UPDATE: West Point instructor out, wrote 'kill-the-lawyers' paper

UPDATE SEPT. 1: William C. Bradford, author of a 180-page law review article identifying U.S. and foreign legal scholars who challenge U.S. drone killings, torture and other anti-terrorist tactics as traitors who can be legally killed, has resigned from his new appointment as a U.S. Military Academy at West Point instructor, reports the Guardian, which also says Bradford's credentials have been under review. AUG. 29: Has the fight against Islamist terror come to this: law professors critical of U.S. tactics, accused of treason, can face firing, arrest, prosecution, even drone strikes on their offices as they talk to reporters?

The new editors of the National Security Law Journal, published by the law school down at George Mason University in Virginia, say their predecessors "made a mistake in publishing a controversial article" last month by William C. Bradford, now a professor at the United States Military Academy at West Point, N.Y. According to Bradford's richly-footnoted, 180-page piece, dozens of professors who challenge U.S. policy in fighting Islamic militants constitute a disloyal "fifth column" who are committing treason and can legally be punished or killed, for example in their law offices or while at TV studios. The Journal doesn't address Bradford's arguments; it apologizes for the "egregious breach of professional decorum that it exhibits.... We cannot "unpublish" it," but rather "acknowledge that the article was not presentable for publication." See 180-page article here. Highlights:  

Bradford argues that government officials, journalists and lawyers who challenge U.S. policy and practices in our conflicts with violent Islamist groups are furthering the "psychological operations" (PsyOps) agenda of Islamist forces who "know no limits" in their attacks on humanity to gain power. Bradford calls their work "treasonous" because it results in the withdrawal of Western forces from Islamic countries, granting victory to Islamists.

The excerpts below reference LOAC -- the "Law of Armed Conflict," the reciprocal system by which civilized nations's armies fight within limits,  for example avoiding civilian deaths -- which Bradford notes the Islamists don't follow. Bradford dubs these legal scholars as the "Contemptuous Law of Armed Combat Academy" scholars, headed by an elite of 40 prominent law professors (many of them identifiable from his footnotes, see below) who Bradford contends are working to help the Islamists win. He refers to this group by the acronym CLOACA -- which (though he doesn't point this out) is also the Latin term for "sewer." Or "anus."

Bradford reams "CLOACA" scholars for what he calls un-scholarly and disloyal tactics: "The first is promotion of more rigorous rules and compliance standards for Western militaries [vs terrorists who observe no such rules]. The second is distortion of [Law of Armed Conflict] principles to immunize Islamist combatants and render counterforce more operationally complex and legally risky. Third, CLOACA misrepresents [what the Law of Armed Conflict actually is]... Fourth, CLOACA degrades U.S. intelligence collection and exploitation. Fifth, it advocates restoration of Islamist detainees to the battle, and sixth, it calls for prosecution of U.S. troops for alleged LOAC violations to cause hesitancy, indecision, and reduction in military vigor. Finally, it encourages execution of direct action missions, including material support of Islamists and treasonous conduct."

"When legal scholars enter the battlefield of ideas... they are not neutrals," Bradford warns.

These legal scholars, he writes, "have converted the U.S. legal academy into a cohort whose vituperative pronouncements on the illegality of the U.S. resort to force and subsequent conduct in the war against Islamism—rendered in publications, briefs amicus curiae, and media appearances—are a super-weapon that supports Islamist military operations by loading combat power into a PSYOP campaign against American political will...

"Most pointedly, this charge is aimed at a clique of about forty contemptuously critical LOAC scholars who, by proposing that LOAC restrictions on Islamists be waived to provide unilateral advantage, that Western states face more rigorous compliance standards, and that captured Islamist militants be restored to the battlefield, effectively tilt the battlefield against U.S. forces, contribute to timorousness and lethargy in U.S. military commanders, constrain U.S. military power, enhance the danger to U.S. troops, and potentiate the cognitive effects of Islamist military operations.

"Moreover, CLOACA, rather than make goodfaith legal arguments as to what LOAC does, does not, should, and should not require, offers up politicized arguments—against evidence and reason—that the Islamist jihad is a reaction to valid grievances against U.S. foreign policy, that civilian casualties and Abu Ghraib prove the injustice of the Western cause, that law enforcement suffices and military action is a gross over-reaction, that U.S.-led interventions in Iraq and Afghanistan are illegal aggression per se, that the United States is engaged in a pattern of war crimes à la Nazi Germany, that U.S. criminality breeds more terrorists and threatens the rule of law, that U.S. leaders should be prosecuted for crimes that make Americans less safe, and that dissenters merit professional condemnation and prosecution to shame or compel them into silence...

"Rather than committing its prodigious talents into the service of its nation of birth or employment, or at least serving as a dispassionate, neutral seeker of truth, CLOACA has mustered into the Islamist order of battle as a Fifth Column to direct its combat power against American military power and American political will.

"This radical development—employment of PSYOPs by American elites against Americans—is celebrated in the Islamic world as a portent of U.S. weakness and the coming triumph of Islamism. That a trahison des professeurs ["treason of the professors," a reference to Julien Benda's 1920s-era denunciation of French intellectuals who refused to condemn dictators as a "treason of the intellectuals"] is responsible for the creation of the most important strategic weapon in the Islamist arsenal, is a serious charge...

