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Last week, White House spokeperson Trent Duffy provided the Bush administration's rationale for its extralegal program to spy on United States citizens. Duffy quipped: "The fact is that Al Quaida's play book is not printed on Page 1, and when America's is, it has serious ramifications. You don't need to be Sun Tzu to understand that."
Duffy was referencing the "big idea" of Sun Tzu's seminal work, "The Art of War," which could be stated as "the ideal strategy is to win without fighting -- to defeat the enemy before combat becomes necessary."
It was an odd but telling comment, and worth exploring for the critical insights it provides about Bush's views on spying and executive branch power.
It may at first seem strange to hear the White House praising an ancient Chinese Taoist thinker to justify a secret Executive Order that allows the National Security Agency to eavesdrop on phone conversations, email and other electronic communications without a court warrant. After all, this is the president who said in a December 1999 presidential debate that Jesus was his favorite political philosopher. And it is ironic, at the very least, for the born-again leader of the free world to be lauding a general from a despotic land who commanded his troops during a time of intense internal conflict.
Yet, Sun Tzu's work has been a staple of Asian business leaders for years, and has recently caught on with American CEOs. Dozens of management handbooks -- the kind you might half-heartedly thumb through in an airport bookstore when your flight has been delayed -- have drawn on Sun Tzu's military philosophy to find lessons for the corporate world. In the supercynical 1987 film "Wall Street," Gordon Gekko, the corporate raider, boasts: "I don't throw darts at a board. I bet on sure things. Read Sun Tzu."
Sun Tzu was a Chinese general who lived in the 6th century BCE, when the powerful Zhou Dynasty was in decline. Many regional feudal lords were competing with the king, and China was in a period of intense and prolonged civil war. Regarded as barbarians by other Chinese, the Zhou leaders appointed their own kinsmen -- or the kinsmen of their most trusted allies -- to rule over the various city-states. In order to convince their subjects of the legitimacy of their power, the Zhou invented a system of authority which they called the "Mandate of Heaven."
Sun Tzu was desperately worried about his nation becoming exhausted by war. He warned that "when you do battle, even if you are winning, if you continue for a long time it will dull your forces and blunt your edge. When your forces are dulled, your edge is blunted, your strength is exhausted, and your supplies are gone, then the other side will take advantage of your debility and rise up."
In order to avoid this national burnout, a leader should strive to keep the enemy off balance through extensive trickery -- "a military operation involves deception." Deception must be ongoing, and unpredictable: "Even though you are competent, appear to be incompetent. Though effective, appear to be ineffective."
Not surprisingly, Sun Tzu believed in the critical importance of spying. In his final chapter, "On the Use of Spies," Sun Tzu relates the importance of foreknowledge, which must come from people who intimately know the conditions of the enemy. He identifies five specific kinds of spies: the local, the inside, the reverse, the dead and the living. Because of their importance, "No one is given rewards as rich as those given to spies."
Yet, a deep current of Taoist moderation runs through Sun Tzu's advice, demanding clear limits and extraordinary discipline before undertaking serious campaigns such as war. In his own way, he was calling for a system of checks and balances. Thus, he warned, "One cannot use spies without sagacity and knowledge, one cannot use spies without humanity and justice"
In its dealings with the extralegal program to spy on U.S. citizens and others living in America -- or to extract information from them -- the White House has shown no sagacity, humanity or justice. Rather, the administration has done exactly the opposite of what Sun Tzu instructed.
Take sagacity. When Bush was unable to obtain top-level clearance for the wiretaps from then-Deputy Attorney General James Comey, two aides -- Andrew Card, White House chief of staff, and Alberto Gonzales, then-White House counsel -- went to George Washington University Hospital in a bizarre after-hours effort to get then-Attorney General John Ashcroft, who was recovering from gallbladder surgery, to sign off on it.
Humanity? This is the White House that supports extraordinary rendition of possible suspects to countries that torture freely in order to extract often inconsequential or fabricated information. Extraordinary rendition is when the CIA sends terror suspects to foreign intelligence agents without extradition proceedings. Suspects have been sent to Syria, Morocco, Egypt and Jordan, countries whose violent practices have been documented and condemned by the U.S. State Department's annual human rights report.
Like Nixon more than 35 years ago, Bush has ordered the NSA to conduct electronic snooping on communications of hundreds of people, including U.S. citizens. Unlike Nixon, however, this president has fully admitted spying and shown no remorse. Watergate settled Fourth Amendment law that the Executive Branch may not engage in wiretapping or other forms of electronic surveillance of the contents of private communications without probable cause and a warrant. Moreover, since the 1950s, the U.S. Supreme Court has clearly held that the president's power as commander in chief provides authority over the military and its battlefield operations but does not provide any comparable authority on matters at home.
Duffy, in quoting Sun Tzu, cavalierly told the American people that deception is the name of the game these days. In effect, he told the American people that they may as well distrust the administration, since the administration clearly distrusts them.
The American public recognizes the problems of applying corporate espionage strategies to the administration of the open democratic society of the United States. In the past few weeks, hundreds of letters to newspaper editors calling for impeachment proceedings have been published and posted online. Academics and lawyers are now openly assessing legal arguments to support impeachment proceedings.
And watchdog organizations are beginning to act. NGOs like Human Rights Watch have also advanced arguments that the alleged torture and other mistreatment of detainees, if proven, would amount to serious violations of U.S. criminal law, such as the War Crimes Act and the Anti-Torture Statute, and have called for a special prosecutor to investigate alleged mistreatment of detainees in U.S.-controlled detention facilities abroad.
And in late December, the ACLU sent a detailed letter to Gonzales calling for the appointment of an outside special counsel to investigate and prosecute criminal acts committed by any member of the Executive Branch in the NSA's warrantless surveillance of people in the United States over the past four years.
In the coming weeks, Congress plans to exercise its oversight role by holding hearings on the question of the legality of the Bush administration's eavesdropping program. Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee, has pledged to make hearings into this program one of his highest priorities.
In a recent letter to Specter, Sen. Schumer, D-N.Y., also on the Judiciary Committee, said the Senate should also explore "significant concern about the legality of the program even at the very highest levels of the Department of Justice." Sen. Richard Lugar, R-Ind., the chairman of the Foreign Relations Committee, also supports hearings.
Rep. John Conyers has also argued that the president committed impeachable offenses because he and senior administration officials "countenanced torture and cruel, inhuman and degrading treatment in Iraq" at Abu Ghraib and other locations, as well as at Guantanamo Bay and the now-notorious "black sites" around the world, including those in Eastern Europe and Afghanistan.
Congress must act to put the brakes on Bush's Cold War-era projects before even larger spying programs are approved. The hearings on Samuel Alito -- no friend to civil liberties and individual rights -- are about to begin, and President Bush just kicked off a barnstorming tour to drum up support for the USA PATRIOT Act, many key provisions of which were set to expire Saturday.
Indeed, we can read Sun Tzu to know where Bush is heading. It is best, Sun Tzu said, when citizens are not involved in military campaigns. It is best, he said, to throw a blanket of silence, of darkness, over the nation on whose behalf the military is working.
That might have been great during a period of civil war 2,500 years ago. However, it is not relevant to a modern society with a system of checks and balances based on a written constitution -- a constitution the president has sworn to uphold, and whose violation can be grounds for impeachment.
Noah Leavitt is an attorney. He can be contacted at nsleavitt@hotmail.com.
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