I was asleep at the reel when the red speckled brown sucked in my egg pattern and exploded into the air. The trout tumbled back into the river and shot down stream toward me, taking full advantage of the slack line. He then wrapped the leader around the dabbling toes of an exposed tree root and snapped it. I was left holding a limp line. It was a fuck-me-with-a-hot-poker moment.
Until this point I had pounded the river for the better part of the afternoon. I started with a black wooly bugger, then switched to a sculpin, followed by a worm and finally to a prince nymph trailing an egg. I probed likely pools and riffles getting only the occasional rock strike. Along the way my mind had gone numb; I was mind-dead from watching the fly line flow with the current over the last couple of hours.
I laced on a new leader, tied on a number ten bead-head prince nymph and trailed an egg behind it; the identical rig as before. I stepped back into the run, waved the bamboo rod a couple of times and shot the egg up and across where I had hooked the bull. The egg drifted, maybe a few feet, when the bull’s twin sucked it in. The same antics occurred. The fish bolted three feet above the surface, nose-dived and torpedoed downstream. This time I was not an empty fishing vest. I managed the slack and the bamboo rod flexed deep into the handle, allowing me to control the fish’s tantrum.
The bull was wearing the deep colors of the spawn. When I picked him up a white ribbon of sperm squirted from his rear hole and his stomach hung heavy, full and mottled like a game winning bag of marbles. One moment he had been fertilizing eggs and in the next, feasting on the dislodged caviar that was drifting in the current. There is a symmetry here that I appreciate.
A dinner fish I decided. A glass of claret, some potatoes and onions, and a green salad would round out the meal. I smacked the brown on top of the head with my folded Swiss Army knife, opened the blade and gutted him. The fish dripped blood on my waders like ketchup from an overstuffed ballpark hot dog. I pawed through the guts, found the stomach and unzipped it with the point of my knife. A harvest of iridescent coral colored fish eggs spilled out. Had these eggs escaped the bull, they probably would have drifted into slack water, settling into a bog of silt or moss where they would have smothered and decayed.
The bull’s carnivorous act is done without guilt or guile. It’s done out of necessity, the need to gain sustenance. The abundance of summer is over. The large hatches of aquatic insects are gone, and the terrestrials have disappeared as well. The stream bed in late fall offers relatively little easy pickins. Shortly the water temperature will plummet, forcing the trout into a drowsy dormancy. This is the trout’s last feast of the season. He has to take advantage of it to survive the coming winter.
I teased the spawners for the better part of an hour, landing fish after fish. Not wanting to exhaust the run, I reeled up, walked over to a fallen log overlooking the run and benched myself. I watched the spawning bed, but could not see a single fish, nor could I distinguish the spawning bed from the surrounding river bottom. The water simply slipped over the top of the bed, glittering and gurgling, not offering a clue. I had Forrest Gumped my way into the spawning bed.
Deciding I had tormented these fish long enough, I walked up to another pool. I drifted the egg through the hole a dozen times or more, but no explosion. What was so special about the hole before? The cogs in my head spun. I walked back to the spawning bed, sat on the bench and watched the river caress it. Slowly I pieced together a subtle, pockmarked pattern in the river bed that had camouflaged itself under the shimmer of the current. Then in an oh-shit epiphany I saw the spawning bed in its entirety. I realized I had only tapped the head of the bed.
I walked downstream, well below the foot of the bed and probed with a dozen casts – Nothing… Zilch… Zippo. When I checked out the foot of the bed, ker-slam-mo! A brown lunched on the egg and registered his protest by romping downstream. I released the spawner, reeled up and humped it upstream. I was a man on a mission. I ranged a good couple of hundred yards until I saw the same subtle pockmarked structure. First cast into the suspected spawning bed rendered a bucking, hook jawed bull, whose head filled the palm of my hand, from the crescent of his gill to the crook at the tip of his lower jaw. The action was again fast and furious. Once I worked my way through the bed then silence. My theory was confirmed, case closed.
The river had given me a gift that day; a right of trespass into a trout’s mating sanctuary. I probably will never share this gift. It is my fear that so called fishing guides will squat on these beds and plop their well-heeled clients in the middle of the runs, where they will torment the spawners well past exhaustion, devastating the spawning bed for the sake of a buck. You see this scenario unfold on all of the West’s popular fishing destinations. The profit motive, combined with a mutated sense of entitlement and a need for instant gratification, plagues the fly fisherman of this country.
Is this attitude towards guides and their clients hypocritical on my part? Not in my mind. Fly fishing for me is more about discovery than the simple hook-and-fight contest. The discovery process places me in intimate contact with the river, her bed and the populations she supports. It is the unraveling of the river’s web of life that enriches my fishing.
However, I am not above gloating or bragging. In fact, I seem to prefer doing both at the same time. And yes, I told my fishing cronies about this fishing. When they asked where I caught those fish, my sardonic sense of humor flowered. I formed my index finger into a hook, snagged the inside of my lower lip, grinned a smartass grin and quipped: “Right in the corner of the mouth.” My compadres have known me long enough to know my answer, but ask they must and howl with laughter I must. I just kill myself sometimes.
Copyright Stephan Fowler 2008. All rights reserved.
Friday, April 11, 2008
Friday, April 4, 2008
Alzheimer's Lullaby
Alzheimer’s disease took my father. He was a Great Depression era kid, grew up tough, took a long drink from life and owned a sense of grace.
Some glibly say that those of us watching Alzheimer’s envelop a loved one are in a state of denial. Denial implies a choice; that somehow Alzheimer’s has been presented as a choice, but you simply choose to ignore the possibility. Only those of us that have seen the disease entangle a loved one know that you cannot look at a loved one as though they are the subject of a multiple choice question. The uninitiated onlooker is utterly bewildered. The only frame of reference you have is the loved one’s past. The vision you had of them does not fit the figure before you.
At first I thought that my father just needed to get out more; he just needed new material to freshen his mind. However, his conversations always migrated back to memories of years earlier. It was maddening. I wanted the conversation to move forward, to explore the contemporary, but the conversations remained entrenched in the past. It never occurred to me that Alzheimer’s was in the process of sending his memories of the here and now to the Bermuda Triangle.
My father’s sense of humor fell off the radar screen as well. The sense of humor that coined the quirky comic phrase: “Well isn’t that just prophylactic!” had vanished without a trace. The jokes, the kibitzing, and the warmth were gone without so much as a whisper. Once in a while a spark would reappear – a laugh, a smile or a word. You hold out hope that your loved one is emerging, but the sparks always fade back into the fog, reappearing less frequently as time goes on; then it occurs to you that you can’t remember the last spark.
My father knew he was lost. One evening he stood in my doorway, drew me close, eyes swollen with pleading tears, and whispered: “I’m in trouble. Something is wrong with me and I can’t figure it out.” For a moment I swam in the pooled tears in his eyes. He turned and left. I got the message.
About this time my father paced relentlessly, to the point of exhaustion. He had wandered into Sundowner’s syndrome. Perhaps he was searching for a beacon that would guide him back home through the fog of the Bermuda Triangle, but she is selfish. She does not give back what she has taken.
By the time it’s obvious that it is Alzheimer’s, the disease has spun your loved one’s mind like a roulette wheel. My dad sat down next to me, looked at me and uttered, “Chicken shit 1st Sergeant Fowler. (Fowler is our last name.) Christ, I hate seeing my men coming back all shot up!” He fell silent, turned and stared straight ahead. The roulette wheel had spun, the ball dropped and he was back in the South Pacific fighting the Japanese, in the spring of his manhood. I was not to be born for another eight years.
As Alzheimer’s progresses Friday the 13th emerges; paranoid psychosis finds a home in your loved one. Their mind becomes a caldron, mixing a witches brew of actual memories and grotesque fantasies. My father wanted to keep a knife with him at all times; a butter knife, steak knife, butcher knife, any knife. He was convinced that starving Japanese soldiers were coming in the night to steal food. How do you disarm a man who is trying to protect himself?
In a word: drugs. The prescribed anti-psychotic drugs dropped him into a zombie like state. The man was mobile when lead and stationary when placed. My father had become warehouse material. And my mother was exhausted. He died shortly after being placed in a nursing home. It’s interesting to note that anti-psychotic drugs are suspected to hasten the death of an Alzheimer’s sufferer. In my father’s case, the correlation seems strong.
They say Alzheimer’s disease is the long goodbye. That doesn’t ring with me. I like to think that Alzheimer’s disease sings a lullaby, distracting at first, then maddening, but ultimately comforting in the end. A comfort that eases you into that long Good Night.
Copyright Stephan Fowler 2008. All rights reserved.
Some glibly say that those of us watching Alzheimer’s envelop a loved one are in a state of denial. Denial implies a choice; that somehow Alzheimer’s has been presented as a choice, but you simply choose to ignore the possibility. Only those of us that have seen the disease entangle a loved one know that you cannot look at a loved one as though they are the subject of a multiple choice question. The uninitiated onlooker is utterly bewildered. The only frame of reference you have is the loved one’s past. The vision you had of them does not fit the figure before you.
At first I thought that my father just needed to get out more; he just needed new material to freshen his mind. However, his conversations always migrated back to memories of years earlier. It was maddening. I wanted the conversation to move forward, to explore the contemporary, but the conversations remained entrenched in the past. It never occurred to me that Alzheimer’s was in the process of sending his memories of the here and now to the Bermuda Triangle.
