Treason of the Professors [Updated]

William Bradford is an Associate Professor of Law, National Security, and Strategy at the National Defense University in Washington, D.C., and at the National Defense College in Abu Dhabi, United Arab Emirates. He has a Ph.D. from Northwestern and an LL.M. from Harvard. Bradford was briefly a professor at the U.S. Military Academy. He authored a long–almost book-length–article in the Spring/Summer 2015 volume of the National Security Law Journal titled “TRAHISON DES PROFESSEURS [Treason of the Professors, a homage to Julien Benda’s Trahison des Clercs]: THE CRITICAL LAW OF ARMED CONFLICT ACADEMY AS AN ISLAMIST FIFTH COLUMN.”

Bradford begins with the proposition that the West is losing its war against Islamic extremism. In all of the quotes below, Bradford’s copious footnotes are omitted:

As of 2015, the West is losing the 4GW [fourth generation war] Islamism declared for three reasons. First, at the most basic level—understanding what the war is about—Islamists enjoy a near-decisive edge: whereas they are fixed on extending their religious, political, and legal domain across the world, the West quests after a fuzzy vision of a democratic, rule-of-law Islamic world where rights of confessional minorities are respected, goods and ideas are freely exchanged, and incentives to religious radicalism are diminished.

Second, the West underestimates Islamist nature and resolve: although some Western leaders recognize Islamism as a vicious ideology that “follow[s] in the path of fascism, Nazism, and totalitarianism,” few publicly acknowledge the threat it poses to Western civilization, and most believe it will follow its ideological predecessors “[in]to history’s unmarked grave of discarded lies.”

Third, the conflict with Islamism became a 4GW in 1979, and Western failure to adapt to the changed nature of the war is magnified by its disadvantage in PSYOP capabilities. Whereas the West remains invested in the defunct proposition that traditional instruments of power, i.e., conventional military force, that carried utility in the previous three generations of war, will suffice, Islamists know victory is political, not martial, and that they must destroy the Western will to fight. Islamists forced U.S. withdrawal without victory from Iraq and Afghanistan because they recognized that, although their own forces could never defeat Western troops in battle, Western political will, and in particular its constituents—belief in the legitimacy of a civilization defined by democracy, individual rights, religious pluralism, and the willingness of the Western peoples to fight for the survival of this civilization—was far more vulnerable.

Bradford writes that radical Muslims have targeted “an interconnected ‘government-media-academic complex’ of public officials, media, and academics who mould mass opinion on legal and security issues” for anti-American psychological operations. But his real target is academia–specifically, the anti-Western law professors he defines as the “critical law of armed conflict academy” (“CLOACA”). As always when the word “critical” is used in the context of legal theory, these academics are bitterly anti-American:

Law professors have seized the power to draw the boundaries of what legal interpretations and conclusions may be expressed without committing the mortal civic sin of transgressing the rule of law. Most crucially, they 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. While this claim applies broadly across the legal academy, a cadre of perhaps two hundred U.S. and allied experts in LOAC [the law of armed conflict]—the LOAC Academy (“LOACA”)—possess the authority and influence as learned and indigenous members of the civilization under assault to validate or invalidate Islamist claims about LOAC and to multiply or denature the combat power of Islamist PSYOPs.

Most pointedly, this charge is aimed at a clique of about forty contemptuously critical LOACA scholars (“CLOACA”) 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.

In the 1960s, there was a popular anti-Communist book called None Dare Call It Treason. Well, William Bradford dares call it treason. Here are several excerpts to give you the flavor of his critique of anti-American, pro-Islamic terrorist legal scholars:

The following are seven tactics, in order of increasing departure from traditional conceptions of the scholarly enterprise, whereby CLOACA conducts PSYOP attacks to support Islamist military operations. The first is promotion of more rigorous rules and compliance standards for Western militaries. The second is distortion of LOAC principles to immunize Islamist combatants and render counterforce more operationally complex and legally risky. Third, CLOACA misrepresents aspirations for what LOAC should be as statements of fact as to what LOAC already 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.

All of these items are meticulously documented.

It mattered not to CLOACA that 40% of detainees admitted Islamist status, 75% were a “demonstrated threat,” and most vowed to return to jihad if they gained release. Ipse dixit, the detainees—“students, farmers, and goatherds” in the wrong place at the wrong time and subjected to preventive detention, an “extreme” measure “inconsistent with…human autonomy and free will”—were victims of Islamophobia. If the United States disagreed, it could try to prove otherwise in civilian criminal trials.

NGO lawyers and a CLOACA cluster—self-styled patriots nobly representing despised pariahs—demanded their clients’ release and closure of GTMO, a site they analogized to World War II-era death camps. Those who gainsaid the detainee innocence and attorney heroism narrative were heretics against the U.S. rule-of-law religion. When Deputy Assistant Secretary of Defense for Detainee Affairs Charles Stimson expressed “shock” that elite law firms were “representing terrorists,” CLOACA joined a successful campaign to have him fired for a statement the American Bar Association branded “deeply offensive to . . . the legal profession, and we hope to all Americans.”