"[There are] perhaps two hundred U.S. professors who regularly publish or teach in LOAC, and another thirty from allied nations—Israel, EU, Australia, New Zealand, Canada, and Japan—constitute [the 'Law of Armed Conflict Academy.']

[In this rebuttal to Bradford's piece, George Mason Prof. Jeremy Rabkin notes that Bradford's footnotes cite "a range of scholars, whose works purportedly exemplify such treasonous activity. Among those cited are: Gabriella Blum of the Harvard Law School, a former military lawyer for the Israel Defense Force; Ryan Goodman of NYU Law School, now serving as a senior policy adviser at the Department of Defense; Michael Scharf, a professor at Case Western Law School, who served as a legal advisor to the Iraqi government for the trial of Saddam Hussein and before that in the Legal Advisor's office at the State Department; and Michael Walzer of the Institute for Advanced Study in Princeton, whose book on the ethics of war has been assigned at U.S. military academies for decades.

"It is outright libel to call such scholars "combatants" in the service of Islamist aggression. The only defense for such accusations is that they are too preposterous for anyone to take seriously. It is the contemporary equivalent of the John Birch Society claiming, in the 1950s, that Secretary of State George Marshall and then President Dwight Eisenhower were Communist agents."

Returning to Bradford: "This Article emphatically does not regard all LOACA scholarship critical of U.S. policies as per se offerings to Islamism or its authors as ipso facto state enemies."

And yet, he argues, these leading professors are "waging a PsyOp campaign to break American political will by convincing Americans their nation is fighting an illegal and unnecessary war against Islam that it must abandon to reclaim moral legitimacy."

[Regarding drone killings]: "Predictably, CLOACA charges that targeted killing is no different from extrajudicial killing,' assassination,' and the use of 'death squads'. To this cohort targeted killing denies process due even foreigners in wartime; if Islamists are denied the opportunity to surrender, their killings compromise the values, goals, and purposes of the liberal state itself. Only... warranted arrests and trials of Islamists will satisfy critics whose scholarship and litigation campaigns castigate U.S. personnel who order and use [unmanned autonomous vehicles, or drones]... 

"Some imply that Americans engaged in targeted killing are themselves unlawful combatants and the killing of Osama bin Laden by Naval Special Warfare teams was illegal...

"Yet when UAVs [were used to suport] a humanitarian intervention in Libya—a mission CLOACA favored—a volte face occurred and an unwavering hostility toward UAVs softened...

"CLOACA argues Islamists should be entitled to warranted arrests and trials or, if infeasible, prior judicial scrutiny and international supervision before targeted killing may be employed."

Bradford defends the use of torture on terrorist suspects; he side-steps the question of whether it is effective at developing useful information (Army experts have testified it doesn't work), but points out that Obama's preference for drone killings over torture makes it harder to potentially get information from terrorists, once we have blown them up.

These leading scholars' arguments, Bradford complains, "would bolster the defense of unlawful combatants," even though Islamists reject the Law of Armed Conflict when they use civilians as shields and kill "from the cover of hospitals, schools and mosques" -- then try, in Western courts, to use the conflict laws "as a shield."

Bradford says the "CLOACA" scholars haven't forgiven the criminal conviction of "Lynne Stewart, a radical lawyer who advocates violence directed at the institutions which perpetuate capitalism, racism and sexism and represented Omar Abdel Rahman, the blind sheikh who masterminded the 1993 World Trade Center bombing. Stewart provided material support to Rahman by assisting his interpreter in sending encrypted messages indicating Rahman's approval of further Islamist attacks.... She was convicted and imprisoned for providing expert advice and assistance in conspiracy with Rahman and Al Qaeda." Too many scholars, Bradford complains, see Stewart's conviction as a blow at "First Amendment activity in support of (terrorist) organizations..."

He also cites the federal court decision in U.S. v. Tarek Mehanna. The court found "Mehanna, who expressed hatred of the United States and hope for its defeat, was not engaged in independent and constitutionally-protected advocacy of Islamist aims, but had in fact worked in coordination with or at the direction of‖ Al Qaeda to provide services, training, expertise, and assistance in support of its terrorist mission."

According to Bradford, lawyer who aggressively criticize U.S. anti-Islamist programs are subject to the same laws used against Mehanna, providing "material support" to terrorists and enemies of this country and the West.

In short: "A Fifth Column has enlisted to fight against the political will of the American people, commending its knowledge of [conflict law] into the service of Islamists seeking to destroy Western civilization and re-create the Caliphate. CLOACA potentiates Islamist military operations against U.S. targets...  by promoting differentially onerous rules for the U.S. military, misapplying and distorting customary principles of [conflict law] to U.S. disadvantage, propounding claims as to the law governing detention and interrogation that degrade U.S. intelligence collection and return Islamists to the battlefield, threatening U.S. troops with groundless prosecutions, and otherwise abusing their status and knowledge to support materially the Islamist foe.