My father’s sense of humor fell off the radar screen as well. The sense of humor that coined the quirky comic phrase: “Well isn’t that just prophylactic!” had vanished without a trace. The jokes, the kibitzing, and the warmth were gone without so much as a whisper. Once in a while a spark would reappear – a laugh, a smile or a word. You hold out hope that your loved one is emerging, but the sparks always fade back into the fog, reappearing less frequently as time goes on; then it occurs to you that you can’t remember the last spark.
My father knew he was lost. One evening he stood in my doorway, drew me close, eyes swollen with pleading tears, and whispered: “I’m in trouble. Something is wrong with me and I can’t figure it out.” For a moment I swam in the pooled tears in his eyes. He turned and left. I got the message.
About this time my father paced relentlessly, to the point of exhaustion. He had wandered into Sundowner’s syndrome. Perhaps he was searching for a beacon that would guide him back home through the fog of the Bermuda Triangle, but she is selfish. She does not give back what she has taken.
By the time it’s obvious that it is Alzheimer’s, the disease has spun your loved one’s mind like a roulette wheel. My dad sat down next to me, looked at me and uttered, “Chicken shit 1st Sergeant Fowler. (Fowler is our last name.) Christ, I hate seeing my men coming back all shot up!” He fell silent, turned and stared straight ahead. The roulette wheel had spun, the ball dropped and he was back in the South Pacific fighting the Japanese, in the spring of his manhood. I was not to be born for another eight years.
As Alzheimer’s progresses Friday the 13th emerges; paranoid psychosis finds a home in your loved one. Their mind becomes a caldron, mixing a witches brew of actual memories and grotesque fantasies. My father wanted to keep a knife with him at all times; a butter knife, steak knife, butcher knife, any knife. He was convinced that starving Japanese soldiers were coming in the night to steal food. How do you disarm a man who is trying to protect himself?
In a word: drugs. The prescribed anti-psychotic drugs dropped him into a zombie like state. The man was mobile when lead and stationary when placed. My father had become warehouse material. And my mother was exhausted. He died shortly after being placed in a nursing home. It’s interesting to note that anti-psychotic drugs are suspected to hasten the death of an Alzheimer’s sufferer. In my father’s case, the correlation seems strong.
They say Alzheimer’s disease is the long goodbye. That doesn’t ring with me. I like to think that Alzheimer’s disease sings a lullaby, distracting at first, then maddening, but ultimately comforting in the end. A comfort that eases you into that long Good Night.
Copyright Stephan Fowler 2008. All rights reserved.
Thursday, April 3, 2008
Art of the Spanish Inquisition, Part 2
The Bush Administration has provided the legal machine that allows a CIA interrogator to practice the craft of a Spanish Inquisitor. The behind the scenes legal maneuvering by the White House employed the same tools that repair and tune the engine of democracy: Congressional acts, legal guidance from the Justice Department and the power of the Presidency. These tools demonstrate the hand-in-hand cooperation between the White House and the Executive and Congressional branches of Government. It is this cooperation and the conduct of torturous “enhanced interrogations” that deserves our attention.
The Bush Administration’s strategy behind this maneuvering consists of five prongs. First and foremost, get the required legal foundation to allow torturous interrogations. Without a legal foundation, the Executive branch risks running afoul of the Constitution. Second, conduct the interrogations in secret, outside the jurisdiction of the federal court system, in countries that are not squeamish about torture. Third, detain prisoners for an indefinite amount of time. (Withhold the Constitutional guarantee of the writ of habeas corpus, denying the detainee the opportunity to challenge the validity of the charges held against him and the appropriateness of the detainment.) Fourth, have complete control over the judicial proceedings to allow for quick convictions that support a political agenda. And fifth, do not allow the free press access to detainees.
President Bush derives his power to direct torturous enhanced interrogations from Article 2 of the Constitution, augment by two interpretations of Article 2 that argue for expansive presidential powers. Article 2, Section 1, known as the “Vesting Clause”, states: “The executive power shall be vested in President of the United States. Section 2 states: “The President shall be Commander in Chief of the Army and Navy of the United States…He shall have Power, by and with the Advice and Consent of the Senate to make Treaties…” Article 2 is simple, elegant, but hauntingly vague. Woefully absent is the definition of Executive Power and an illustrative or exhaustive enumeration of presidential powers. This lack of specificity provides fertile ground for the growth of arguments that attempt to define the reach of presidential power. The Bush Administration subscribes to two such complimentary arguments that promote expansive presidential powers, the “Vesting Clause Thesis” and the “Unitary Executive Theory”.
The Vesting Clause thesis claims that the “Vesting Clause” implicitly grants the President an array of residual powers not specified in Article 2. The notion is that the founding fathers intended the Constitution to reflect a conception of what is “naturally” and “essentially” within executive power.[1] Accordingly, Article 2 grants the President all powers that are in their nature executive and all powers not explicitly delegated to the other two branches. Further, it endows the President to be the sole organ for the United States in matters of foreign policy; it allows the President to withdraw from treaties without Congressional consent and it empowers the President, as Command in Chief, to commit U.S. troops without Congressional advice or consent.
The unitary executive theory speaks to the structure and governance of the Executive branch. It postulates that the Constitution creates a “hierarchical, unified executive department under the direct control of the President.”[2] In other words, the president is vested with the singular power of decision making for the entire Executive Branch. President Bush pledged his allegiance to this theory when he stated: “I am the Decider and I will decide what is best” to fend off Congressional pressure to dismiss Secretary of Defense Donald Rumsfeld.
Together these arguments push the Constitutional envelope, expanding the President’s foreign policy powers and the President’s control over the Executive branch. However since both the unitary executive theory and the vesting clause thesis are interpretations of executive power, not explicitly mentioned in the Constitution, legal underpinnings must be put in place to implement them.
Enter the Office of Legal Counsel (OLC), directly under the U.S. Attorney General. The OLC is the sanctioned oracle that interrupts the U.S. Constitution for the Judicial and Executive branches of government. The strength of the OLC opinions, rendered in memorandum, cannot be understated. Only the President and the Attorney General can override an OLC opinion. If the President requests an OLC opinion and acts accordingly he is acting under good faith, constitutionally speaking, avoiding the wrath of Congress and the Judiciary.
In 2001, the key OLC lawyers were Jay Bybee, Assistant Attorney General and John C. Yoo, Deputy Assistant Attorney General. Their views on presidential power and the conduct of the war on terror mirror the Bush Administration’s making them the White House’s go-to men. Yoo and Bybee played a key role in engineering the legal justifications, which resulted in a tacit endorsement by the OLC, for implementing the unitary executive theory and vesting clause thesis. The September 25 OLC memorandum[3] , signed by John Yoo, concludes that the President has the plenary constitutional power to direct military action against any organization that represents a threat to the security of the United States. Further, neither the War Powers Resolution[4] nor the Iraq Joint Resolution[5] “can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response. These decisions, under our Constitution, are for the President alone to make.” The Vesting Clause Thesis has taken form.
Fundamentally the September 25 OLC Memorandum pours the legal footing to support the foundation of a radically new detainee treatment and interrogation policy that incorporates torture. This dramatic shift, labeled the “New Paradigm”, was opined in a January 2002 memorandum to President Bush by Alberto Gonzales, White House Counsel. The New Paradigm places a high premium on “the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.” [6] The New Paradigm reflected the fear Americans felt the morning after 9/11; the fear that, as Daniel Marcus, General Counsel for the 9-11 Commission, put it, “September 11 was only installment number one.” [7]
The crucial first prong of the Administration’s strategy is put in place by August 2002. The OLC, under the leadership of Jay Bybee issued a series of four memorandums to Alberto Gonzales at the request of the White House.[8][9][10][11] These memorandums relieved the Executive Branch from detainee treatment obligations, for both al Qaeda and Taliban operatives, under the 3rd Geneva Convention, Common Article Three of the Geneva Convention and the United Nations Convention Against Torture. In effect, these memorandums allow President Bush to withdraw the United States from international treaties without the consent of the Congress; the Vesting Clause Thesis is energized. Further these memorandums insulated the Executive branch from Federal Law 18 USC Section 2441 (War Crimes Act) and Sections 2340 and 2340A concerning war crimes and torture. Taken as a whole, these memorandums lift virtually all international and federal legal barriers barring torture, clearing the way for “enhanced interrogations.”
Most notably, the August 1, 2002 memorandum signed by Jay Bybee defined torture such that the accompanying pain “must be of intensity akin to that which accompanies serious physical injury such as death or organ failure.” Further, “Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.” From this wording torturous interrogation techniques can be nuanced into the cruel, inhuman and degrading treatment category. This opened the flood gates for waterboarding. Daniel Marcus stated that obviously the August 1 memorandum was specifically “designed to legitimize waterboarding.”
The remaining four prongs of the strategy are implemented by conducting “extraordinary renditions” of suspected terrorists by the CIA.[12] This is the CIA practice of kidnapping suspected terrorists and taking them to secret “black sites” for interrogation in countries that are not squeamish about torture. The most common destinations are Egypt, Morocco, Syria and Jordan. The location and anonymity of these black sites allow the withholding of the writ of habeas corpus and right to legal representation. Judicial proceedings are conducted in secret military tribunals under control of Secretary of Defense. The CIA is able to hold detainees indefinitely, to conduct enhanced interrogations free from Judicial Branch meddling or exposure by the free press.
