Force “detachments” that “manage” the drone war from places like Creech Air Force Base in Nevada are “detached” from war in a way that even an artillery unit significantly behind the battle lines or an American pilot in an F-16 over Afghanistan (who could, at least, experience engine failure) isn’t. If the drone presents the most extreme version thus far of the detachment of human beings from the battlefield (on only one side, of course) and so launches a basic redefinition of what war is all about, it also catches something important about the American way of war.

After all, while this country garrisons the world, invests its wealth in its military, and fights unending, unwinnable frontier wars and skirmishes, most Americans are remarkably detached from all this. If anything, since Vietnam when an increasingly rebellious citizens’ army proved disastrous for Washington’s global aims, such detachment has been the goal of American war-making.

As a start, with no draft and so no citizen’s army, war and the toll it takes is now the professional business of a tiny percentage of Americans (and their families). It occurs thousands of miles away and, in the Bush years, also became a heavily privatized, for-profit activity. As Pratap Chatterjee reported recently, “[E]very US soldier deployed to Afghanistan and Iraq is matched by at least one civilian working for a private company. All told, about 239,451 contractors work for the Pentagon in battle zones around the world.” And a majority of those contractors aren’t even U.S. citizens.

If drones have entered our world as media celebrities, they have done so largely without debate among that detached populace. In a sense, our wars abroad could be thought of as the equivalent of so many drones. We send our troops off and then go home for dinner and put them out of mind. The question is: Have we redefined our detachment as a new version of citizenly valor (and covered it over by a constant drumbeat of “support for our troops”)?

Under these circumstances, it’s hardly surprising that a “pilotless” force should, in turn, develop the sort of contempt for civilians that can be seen in the recent flap over the derogatory comments of Afghan war commander General Stanley McChrystal and his aides about Obama administration officials.

The Globalization of Death

Maybe what we need is the return of George W. Bush’s fever dream from the American oblivion in which it’s now interred. He was beyond wrong, of course, when it came to Saddam Hussein and Iraqi drones, but he wasn’t completely wrong about the dystopian Drone World to come. There are now reportedly more than 40 countries developing versions of those pilot-less planes. Earlier this year, the Iranians announced that they were starting up production lines for both armed and unarmed drones. Hezbollah used them against Israel in the 2006 summer war, years after Israel began pioneering their use in targeted killings of Palestinians.

Right now, in what still remains largely a post-Cold War arms race of one, the U.S. is racing to produce ever more advanced drones to fight our wars, with few competitors in sight. In the process, we’re also obliterating classic ideas of national sovereignty, and of who can be killed by whom under what circumstances. In the process, we may not just be obliterating enemies, but creating them wherever our drones buzz overhead and our missiles strike.

We are also creating the (il)legal framework for future war on a frontier where we won’t long be flying solo. And when the first Iranian, or Russian, or Chinese missile-armed drones start knocking off their chosen sets of “terrorists,” we won’t like it one bit. When the first “suicide drones” appear, we’ll like it even less. And if drones with the ability to spray chemical or biological weapons finally do make the scene, we’ll be truly unnerved.

In the 1990s, we were said to be in an era of “globalization” which was widely hailed as good news. Now, the U.S. and its detached populace are pioneering a new era of killing that respects no boundaries, relies on the self-definitions of whoever owns the nearest drone, and establishes planetary free-fire zones. It’s a nasty combination, this globalization of death.