"Worse still, CLOACA is engaged in direct PsyOps against American political will... to convince Americans that the attacks of 9/11 are their just deserts for a foreign policy that privileges Israel and subordinates Muslims, that in the course of an illegal war their country commits torture and war crimes on the order of Nazi Germany, that this illegal war is undermining national security and destroying the rule of law, and that the only way to rebuild American virtue is to end the war without victory, cede the field to Islamists, and extradite for prosecution those responsible for war policies."

He blames the scholars' legalism, "cosmopolitanism," flawed Civil Rights analogies, skepticism of Presidential power, fear of Muslims, love of Muslims, hope for professional advancement, lack of accountability, ignorance, "useful idiocy," liberal bias, and "moral and physical cowardice" for their anti-American, "treasonous" acts.

"The Islamist foe is winning," Bradford writes. "American political will is crumbling."

What to do? "Admit that we are at war.. Thousands of Islamists live quietly in the West planning, training and preparing (civilian) attacks... (Bush-style) nation-building (and) rule-of-law development... has failed... Conventional and nuclear force and PsyOps must be harnassed to win."

He counsels "an offensive to capture the hearts and minds of Islamic peoples, break their will to fight for Islam, and leave them prepared to coexist," and a second struggle at home "to prevent Islamists from capturing the hearts and minds of peoples of the West...

"Islamists should be anathematized as modern-day outlaws shorn of rights and liable to attack by all means and methods at all places and times and to judicial execution post-interrogation. The West must shatter Islamists' political will and eradicate those who do not renounce Islamism."

Bradford recommends "fighting viciously with all methods and means... Morality and pragmatism endure, and some restraints can be observed with respect to lawful combatants and truly innocent civilians. However, there is intrinsic evil in Islamists and their cause, and should the West lose this war, it will lose its civilization and the laws which undergird it...

"The Left sees the military as a danger to liberty, democracy, and peace, and because only the military and a militarized civil society can defeat the Islamist threat, the hostility of the Left to the means and methods of total war, as well as to the steps necessary to promote unity, moral certainty, and will to fight, must be attenuated...

"In 1861, Lincoln observed that 'measures, otherwise un[lawful], might become lawful, by becoming indispensable to the preservation of the . . . Nation.'  The existential threat circa 2015 merits as wide a margin of appreciation for U.S. leaders in divining the means and methods necessary to defend Americans...

"Eliminate the Fifth Column... it is possible to dismantle the most important of the intellectual foundations that encourage Islamists in the destruction of American will to fight. That Americans should seek to counter CLOACA as part of the defensive battle against Islamism is reasonable and necessary. The specific forms this counterattack might assume range in terms of increasing coercion:...

"One option is to do nothing.... [But] liberals in LOACA so outnumber conservatives that they drown... their voices, precluding anything even approximating a fair fight.... [The professors are] far too formidable an intellectual opponent for the lay public. With no forum in which to engage them, and precious few champions to battle on their behalf, American challengers to CLOACA face an all-but-impossible task...

"The United States should conduct a counter-PsyOps campaign that simply explains to Americans who their enemy is, why Americans fight, and the legality of methods and means the United States employs.

"This might include films, videos, and cyber content modeled after the 1940s federallycommissioned, Hollywood-produced documentary film series Why We Fight that countered enemy propaganda, explained the war aims of Germany and Japan, and reassured Americans of the justice of their cause... The United States should commission [legal scholar] dissidents to counter the Fifth Column in scholarship and other media...

"More coercive solutions would reconstruct and discipline CLOACA to reclaim it from Islamists. Loyalty oaths—solemn appeals to a higher power warranting that affiants bear allegiance to the laws and goals of the state [should be imposed on] faculty at universities that receive federal funds...

"A more proactive method to suppress disloyal radicals is to fire them. Islamists are heartened by their scholarly output and regard their presence within the academy as proof of American weakness and of the inevitability of Islamist victory; stripping tenure from [professors] who express palpable anti-American bias, give aid and comfort to Islamists, or otherwise engage in academic misprision and corruption will deny the CLOACA Fifth Column the most important institutional terrain...

"Charge Material Support of Terrorism: CLOACA members whose scholarship, teaching, or service substantiates the elements of criminal offenses can be prosecuted" by state and local criminal prosecutors and by Congress in "a renewed version of the House Un-American Activities Committee" or in mililtary courts.

And finally: "Treat CLOACA Scholars as Unlawful Combatants CLOACA scholarship and advocacy that attenuates U.S. arms and undermines American will are PsyOps, which are combatant acts." The law professors "are thus combatants who, like all other combatants, can be targeted at any time and place and captured and detained until termination of hostilities.... subject to coercive interrogation, trial, and imprisonment.

"Further, the infrastructure used to create and disseminate CLOACA propaganda—law school facilities, scholars' home offices, and media outlets where they give interviews—are also lawful targets given the causal connection between the content disseminated and Islamist crimes incited.

"Shocking and extreme as this option might seem, CLOACA scholars, and the law schools that employ them, are—at least in theory—targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism."

In closing, Bradford cites Churchill, Reagan, and the medieval Song of Roland.