The August 2002 Memorandum remained in effect until June 2004 when the OLC withdrew it. The events that precipitates the unprecedented withdrawal is the departure of Jay Bybee to take a Federal appellate judgeship, the ousting of John C. Yoo by Attorney General Ashcroft and the appointment of Jack Goldsmith to head the OLC[13]. After Mr. Goldsmith takes office he reviews this memorandum, finds its logic deeply flawed and withdraws it at the cost of his position at the OLC[14]. The first prong is severely damaged, potentially exposing the Executive Branch to Judicial and Congressional oversight.
In June 2004 the Supreme Court hears three cases dealing with open-ended detainment, denial of legal representation, the right of habeas corpus and the use of military tribunals.[15] [16] [17] In all three cases the High Court ruled for the plaintiffs. The High Court restores the writ of habeas corpus to all detainees, affirms that persons cannot be held indefinitely and military tribunals must have Congressional approval.
Coming on the heels of the High Court’s decision the OLC renders the December 2004 Memorandum([18]) that supersedes the August 2002 memorandum in its entirety. The opening paragraph states: “Torture is abhorrent both to American law and values and to international norms.” The intent is to affirm the U.S. commitment to the United Nations Convention Against Torture[19] international agreement and to define the salient aspects of torture: “The critical issue is the degree of pain and suffering that the alleged torture intended to and actually did inflict upon the victim. The more intense, lasting or heinous the agony, the more likely it is to be torture.” The duration and repetition of torturous acts, as well as the degree of pain, suggests an illusive sliding scale. “Drawing distinctions among gradations of pain (for example, severe, mild, moderate, substantial, extreme, intense, excruciating, or agonizing) is obviously not an easy task, especially given the lack of any precise, objective scientific criteria for measuring pain.”
Taken together, the High Courts decisions, the withdrawal of the August 2002 memorandum and the issuance of the December 2004 memorandum bulldoze the legal foundation for enhanced interrogations. At this point the Bush Administration seems to have exhausted its judicial tactics. However with the resignation of Attorney General John Ashcroft and the appointment of Alberto Gonzales as Attorney General, their tactics evolved.
The OLC, under Alberto Gonzales, delivered a secret legal memorandum to the White House that is an expansive endorsement of the harshest interrogation techniques[20]; the opinion remains in effect, resurrecting the legal foundation for torture.
At the same time the President pursues a complementary legislative solution to secure the endorsement of Congress and nullify the High Court’s decision. From 2005 to the fall of 2006 the Republican controlled Congress, staring at a bold-faced Democratic take over, stumbles toward just such a solution by crafting three acts.
The first act, the “Department of Defense Appropriations Act, 2006” is enacted in December 2005. It contains language that attempts to prohibit the inhumane treatment of all prisoners and curb the ongoing detainee treatment excesses. President Bush signs the act into law and tethers a Presidential signing statement to it[21]. The wording of the statement is seen as an attempt by the President to exempt the Executive Branch from the sections of the act relating to detainee treatment. In a broader sense, the implication is the President is using signing statements as a line-item veto pen to scratch out sections of an act he does not agree with.
This has some Congressional members and the Constitutional law community throbbing like a hammered thumb. Senate Judiciary Committee Chairman Arlen Specter denounces President Bush’s use of signing statements as a “very blatant encroachment” on Congress’s constitutional ability to craft legislation.[22] The American Bar Association states that the issuances of presidential signing statements are contrary to the rule of law and our constitutional system of separation of powers.[23]
On the flip side, Professor Steven Calabresi, co-founder of the Federalist Society and member of Presidents Ronald Reagan and George H.W. Bush’s administrations, asserts that the legal footing for the issuance of signing statements lies in the unitary executive theory of presidential power. It follows that all agencies that exercise executive power can only do so by delegation from the President[24]. Further, signing statements serve to “publicize his [President’s] understanding of statutory and constitutional power” and to be a “directive to subordinates – source of guidance.” [25] However, both sides of the issue vehemently agree that a signing statement is not a get-out-of-jail card; the President must follow the law as written by Congress.
The second act, the National Defense Authorization Act for Fiscal Year 2006, is enacted in January 2006. This act contains the Graham-Levin and the McCain “Detainee Treatment Act of 2005” amendments. Taken together, these two amendments begin to construct a new legal footing for enhanced interrogations and provide hand-in-hand Congressional endorsement.
The Graham-Levin amendment contains two key provisions: The first provision denies the “application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba;” and the second prohibits the judicial review of “any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba.” This amendment nullifies the High Court’s decisions dealing with open-ended detainment and habeas corpus and prohibits the judicial review of the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien.
The McCain amendment states that torture is a violation of the Fifth, Eighth and Fourteenth Amendments to the Constitution. However, the amendment includes a trap door. It states: “No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.” Two very significant side effects occurred. First, the Army field manual is under Executive control allowing the Executive branch to rewrite the law by revising the manual without Congressional oversight. This constitutes an implicit Congressional delegation of authority to the Executive Branch to handle interrogations. And second, Daniel Marcus notes that the McCain amendment pertains to only detainees held by the Defense Department, not those held by the CIA; this lets the CIA off the hook allowing the practice of enhanced interrogations and the use of “black sites” to continue.
However, the requirement that interrogation techniques be codified only in the Army Field Manual, should not be dismissed as a simple political compromise. Codifying allows for review and review cracks the door open for oversight, even if the interrogation manual contains classified addendums.
The third act, the Military Commissions Act of 2006, is enacted in October 2006. This act completes the construction of the legal foundation for detainee treatment and enhanced interrogations. President Bush jubilantly states “Will it [the bill] allow the CIA program to Continue? This bill meets that test.”[26]
The act allows hearsay evidence, evidence obtained without a search warrant and testimony obtained under torturous or “contested” circumstances; it removes the Geneva Conventions as a source of defendant rights; the assertion of national security trumps introduction of relevant evidence and testimony; and specifies that the place of detainee confinement is under the control of the armed forces.
The act codifies military commissions to try the detainees, places the commissions under the control of the Department of Defense and strips federal courts of jurisdiction over pending as well as new cases. It labels detainees as “unlawful enemy combatants.” Once labeled the suspect is stripped of national origin, removed from federal judicial jurisdiction and placed under the Department of Defense, vaporizing due process, the 6th Amendment of the Constitution.
What is significant as well is what is absent. This act pertains to detainees under the control of the Defense Department only. The CIA is left unfettered by this act; as a result they can continue to handle detainees according to their own internal guidelines satisfying President Bush’s test.[27]
The Military Commissions Act of 2006 does not stand uncontested for long. In June of 2007, in a “déjà vu all over again moment”, the Supreme Court agreed to hear a habeas corpus appeal, Boumediene v. Bush.[28] The High Court is entertaining two questions: One, “Whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay;” and two, “Whether Petitioners’ indefinite military imprisonment as ‘enemy combatants’ is unlawful, requiring the grant of habeas relief.”[29] This case collides head on with the Bush Administration’s strategy for detainee treatment. If the High Court determines that the detainees are once again entitled to the writ of habeas corpus and the Military Commissions Act of 2006 does not provide a reasonable substitute, it is likely the law will be repealed, demolishing the legal foundation for open ended detainment of prisoners and shining a light into the dank cellar of the enhance interrogation.
It is wholly appropriate to consider why we need to institutionalize torture. In all the wars previous to the Iraq / Afghanistan War tens of thousands of Americans died. Most of the American dead were civilian soldiers. Yet we, as a nation, resisted the temptation to legalize the practice of torture. However, the attack on the World Trade Center has bumped our moral compass. This attack, which occurred on our home turf that killed some 3,000 civilians, tapped an enormous well of fear, vengeance and racism towards the Muslim world. This toxic emotional brew prevents us from appreciating the number of Iraqi civilian deaths that have occurred since coalition forces arrived in Iraq in March 2003, estimated at somewhere around 150,000 to 650,000.[30] [31] And these emotions allow us to dehumanize the suspected terrorist and justify the use of torture. General Irvine, an expert in military prisoner interrogations, stated that we as a nation make the “assertion the Al Qaeda is a race of supermen; immune to tradition interrogation techniques” when in reality “[they] feel the same pain we do.” Further, General Irvine cautions “I don’t think we should take too much counsel from our fears.” Remember that it was fear, vengeance and racism that sustained the Spanish Inquisition.
Copyright Stephan Fowler 2007. All rights reserved.
[1] Curtis A. Gradley, Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs: A Critique of the Vesting Clause Thesis”, Fordham University School of Law, Fordham Law Faculty Colloquium Papers, 2003, paper 3
[2] “Jane Mayer, The Hidden Power,” The New Yorker, July 2006
[3] John C. Yoo, Deputy Assistant Attorney General, Memorandum Opinion for Timothy Flanigan, The Deputy Counsel to the President, September 25, 2001
[4] The War Powers Act of 1973, Public Law 93-148, 93rd Congress H.J.Res. 542, November 7, 1973
[5] Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq, The White House, Office of the Press Secretary, October 2, 2002
[6] “Jane Mayer, Outsourcing Torture”, The New Yorker, February 14, 2005
[7] Telephone interview with Daniel Marcus, Law Professor, American University College of Law, General Council National Commission On Terrorist Attacks Upon the United States (9-11 Commission), January 17, 2008
[8] Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzales Counsel to the President, and William J. Haynes II General Counsel of the Department of Defense, RE: Application of Treaties and Laws to al Qaeda and Taliban Detainees, January 22, 2002
[9] Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzales Counsel to the President, RE: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949, February 7, 2002
[10] Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzales Counsel to the President, RE: Standards of Conduct Under 18 U.S.C section 2340-2340A, August 1, 2002
[11] John C. Yoo, Deputy Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, The Honorable Alberto R. Gonzales Counsel to the President The White House Washington, D.C., August 1, 2002
[12] “Dana Priest, CIA Holds Terror Suspects in Secret Prisons”, Washington Post, November 2, 2005
[13] Front Line Documentary, “Cheney’s Law”
[14] “Jeffrey Rosen, Conscience of a Conservative,” The New York Times, September 9, 2007
[15] Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
[16] Rasul v. Bush, 542 U.S. 466 (2004)
[17] Hamdan v. Rumsfeld, 126 S. Ct.2749 (2006)
[18] Daniel Levin, Acting Assistant Attorney General Office of Legal Counsel, Legal Standards Applicable under 18 U.S.C. section 230-2340A
[19] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
[20] “Scott Shane, David Johnston, David Risen, Secret Endorsement of Severe Interrogations”, New York Times, October 7, 2007
[21] President Bush, Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006
[22] “Charlie Savage, Senators Renew Cal for Hearings on Sighing Statements”, Boston Globe, June 16, 2006
[23] Neal Sonnet et al., Task Force on Presidential Signing Statements and the Separation of Powers Doctrine (American Bar Association
[24] Steven B. Calabresi, Daniel Lev , The Legal Significance of Presidential Signing Statements
[25] Telephone interview with Professor Steven Calabresi, November, 20, 2007
[26] President George W. Bush, Remarks on Signing The Military Commissions Act 2006
[27] “Siobhan Gorman, CIA Chief Says Three Were Waterboarded”, The Wall Street Journal, February 6, 2008
[28] “Linda Greenhouse, For Justices, Another Day on Detainees,” The New York Times, December 3, 2007
[29] Lakhdar Boumedine, et al, v. George W. Bush, et al, Brief for the Boumedine Prisoners, Supreme Court of the United States
[30] “John Hechinger, WHO Study Puts Iraqis’ Death Toll at 151,000”, Wall Street Journal, January 10, 2008
[31] “David Brown, Study Claims Iraq’s ‘Excess’ Death Toll Has Reached 655,000”, Washington Post, October 11, 2006
Copyright Stephan Fowler 2007. All rights reserved.
The Bush Administration’s strategy behind this maneuvering consists of five prongs. First and foremost, get the required legal foundation to allow torturous interrogations. Without a legal foundation, the Executive branch risks running afoul of the Constitution. Second, conduct the interrogations in secret, outside the jurisdiction of the federal court system, in countries that are not squeamish about torture. Third, detain prisoners for an indefinite amount of time. (Withhold the Constitutional guarantee of the writ of habeas corpus, denying the detainee the opportunity to challenge the validity of the charges held against him and the appropriateness of the detainment.) Fourth, have complete control over the judicial proceedings to allow for quick convictions that support a political agenda. And fifth, do not allow the free press access to detainees.
President Bush derives his power to direct torturous enhanced interrogations from Article 2 of the Constitution, augment by two interpretations of Article 2 that argue for expansive presidential powers. Article 2, Section 1, known as the “Vesting Clause”, states: “The executive power shall be vested in President of the United States. Section 2 states: “The President shall be Commander in Chief of the Army and Navy of the United States…He shall have Power, by and with the Advice and Consent of the Senate to make Treaties…” Article 2 is simple, elegant, but hauntingly vague. Woefully absent is the definition of Executive Power and an illustrative or exhaustive enumeration of presidential powers. This lack of specificity provides fertile ground for the growth of arguments that attempt to define the reach of presidential power. The Bush Administration subscribes to two such complimentary arguments that promote expansive presidential powers, the “Vesting Clause Thesis” and the “Unitary Executive Theory”.
The Vesting Clause thesis claims that the “Vesting Clause” implicitly grants the President an array of residual powers not specified in Article 2. The notion is that the founding fathers intended the Constitution to reflect a conception of what is “naturally” and “essentially” within executive power.[1] Accordingly, Article 2 grants the President all powers that are in their nature executive and all powers not explicitly delegated to the other two branches. Further, it endows the President to be the sole organ for the United States in matters of foreign policy; it allows the President to withdraw from treaties without Congressional consent and it empowers the President, as Command in Chief, to commit U.S. troops without Congressional advice or consent.
The unitary executive theory speaks to the structure and governance of the Executive branch. It postulates that the Constitution creates a “hierarchical, unified executive department under the direct control of the President.”[2] In other words, the president is vested with the singular power of decision making for the entire Executive Branch. President Bush pledged his allegiance to this theory when he stated: “I am the Decider and I will decide what is best” to fend off Congressional pressure to dismiss Secretary of Defense Donald Rumsfeld.
Together these arguments push the Constitutional envelope, expanding the President’s foreign policy powers and the President’s control over the Executive branch. However since both the unitary executive theory and the vesting clause thesis are interpretations of executive power, not explicitly mentioned in the Constitution, legal underpinnings must be put in place to implement them.
Enter the Office of Legal Counsel (OLC), directly under the U.S. Attorney General. The OLC is the sanctioned oracle that interrupts the U.S. Constitution for the Judicial and Executive branches of government. The strength of the OLC opinions, rendered in memorandum, cannot be understated. Only the President and the Attorney General can override an OLC opinion. If the President requests an OLC opinion and acts accordingly he is acting under good faith, constitutionally speaking, avoiding the wrath of Congress and the Judiciary.
In 2001, the key OLC lawyers were Jay Bybee, Assistant Attorney General and John C. Yoo, Deputy Assistant Attorney General. Their views on presidential power and the conduct of the war on terror mirror the Bush Administration’s making them the White House’s go-to men. Yoo and Bybee played a key role in engineering the legal justifications, which resulted in a tacit endorsement by the OLC, for implementing the unitary executive theory and vesting clause thesis. The September 25 OLC memorandum[3] , signed by John Yoo, concludes that the President has the plenary constitutional power to direct military action against any organization that represents a threat to the security of the United States. Further, neither the War Powers Resolution[4] nor the Iraq Joint Resolution[5] “can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response. These decisions, under our Constitution, are for the President alone to make.” The Vesting Clause Thesis has taken form.
Fundamentally the September 25 OLC Memorandum pours the legal footing to support the foundation of a radically new detainee treatment and interrogation policy that incorporates torture. This dramatic shift, labeled the “New Paradigm”, was opined in a January 2002 memorandum to President Bush by Alberto Gonzales, White House Counsel. The New Paradigm places a high premium on “the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.” [6] The New Paradigm reflected the fear Americans felt the morning after 9/11; the fear that, as Daniel Marcus, General Counsel for the 9-11 Commission, put it, “September 11 was only installment number one.” [7]
The crucial first prong of the Administration’s strategy is put in place by August 2002. The OLC, under the leadership of Jay Bybee issued a series of four memorandums to Alberto Gonzales at the request of the White House.[8][9][10][11] These memorandums relieved the Executive Branch from detainee treatment obligations, for both al Qaeda and Taliban operatives, under the 3rd Geneva Convention, Common Article Three of the Geneva Convention and the United Nations Convention Against Torture. In effect, these memorandums allow President Bush to withdraw the United States from international treaties without the consent of the Congress; the Vesting Clause Thesis is energized. Further these memorandums insulated the Executive branch from Federal Law 18 USC Section 2441 (War Crimes Act) and Sections 2340 and 2340A concerning war crimes and torture. Taken as a whole, these memorandums lift virtually all international and federal legal barriers barring torture, clearing the way for “enhanced interrogations.”
Most notably, the August 1, 2002 memorandum signed by Jay Bybee defined torture such that the accompanying pain “must be of intensity akin to that which accompanies serious physical injury such as death or organ failure.” Further, “Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.” From this wording torturous interrogation techniques can be nuanced into the cruel, inhuman and degrading treatment category. This opened the flood gates for waterboarding. Daniel Marcus stated that obviously the August 1 memorandum was specifically “designed to legitimize waterboarding.”
The remaining four prongs of the strategy are implemented by conducting “extraordinary renditions” of suspected terrorists by the CIA.[12] This is the CIA practice of kidnapping suspected terrorists and taking them to secret “black sites” for interrogation in countries that are not squeamish about torture. The most common destinations are Egypt, Morocco, Syria and Jordan. The location and anonymity of these black sites allow the withholding of the writ of habeas corpus and right to legal representation. Judicial proceedings are conducted in secret military tribunals under control of Secretary of Defense. The CIA is able to hold detainees indefinitely, to conduct enhanced interrogations free from Judicial Branch meddling or exposure by the free press.
The August 2002 Memorandum remained in effect until June 2004 when the OLC withdrew it. The events that precipitates the unprecedented withdrawal is the departure of Jay Bybee to take a Federal appellate judgeship, the ousting of John C. Yoo by Attorney General Ashcroft and the appointment of Jack Goldsmith to head the OLC[13]. After Mr. Goldsmith takes office he reviews this memorandum, finds its logic deeply flawed and withdraws it at the cost of his position at the OLC[14]. The first prong is severely damaged, potentially exposing the Executive Branch to Judicial and Congressional oversight.
In June 2004 the Supreme Court hears three cases dealing with open-ended detainment, denial of legal representation, the right of habeas corpus and the use of military tribunals.[15] [16] [17] In all three cases the High Court ruled for the plaintiffs. The High Court restores the writ of habeas corpus to all detainees, affirms that persons cannot be held indefinitely and military tribunals must have Congressional approval.
Coming on the heels of the High Court’s decision the OLC renders the December 2004 Memorandum([18]) that supersedes the August 2002 memorandum in its entirety. The opening paragraph states: “Torture is abhorrent both to American law and values and to international norms.” The intent is to affirm the U.S. commitment to the United Nations Convention Against Torture[19] international agreement and to define the salient aspects of torture: “The critical issue is the degree of pain and suffering that the alleged torture intended to and actually did inflict upon the victim. The more intense, lasting or heinous the agony, the more likely it is to be torture.” The duration and repetition of torturous acts, as well as the degree of pain, suggests an illusive sliding scale. “Drawing distinctions among gradations of pain (for example, severe, mild, moderate, substantial, extreme, intense, excruciating, or agonizing) is obviously not an easy task, especially given the lack of any precise, objective scientific criteria for measuring pain.”
Taken together, the High Courts decisions, the withdrawal of the August 2002 memorandum and the issuance of the December 2004 memorandum bulldoze the legal foundation for enhanced interrogations. At this point the Bush Administration seems to have exhausted its judicial tactics. However with the resignation of Attorney General John Ashcroft and the appointment of Alberto Gonzales as Attorney General, their tactics evolved.
The OLC, under Alberto Gonzales, delivered a secret legal memorandum to the White House that is an expansive endorsement of the harshest interrogation techniques[20]; the opinion remains in effect, resurrecting the legal foundation for torture.
At the same time the President pursues a complementary legislative solution to secure the endorsement of Congress and nullify the High Court’s decision. From 2005 to the fall of 2006 the Republican controlled Congress, staring at a bold-faced Democratic take over, stumbles toward just such a solution by crafting three acts.
The first act, the “Department of Defense Appropriations Act, 2006” is enacted in December 2005. It contains language that attempts to prohibit the inhumane treatment of all prisoners and curb the ongoing detainee treatment excesses. President Bush signs the act into law and tethers a Presidential signing statement to it[21]. The wording of the statement is seen as an attempt by the President to exempt the Executive Branch from the sections of the act relating to detainee treatment. In a broader sense, the implication is the President is using signing statements as a line-item veto pen to scratch out sections of an act he does not agree with.
This has some Congressional members and the Constitutional law community throbbing like a hammered thumb. Senate Judiciary Committee Chairman Arlen Specter denounces President Bush’s use of signing statements as a “very blatant encroachment” on Congress’s constitutional ability to craft legislation.[22] The American Bar Association states that the issuances of presidential signing statements are contrary to the rule of law and our constitutional system of separation of powers.[23]
On the flip side, Professor Steven Calabresi, co-founder of the Federalist Society and member of Presidents Ronald Reagan and George H.W. Bush’s administrations, asserts that the legal footing for the issuance of signing statements lies in the unitary executive theory of presidential power. It follows that all agencies that exercise executive power can only do so by delegation from the President[24]. Further, signing statements serve to “publicize his [President’s] understanding of statutory and constitutional power” and to be a “directive to subordinates – source of guidance.” [25] However, both sides of the issue vehemently agree that a signing statement is not a get-out-of-jail card; the President must follow the law as written by Congress.
The second act, the National Defense Authorization Act for Fiscal Year 2006, is enacted in January 2006. This act contains the Graham-Levin and the McCain “Detainee Treatment Act of 2005” amendments. Taken together, these two amendments begin to construct a new legal footing for enhanced interrogations and provide hand-in-hand Congressional endorsement.
The Graham-Levin amendment contains two key provisions: The first provision denies the “application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba;” and the second prohibits the judicial review of “any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba.” This amendment nullifies the High Court’s decisions dealing with open-ended detainment and habeas corpus and prohibits the judicial review of the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien.
The McCain amendment states that torture is a violation of the Fifth, Eighth and Fourteenth Amendments to the Constitution. However, the amendment includes a trap door. It states: “No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.” Two very significant side effects occurred. First, the Army field manual is under Executive control allowing the Executive branch to rewrite the law by revising the manual without Congressional oversight. This constitutes an implicit Congressional delegation of authority to the Executive Branch to handle interrogations. And second, Daniel Marcus notes that the McCain amendment pertains to only detainees held by the Defense Department, not those held by the CIA; this lets the CIA off the hook allowing the practice of enhanced interrogations and the use of “black sites” to continue.
However, the requirement that interrogation techniques be codified only in the Army Field Manual, should not be dismissed as a simple political compromise. Codifying allows for review and review cracks the door open for oversight, even if the interrogation manual contains classified addendums.
The third act, the Military Commissions Act of 2006, is enacted in October 2006. This act completes the construction of the legal foundation for detainee treatment and enhanced interrogations. President Bush jubilantly states “Will it [the bill] allow the CIA program to Continue? This bill meets that test.”[26]
The act allows hearsay evidence, evidence obtained without a search warrant and testimony obtained under torturous or “contested” circumstances; it removes the Geneva Conventions as a source of defendant rights; the assertion of national security trumps introduction of relevant evidence and testimony; and specifies that the place of detainee confinement is under the control of the armed forces.
The act codifies military commissions to try the detainees, places the commissions under the control of the Department of Defense and strips federal courts of jurisdiction over pending as well as new cases. It labels detainees as “unlawful enemy combatants.” Once labeled the suspect is stripped of national origin, removed from federal judicial jurisdiction and placed under the Department of Defense, vaporizing due process, the 6th Amendment of the Constitution.
What is significant as well is what is absent. This act pertains to detainees under the control of the Defense Department only. The CIA is left unfettered by this act; as a result they can continue to handle detainees according to their own internal guidelines satisfying President Bush’s test.[27]
The Military Commissions Act of 2006 does not stand uncontested for long. In June of 2007, in a “déjà vu all over again moment”, the Supreme Court agreed to hear a habeas corpus appeal, Boumediene v. Bush.[28] The High Court is entertaining two questions: One, “Whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay;” and two, “Whether Petitioners’ indefinite military imprisonment as ‘enemy combatants’ is unlawful, requiring the grant of habeas relief.”[29] This case collides head on with the Bush Administration’s strategy for detainee treatment. If the High Court determines that the detainees are once again entitled to the writ of habeas corpus and the Military Commissions Act of 2006 does not provide a reasonable substitute, it is likely the law will be repealed, demolishing the legal foundation for open ended detainment of prisoners and shining a light into the dank cellar of the enhance interrogation.
It is wholly appropriate to consider why we need to institutionalize torture. In all the wars previous to the Iraq / Afghanistan War tens of thousands of Americans died. Most of the American dead were civilian soldiers. Yet we, as a nation, resisted the temptation to legalize the practice of torture. However, the attack on the World Trade Center has bumped our moral compass. This attack, which occurred on our home turf that killed some 3,000 civilians, tapped an enormous well of fear, vengeance and racism towards the Muslim world. This toxic emotional brew prevents us from appreciating the number of Iraqi civilian deaths that have occurred since coalition forces arrived in Iraq in March 2003, estimated at somewhere around 150,000 to 650,000.[30] [31] And these emotions allow us to dehumanize the suspected terrorist and justify the use of torture. General Irvine, an expert in military prisoner interrogations, stated that we as a nation make the “assertion the Al Qaeda is a race of supermen; immune to tradition interrogation techniques” when in reality “[they] feel the same pain we do.” Further, General Irvine cautions “I don’t think we should take too much counsel from our fears.” Remember that it was fear, vengeance and racism that sustained the Spanish Inquisition.
Copyright Stephan Fowler 2007. All rights reserved.
[1] Curtis A. Gradley, Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs: A Critique of the Vesting Clause Thesis”, Fordham University School of Law, Fordham Law Faculty Colloquium Papers, 2003, paper 3
[2] “Jane Mayer, The Hidden Power,” The New Yorker, July 2006
[3] John C. Yoo, Deputy Assistant Attorney General, Memorandum Opinion for Timothy Flanigan, The Deputy Counsel to the President, September 25, 2001
[4] The War Powers Act of 1973, Public Law 93-148, 93rd Congress H.J.Res. 542, November 7, 1973
[5] Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq, The White House, Office of the Press Secretary, October 2, 2002
[6] “Jane Mayer, Outsourcing Torture”, The New Yorker, February 14, 2005
[7] Telephone interview with Daniel Marcus, Law Professor, American University College of Law, General Council National Commission On Terrorist Attacks Upon the United States (9-11 Commission), January 17, 2008
[8] Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzales Counsel to the President, and William J. Haynes II General Counsel of the Department of Defense, RE: Application of Treaties and Laws to al Qaeda and Taliban Detainees, January 22, 2002
[9] Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzales Counsel to the President, RE: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949, February 7, 2002
[10] Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzales Counsel to the President, RE: Standards of Conduct Under 18 U.S.C section 2340-2340A, August 1, 2002
[11] John C. Yoo, Deputy Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, The Honorable Alberto R. Gonzales Counsel to the President The White House Washington, D.C., August 1, 2002
[12] “Dana Priest, CIA Holds Terror Suspects in Secret Prisons”, Washington Post, November 2, 2005
[13] Front Line Documentary, “Cheney’s Law”
[14] “Jeffrey Rosen, Conscience of a Conservative,” The New York Times, September 9, 2007
[15] Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
[16] Rasul v. Bush, 542 U.S. 466 (2004)
[17] Hamdan v. Rumsfeld, 126 S. Ct.2749 (2006)
[18] Daniel Levin, Acting Assistant Attorney General Office of Legal Counsel, Legal Standards Applicable under 18 U.S.C. section 230-2340A
[19] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
[20] “Scott Shane, David Johnston, David Risen, Secret Endorsement of Severe Interrogations”, New York Times, October 7, 2007
[21] President Bush, Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006
[22] “Charlie Savage, Senators Renew Cal for Hearings on Sighing Statements”, Boston Globe, June 16, 2006
[23] Neal Sonnet et al., Task Force on Presidential Signing Statements and the Separation of Powers Doctrine (American Bar Association
[24] Steven B. Calabresi, Daniel Lev , The Legal Significance of Presidential Signing Statements
[25] Telephone interview with Professor Steven Calabresi, November, 20, 2007
[26] President George W. Bush, Remarks on Signing The Military Commissions Act 2006
[27] “Siobhan Gorman, CIA Chief Says Three Were Waterboarded”, The Wall Street Journal, February 6, 2008
[28] “Linda Greenhouse, For Justices, Another Day on Detainees,” The New York Times, December 3, 2007
[29] Lakhdar Boumedine, et al, v. George W. Bush, et al, Brief for the Boumedine Prisoners, Supreme Court of the United States
[30] “John Hechinger, WHO Study Puts Iraqis’ Death Toll at 151,000”, Wall Street Journal, January 10, 2008
[31] “David Brown, Study Claims Iraq’s ‘Excess’ Death Toll Has Reached 655,000”, Washington Post, October 11, 2006
Copyright Stephan Fowler 2007. All rights reserved.
Art of the Spanish Inquisition, Part 1
A prisoner is brought into a room under guard. His eyes fixate on the wooden ramp. The ramp is wet, soaked with water. Droplets fall from its edges and puddle on the floor. The prisoner knows the horror is coming; it is just a moment away. The prisoner flails, dancing the dance of the terrified. The guards subdue him, force him down, with his head at the foot of the ramp and bind him tight. The guards are journeymen and do their work well. The man’s eyes are wide, wild and dart about, focusing on nothing, trying to avoid the stare of Horror that has found a home in the room.
The prisoner waits for the interrogator. The interrogator’s tools are simple and few: two pieces of cloth (one the size of a small washcloth; the other the size of a bath towel), an endless supply of water, a fluency in the man’s language and a relentless probing mind. The interrogator enters and approaches the man.
The prisoner thrashes his head about – he knows what is coming. He is desperately trying to postpone the coming horror, if only for a few moments. The guards grab his head and still its movement. The prisoner clenches his jaws with the force of life. He must stave off the violence that will be perpetrated on him if only a minute longer.
The prisoner’s tactic works for a few moments. The guards clamp his nose shut and probe the nerve bundle along his lower molars with penetrating, educated thumbs. The prisoner burns through the breath he had saved at the start of this insult. Finally the pain from the probing thumbs, combined with oxygen starvation, weakens his resolve. At that instant the interrogator stuffs the small soaked washrag into his mouth, the guards let loose of his nose and the man’s chest heaves. His nasal passages don’t allow the immediate passage of oxygen that his body demands; his chest heaves again and again in rapid succession in an attempt to inhale enough sweet air.
The interrogator places a soaked towel over the man’s face and begins to pour water over it; the towel allows the water to linger, sealing off his head like a Khmer Rouge execution garbage bag. The sensation of being under a surging black wave washes over the man. However, air is not trapped in his nose, sealing off his lungs, as it would be if he plunged into the wave. Instead, water trickles down his nasal passages, like rain flooding a gopher hole, tickling his gag reflex. Reflexively the man’s chest compresses and heaves, sucking in more water. His lungs burn and convulse, in an attempt to expel the water. Water mixed with snot and vomit explodes from his nose. Horror embraces the man; he soils himself. The smell of excrement and vomit floods the room.
The interrogator’s nose twitches at the smell of Horror’s effect as he pours more water. The prisoner fights it off the best he can. Insidiously, the interrogator has allowed a portion of the washrag to protrude from the man’s mouth – a wick if you will. The wick is soon saturated and water travels into the man’s mouth, inundating the bundled washrag. The prisoner struggles; the restraints bite and break his skin. The prisoner is desperate for air. His chest heaves, inhaling more water and vomit. His lungs cannot eject the vomit and water fast enough; the vomit chemically burns his lung; water borne bacteria nests deep in his lungs inviting pneumonia; his arrhythmic heart beat hints at cardiac arrest; and the water blocks the exchange of oxygen for carbon dioxide withering his gray matter as a result of oxygen starvation – the gray matter that may host the sought after information. [i]
The prisoner is drowning, teetering on the brink of the Great Abyss, under the gaze of his tormentors. Death tugs on the prisoner and whispers: “Its ok just lean forward.” Maybe thirty seconds has passed since the prisoner danced the dance of the terrified.
The interrogator asks a question.[ii]
[i] Telephone interview with Dr. Matt Topham M.D.; pulmonary researcher; University of Utah School of Medicine; provided medical aspects of drowning, December 12, 2007
[ii] Interview with General David R. Irvine, USA (Ret.); taught military law and interrogation techniques for the Sixth United States Army Intelligence School; reviewed waterboarding passage and verified technical aspects, November 11, 2007
Copyright Stephan Fowler 2007. All rights reserved.
The prisoner waits for the interrogator. The interrogator’s tools are simple and few: two pieces of cloth (one the size of a small washcloth; the other the size of a bath towel), an endless supply of water, a fluency in the man’s language and a relentless probing mind. The interrogator enters and approaches the man.
The prisoner thrashes his head about – he knows what is coming. He is desperately trying to postpone the coming horror, if only for a few moments. The guards grab his head and still its movement. The prisoner clenches his jaws with the force of life. He must stave off the violence that will be perpetrated on him if only a minute longer.
The prisoner’s tactic works for a few moments. The guards clamp his nose shut and probe the nerve bundle along his lower molars with penetrating, educated thumbs. The prisoner burns through the breath he had saved at the start of this insult. Finally the pain from the probing thumbs, combined with oxygen starvation, weakens his resolve. At that instant the interrogator stuffs the small soaked washrag into his mouth, the guards let loose of his nose and the man’s chest heaves. His nasal passages don’t allow the immediate passage of oxygen that his body demands; his chest heaves again and again in rapid succession in an attempt to inhale enough sweet air.
The interrogator places a soaked towel over the man’s face and begins to pour water over it; the towel allows the water to linger, sealing off his head like a Khmer Rouge execution garbage bag. The sensation of being under a surging black wave washes over the man. However, air is not trapped in his nose, sealing off his lungs, as it would be if he plunged into the wave. Instead, water trickles down his nasal passages, like rain flooding a gopher hole, tickling his gag reflex. Reflexively the man’s chest compresses and heaves, sucking in more water. His lungs burn and convulse, in an attempt to expel the water. Water mixed with snot and vomit explodes from his nose. Horror embraces the man; he soils himself. The smell of excrement and vomit floods the room.
The interrogator’s nose twitches at the smell of Horror’s effect as he pours more water. The prisoner fights it off the best he can. Insidiously, the interrogator has allowed a portion of the washrag to protrude from the man’s mouth – a wick if you will. The wick is soon saturated and water travels into the man’s mouth, inundating the bundled washrag. The prisoner struggles; the restraints bite and break his skin. The prisoner is desperate for air. His chest heaves, inhaling more water and vomit. His lungs cannot eject the vomit and water fast enough; the vomit chemically burns his lung; water borne bacteria nests deep in his lungs inviting pneumonia; his arrhythmic heart beat hints at cardiac arrest; and the water blocks the exchange of oxygen for carbon dioxide withering his gray matter as a result of oxygen starvation – the gray matter that may host the sought after information. [i]
The prisoner is drowning, teetering on the brink of the Great Abyss, under the gaze of his tormentors. Death tugs on the prisoner and whispers: “Its ok just lean forward.” Maybe thirty seconds has passed since the prisoner danced the dance of the terrified.
The interrogator asks a question.[ii]
[i] Telephone interview with Dr. Matt Topham M.D.; pulmonary researcher; University of Utah School of Medicine; provided medical aspects of drowning, December 12, 2007
[ii] Interview with General David R. Irvine, USA (Ret.); taught military law and interrogation techniques for the Sixth United States Army Intelligence School; reviewed waterboarding passage and verified technical aspects, November 11, 2007
Copyright Stephan Fowler 2007. All rights reserved.
Tuesday, April 1, 2008
Conversation in the Rain
The man and I stood in the cold September rain and watched Yellowstone’s elk rut. He is a man in his late fifties with the roadmap of experience plain on his face. He wore a camouflage coat with hands stuffed in its pockets, his head crowned with a ball cap. On the front of the ball cap was a small badge with crossed arrows. The badge declared his membership in an exclusive club: the U.S. Army’s Special Forces.
“Special Forces?” I asked. “An old S.F.er.” the man replied. “When?” I asked. “69 to 75,” he replied. He ran headlong into what I tried to avoid - the Vietnam War. He enlisted, serving in the U.S. Army’s 101st Airborne and later in the Special Forces. He was an A Team medic and a demolitions expert. He talked about how satisfying it was to rescue downed pilots, about incursions into Cambodia, but spoke little about direct combat. He was in the tall grass.
During my brief military service I rubbed elbows with men from this club. Many were badly scarred. Some beckoned to ghosts for forgiveness, some opened their veins to narcotics and others slashed their veins for relief. Men in the bloom of their twenties subjected to the consequences of dubious political choices. This is how it was then, this is how it is now, and this is how it should be. War should scar, scar horribly.
We watched an elk harem mill about in the soft rain and I listened. He talked about being approached by Blackwater. He has the resume Blackwater wants: A demonstrated history of being long and tall in the art of war. A salary of $650.00 a day was offered with a fringe benefit of immunity from criminal prosecution. This would make him a bulletproof rock star sporting the Blackwater logo in place of the American flag. I told the man that Blackwater personnel had just killed seventeen Iraqi civilians. He held my eyes with his for a moment and asked, “Lit them up?” The question lingered, hanging in the air like the white vapor cloud from his breath. He turned and stared a 1,000 yards off. After a moment he mentioned he was flattered by Blackwater’s offer but declined it.
Abruptly an enraged bull elk exploded from the timber and raked the ground with his horns. We were drop-jawed stunned. After a moment, he told me of a friend who works for Blackwater. The friend was assigned to a unit guarding Iraq’s U.S. administrator, Mr. Paul Bremer, which foiled an assassination attempt in December of 2003. The man insisted that this was the watershed moment for Blackwater leading to a 21 million dollar contract the following August. The funding faucet was turned, to date upwards of a billion dollars has gushed into Blackwater.
Darkness encroached, we shook hands, and the man called me “Bro”. I walked away wondering about Mr. Rumsfeld’s strategy of pairing a small all-volunteer military with corporate militias. This strategy seems very effective in hiding the scars of war from the voting public. Without a military draft it is only the odd occasion that you run into someone touched by war. Has the absence of a military draft sterilized this War? The military draft, for all its faults, held up the scar of war for all to see. That’s how it should be. The scars of war should not be hidden, locked in political or corporate faults or inflicted only on volunteers. We need the draft back to make us realize the consequences of our vote.
Copyright Stephan Fowler 2007. All rights reserved.
“Special Forces?” I asked. “An old S.F.er.” the man replied. “When?” I asked. “69 to 75,” he replied. He ran headlong into what I tried to avoid - the Vietnam War. He enlisted, serving in the U.S. Army’s 101st Airborne and later in the Special Forces. He was an A Team medic and a demolitions expert. He talked about how satisfying it was to rescue downed pilots, about incursions into Cambodia, but spoke little about direct combat. He was in the tall grass.
During my brief military service I rubbed elbows with men from this club. Many were badly scarred. Some beckoned to ghosts for forgiveness, some opened their veins to narcotics and others slashed their veins for relief. Men in the bloom of their twenties subjected to the consequences of dubious political choices. This is how it was then, this is how it is now, and this is how it should be. War should scar, scar horribly.
We watched an elk harem mill about in the soft rain and I listened. He talked about being approached by Blackwater. He has the resume Blackwater wants: A demonstrated history of being long and tall in the art of war. A salary of $650.00 a day was offered with a fringe benefit of immunity from criminal prosecution. This would make him a bulletproof rock star sporting the Blackwater logo in place of the American flag. I told the man that Blackwater personnel had just killed seventeen Iraqi civilians. He held my eyes with his for a moment and asked, “Lit them up?” The question lingered, hanging in the air like the white vapor cloud from his breath. He turned and stared a 1,000 yards off. After a moment he mentioned he was flattered by Blackwater’s offer but declined it.
Abruptly an enraged bull elk exploded from the timber and raked the ground with his horns. We were drop-jawed stunned. After a moment, he told me of a friend who works for Blackwater. The friend was assigned to a unit guarding Iraq’s U.S. administrator, Mr. Paul Bremer, which foiled an assassination attempt in December of 2003. The man insisted that this was the watershed moment for Blackwater leading to a 21 million dollar contract the following August. The funding faucet was turned, to date upwards of a billion dollars has gushed into Blackwater.
Darkness encroached, we shook hands, and the man called me “Bro”. I walked away wondering about Mr. Rumsfeld’s strategy of pairing a small all-volunteer military with corporate militias. This strategy seems very effective in hiding the scars of war from the voting public. Without a military draft it is only the odd occasion that you run into someone touched by war. Has the absence of a military draft sterilized this War? The military draft, for all its faults, held up the scar of war for all to see. That’s how it should be. The scars of war should not be hidden, locked in political or corporate faults or inflicted only on volunteers. We need the draft back to make us realize the consequences of our vote.
Copyright Stephan Fowler 2007. All rights reserved.
For Want of a Job
A man died not far from me. A man with brown skin and not enough warm cloths. I in my world of comfort and self satisfaction, he in his world of hypothermia and exhaustion. He must have watched me cook my evening meal, warmed by my camp fire after and comforted by the companionship of my two quail hunting dogs after a long days hunt. He was devoid of warm companionship; he had only the cold, greedy Sonoran desert night that shop lifted his precious body heat. The man died of hypothermia that night ending his desperate quest to fulfill his chosen role of husband, father and son. I did not know him and was totally unaware of his presence. The only clue I had was that sometime during the early morning a half dozen U.S. Border Patrol SUVs converge onto the camp ground where I was staying. The SUVs arrived with their head lights on full beam bursting with green clad agents, wielding mammoth flashlights whose beams frantically slashed through the desert night like searchlights over Baghdad.
It did not take long for the searchlights to find their query: the man, a father, a son, an illegal immigrant, who tried to honor his commitment. That’s right, the man, this man tried and died from the trying. The trying to find and do a job most Americans will not do. The word “try” seems so weak and flimsy for what this man attempted. I wish I could think of another word. Perhaps the real meaning of the word can only be taken from context – this man, his struggle and his death.
The man’s focus and priorities were set and were unalterable. He must provide for those to whom he made a commitment to. Scratching a living from the poverty stricken soil of Latin America was slowly strangling his family. The conspiracy of corrupt politics and greed forced this man to the road, the road that ultimately robbed him of his life. It is ironic that the man died for want of warmth in the land of plenty.
Why didn’t the man come and sit by my fire? I am clueless. Maybe he thought I was a vigilante, one of Douglas Arizona’s Minutemen, or worse yet a coyote, a trafficker of illegal immigrants; or maybe he simply closed his eyes and was seduced by hypothermia’s lullaby, and chased dreams of home and hearth that that drifted away like the smoke from my campfire. How many others were caught in the same struggle that night? I have often wondered. Perhaps the dark of night and the brilliance of my campfire is an iconic metaphor. We who live in the light of plenty simply cannot see into the darkness of poverty.
What would I have done if this shivering man approached me out of the darkness? In my heart of hearts I am afraid to answer. Would my sense of humanity prevailed, allowing me to invite the man into the warmth or would my fear of the unknown spurred me to push the man back into the darkness? I honestly do not know.
Earlier that evening I found where a different bone-chilled someone had burnt a roll of toilet paper in one of the camp ground outhouses. At the time I was incensed. I thought it was the work of some vandal. Reflecting back, I now realize the outhouse and the roll of burning toilet paper provide shelter and warmth, albeit choking warmth with the door closed for concealment. Picture it, a person huddled in a blackened outhouse, below freezing temperatures outside, with hands and body shaking from the cold, snuggled up to a roll of burning toilet paper to elude both the U.S. Border Patrol and Death’s messenger, hypothermia. The person dared not open the door for fear of detection by either pursuer. The person’s eyes burned and lungs revolted from the caustic smoke, but there was just enough darkness and warmth to evade his pursuers. Before the morning sun arrived this person was on his feet heading North in pursuit of a job, a job that Americans will not do. It is this job that will allow this person to keep the wolves of poverty from devouring his family.
During the next day’s quail hunt I repeatedly stumbled across stashes of empty gallon water bottles, cold fire rings, and sometimes small back packs. Always the water bottles were empty. Always the fire rings contained the remains of the previous meager meal; a burnt out soup can, melted plastic bread bags, and once in a while a Coke can. Still the contents of the abandoned back packs haunt me still. The backpacks usually contained just a single change of street clothes, including underwear and socks. The street clothes, the underwear are intimate reminders of another living breathing human’s presence. Why were the backpacks abandoned? Were these people being chased by the U. S. Border Patrol? Had physical exhaustion burdened these people so heavily that they had to dump all excess baggage just to place one foot in front of the other? Was the coyote’s vehicle so packed with humanity that there was no room for frivolous items such as these? I can only speculate. The discarded backpacks seem to speak to me of desperate hope and flight. I have never known such desperation, not ever.
On the drive home, I was funneled through a U.S. Border Patrol checkpoint just outside of Patagonia, Arizona. Two agents approached, one on either side of my Jeep. Seeing that I and my dogs were the sole occupants and fit the right profile they waved us through the checkpoint with a smile and a nod. It is this smile and nod that confirms my citizenship in the land of plenty. It is this smile and nod that the illegal immigrant yearns for; the smile and nod that would confirm the legitimacy of their presence and allow them to lift their families from dirt scratch poverty. It is this smile and nod that the illegal immigrant cannot have.
Copyright Stephan Fowler 2008. All rights reserved.
It did not take long for the searchlights to find their query: the man, a father, a son, an illegal immigrant, who tried to honor his commitment. That’s right, the man, this man tried and died from the trying. The trying to find and do a job most Americans will not do. The word “try” seems so weak and flimsy for what this man attempted. I wish I could think of another word. Perhaps the real meaning of the word can only be taken from context – this man, his struggle and his death.
The man’s focus and priorities were set and were unalterable. He must provide for those to whom he made a commitment to. Scratching a living from the poverty stricken soil of Latin America was slowly strangling his family. The conspiracy of corrupt politics and greed forced this man to the road, the road that ultimately robbed him of his life. It is ironic that the man died for want of warmth in the land of plenty.
Why didn’t the man come and sit by my fire? I am clueless. Maybe he thought I was a vigilante, one of Douglas Arizona’s Minutemen, or worse yet a coyote, a trafficker of illegal immigrants; or maybe he simply closed his eyes and was seduced by hypothermia’s lullaby, and chased dreams of home and hearth that that drifted away like the smoke from my campfire. How many others were caught in the same struggle that night? I have often wondered. Perhaps the dark of night and the brilliance of my campfire is an iconic metaphor. We who live in the light of plenty simply cannot see into the darkness of poverty.
What would I have done if this shivering man approached me out of the darkness? In my heart of hearts I am afraid to answer. Would my sense of humanity prevailed, allowing me to invite the man into the warmth or would my fear of the unknown spurred me to push the man back into the darkness? I honestly do not know.
Earlier that evening I found where a different bone-chilled someone had burnt a roll of toilet paper in one of the camp ground outhouses. At the time I was incensed. I thought it was the work of some vandal. Reflecting back, I now realize the outhouse and the roll of burning toilet paper provide shelter and warmth, albeit choking warmth with the door closed for concealment. Picture it, a person huddled in a blackened outhouse, below freezing temperatures outside, with hands and body shaking from the cold, snuggled up to a roll of burning toilet paper to elude both the U.S. Border Patrol and Death’s messenger, hypothermia. The person dared not open the door for fear of detection by either pursuer. The person’s eyes burned and lungs revolted from the caustic smoke, but there was just enough darkness and warmth to evade his pursuers. Before the morning sun arrived this person was on his feet heading North in pursuit of a job, a job that Americans will not do. It is this job that will allow this person to keep the wolves of poverty from devouring his family.
During the next day’s quail hunt I repeatedly stumbled across stashes of empty gallon water bottles, cold fire rings, and sometimes small back packs. Always the water bottles were empty. Always the fire rings contained the remains of the previous meager meal; a burnt out soup can, melted plastic bread bags, and once in a while a Coke can. Still the contents of the abandoned back packs haunt me still. The backpacks usually contained just a single change of street clothes, including underwear and socks. The street clothes, the underwear are intimate reminders of another living breathing human’s presence. Why were the backpacks abandoned? Were these people being chased by the U. S. Border Patrol? Had physical exhaustion burdened these people so heavily that they had to dump all excess baggage just to place one foot in front of the other? Was the coyote’s vehicle so packed with humanity that there was no room for frivolous items such as these? I can only speculate. The discarded backpacks seem to speak to me of desperate hope and flight. I have never known such desperation, not ever.
On the drive home, I was funneled through a U.S. Border Patrol checkpoint just outside of Patagonia, Arizona. Two agents approached, one on either side of my Jeep. Seeing that I and my dogs were the sole occupants and fit the right profile they waved us through the checkpoint with a smile and a nod. It is this smile and nod that confirms my citizenship in the land of plenty. It is this smile and nod that the illegal immigrant yearns for; the smile and nod that would confirm the legitimacy of their presence and allow them to lift their families from dirt scratch poverty. It is this smile and nod that the illegal immigrant cannot have.
Copyright Stephan Fowler 2008. All rights reserved.
The Campfire
I find myself alone, sitting next to a camp fire in mid December in Southern Arizona on a 3 day quail hunt. The fire sits atop a cement pad 6 inches high by 3 feet square. On the pad the fire is corralled by a steel fence to ensure that no wandering embers terrorize the surrounding environs.
The fire’s warmth soothes my tired legs and feeds my soul. I sit and reflect on the camp fires of the past. I don’t really visualize the memories; rather I seem to feel their warmth. The warmth of friendship and the bond that occurs between companions who have explored and discovered something of value together; summiting a mountain, rattling around in the desert in a WW2 Willys, or ogling big titted women in a bar. Snippets of memories float and swirl around in my head like giant snow flakes from a February snow storm. I see glimpses of my companion’s faces in the fire light; the crooked teeth of one, the dough boy face of another, the thatched roof for red hair of a third. I remember the taste, the glow and the gift of gab that a shot of old rot gut afforded us. These faces and voices seem just out of reach, only a moment away. I jerk myself back to the here and now and remind my self that I have just turned 50. I suppose it is true that time is relative. Relative to what? A stone? The thought seems silly. Why is it that these memories seem so fresh when they are some 25 to 30 years old? Time does not seem relative to memory.
My feet are cold, damn cold, but the inside of my thighs are hot from the fire. I snicker to myself – qualities of a good woman. On this note I pour a slash of Irish whiskey. The taste is sharp, full, and hot; just the ticket on such an evening. The stars are coming out, the moon is at half bay, the temperature is below 30 and I am right with the world. I am well on my way to becoming God’s own drunk and a fearless man.
My two hunting dogs are curled up on the sleeping bag I laid on the ground next to the fire. Both dogs are females, one is the Alpha and the other one is definitely not. The Alpha lies snoozing while the other lies stiff and apprehensive next to the Alpha. She knows that it is not her place to occupy the same space as the Alpha.
My glass is empty, God Damn it! It must have a leak. I stroll over to the camp table, pour another slash, and light a cigar. I stop and look at the lit cigar. I hold it up for inspection like a child holds up a caterpillar. Why are cigars so pleasurable? May be it gives me the sense that I am not quite house broken after all. That I still could run with the Big Dogs if I choose to. Where the Big Dogs are going or who the Big Dogs are I don’t have a clue. What if I am a Big Dog? This is an odd thought.
I look at my glass again. The whisky level has dropped precariously low. Son of a Bitch my glass does have a leak! It occurs to me that the whiskey is leaking, leaking out the top of the glass. No wonder my feet have warmed up. Yes, I have arrived. I am God’s own drunk and a fearless man. At this point the Alpha stands up, ears erect, hackles standing on end, and sounds the alarm. I am startled and shrink to the fire. I hurriedly search a 20 foot radius around the fire with my flash light. I wonder if I am about to have a reunion with the same mountain lion I ran into last year in a canyon not far from here. I am relieved to find no glowing, piecing eyes. The spell is broken. Hum… Maybe I am not quite the fearless man I thought. Better back away from the jug. It is time for dinner and then bed, with my dogs as guardians and companions.
Copyright Stephan Fowler 2008. All rights reserved.
The fire’s warmth soothes my tired legs and feeds my soul. I sit and reflect on the camp fires of the past. I don’t really visualize the memories; rather I seem to feel their warmth. The warmth of friendship and the bond that occurs between companions who have explored and discovered something of value together; summiting a mountain, rattling around in the desert in a WW2 Willys, or ogling big titted women in a bar. Snippets of memories float and swirl around in my head like giant snow flakes from a February snow storm. I see glimpses of my companion’s faces in the fire light; the crooked teeth of one, the dough boy face of another, the thatched roof for red hair of a third. I remember the taste, the glow and the gift of gab that a shot of old rot gut afforded us. These faces and voices seem just out of reach, only a moment away. I jerk myself back to the here and now and remind my self that I have just turned 50. I suppose it is true that time is relative. Relative to what? A stone? The thought seems silly. Why is it that these memories seem so fresh when they are some 25 to 30 years old? Time does not seem relative to memory.
My feet are cold, damn cold, but the inside of my thighs are hot from the fire. I snicker to myself – qualities of a good woman. On this note I pour a slash of Irish whiskey. The taste is sharp, full, and hot; just the ticket on such an evening. The stars are coming out, the moon is at half bay, the temperature is below 30 and I am right with the world. I am well on my way to becoming God’s own drunk and a fearless man.
My two hunting dogs are curled up on the sleeping bag I laid on the ground next to the fire. Both dogs are females, one is the Alpha and the other one is definitely not. The Alpha lies snoozing while the other lies stiff and apprehensive next to the Alpha. She knows that it is not her place to occupy the same space as the Alpha.
My glass is empty, God Damn it! It must have a leak. I stroll over to the camp table, pour another slash, and light a cigar. I stop and look at the lit cigar. I hold it up for inspection like a child holds up a caterpillar. Why are cigars so pleasurable? May be it gives me the sense that I am not quite house broken after all. That I still could run with the Big Dogs if I choose to. Where the Big Dogs are going or who the Big Dogs are I don’t have a clue. What if I am a Big Dog? This is an odd thought.
I look at my glass again. The whisky level has dropped precariously low. Son of a Bitch my glass does have a leak! It occurs to me that the whiskey is leaking, leaking out the top of the glass. No wonder my feet have warmed up. Yes, I have arrived. I am God’s own drunk and a fearless man. At this point the Alpha stands up, ears erect, hackles standing on end, and sounds the alarm. I am startled and shrink to the fire. I hurriedly search a 20 foot radius around the fire with my flash light. I wonder if I am about to have a reunion with the same mountain lion I ran into last year in a canyon not far from here. I am relieved to find no glowing, piecing eyes. The spell is broken. Hum… Maybe I am not quite the fearless man I thought. Better back away from the jug. It is time for dinner and then bed, with my dogs as guardians and companions.
Copyright Stephan Fowler 2008. All rights reserved.
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