More about GITMO:

By any fair standard, no interrogation technique employed pursuant to U.S. policy constituted torture, and conditions at GTMO, where the average detainee eats specially prepared halal meals, recreates on a $750,000 soccer field, and receives his Qur’an from gloved guards “as if it were a fragile piece of delicate art,” are better than most federal prisons. The Obama administration deems GTMO a Geneva-compliant facility and thus, contrary to a 2009 executive order, has kept it open.

However, CLOACA claims U.S. interpretations of LOAC informing detention policies were legal “travesties” that turned GTMO into a “gulag,” a “horror,” and an “alien planet” rife with poor medical care, “sensory deprivation,” “beat[ings],” “rape,” and mock executions. Several argue that only shuttering Guantanamo and freeing detainees can “cleanse the nation of [GTMO]’s moral stain” and any resulting harm to national security is the moral price tag for having used torture. These specious claims are spun by CLOACA into a brush to tar America’s reputation, a strop to sharpen anti-U.S. sentiments, and a pick to undermine U.S. political will.

Lawfare is waged by left-wing academics and their minions:

“Counter-counter-terrorism via lawsuit” also harries Western leaders into inaction. CLOACA forks intellectual fodder into a litigation strategy wherein “victims” file Bivens suits against U.S. officials—attorneys, CIA and FBI directors, the Attorney General, and the President—seeking damages and injunctive relief for alleged violations of constitutional rights arising from rendition, detention, torture, and targeted killing. Despite the speciousness of these cases—and courts that reach the merits find for defendants—CLOACA views Bivens suits less as opportunities to vindicate individual rights than as moments to foment public opposition to U.S. policies and leverage plaintiffs’ legal arguments into political attacks on those policies.

Bradford connects today’s pro-terrorist academics with their Marxist roots:

For CLOACA, religion plays the same role as race in Critical Race Theory and as class in Marxism, and Muslims, oppressed by Western political, economic, and military hegemony, are entitled to disregard any and all rules of LOAC that reinforce their military disadvantage and thus their political and economic subordination to the West.

These excerpts merely skim the surface. Bradford’s critique is broad, deep, and meticulously documented. Most readers will find it persuasive. Where Bradford goes astray, I think, is in his prescriptions for reform. He seriously suggests, among other things, that pro-terrorist law professors could be prosecuted for treason:

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 along the following continuum.

1. Marketplace of Ideas …
2. Counter-PSYOPs: Why We Fight …
3. Loyalty Oaths …
4. Terminate Disloyal Scholars …
5. Charge Material Support of Terrorism …
6. Charge Treason …
7. Treat CLOACA Scholars as Unlawful Combatants …

One might describe these prescriptions as increasingly far-fetched. Certainly, under anything like existing law there is no prospect (nor should there be) of charging pro-terrorist legal scholars with material support of terrorism or treason, let alone imprisoning them as unlawful combatants. That said, was anything Bradford wrote more outlandish than the nonsense that is endlessly cranked out by anti-American, pro-terrorist academics, some of whom want to imprison American military and civilian leaders? No.

While Bradford’s proposed remedies went too far, the bulk of what he wrote is hard to dispute. And, of course, no one will dispute it. The Left will simply get Bradford fired:

A spokesman at the US Military Academy said William C. Bradford resigned Sunday. He said no further details would be released because of privacy and legal constraints.

The journal that published Bradford’s article must be punished too:

The publication apologized in an editorial last week in response to a barrage of criticism from readers. Editor-in-chief Rick Myers repudiated the article and said the publication is reviewing its selection process “to ensure that we publish high quality scholarly articles.”

You might want to follow the first link above quickly, to be sure that you can read the article before it disappears. In academia–and not just in academia–the anti-American, anti-Western Left is firmly in the saddle.

UPDATE: A law professor writes to say that I give Bradford too much credit. Bradford has a history of misrepresenting his background and employment experience. He is not, in fact, an “assistant professor” at the Defense Department-run National Defense University. On another occasion, he apparently misrepresented the extent of his military service. Such issues may have played a part in his departure from West Point.

The law professor continues:

Second, many of the professors he goes after are anything but lefty anti-American types. Academia has plenty of those, but his aim is hardly precise, and he ropes in just about any professor who has ever reached any conclusion on relevant subjects with which he disagrees. Sure the article has lots of footnotes, but hardly means its claims are truly well-documented.”

Point taken. Bradford’s piece plainly paints with a broad brush, and is more a cri de cœur than a typical journal article.

Third, the professor pointed me to this essay by Jeremy Rabkin, a law professor at George Mason University, which houses the National Security Law Journal. Rabkin calls Bradford’s article an “embarrassment,” mostly on account of the prescriptions Bradford offers, which, as I noted, are over the top:

When an article proposes to arrest law professors and bomb law schools and nearby TV studios, it’s not engaging in “controversy,” but slipping into an alternate universe. It’s not “discomforting.” It is bonkers. The journal could not reasonably have expected readers to “respond” – unless to ask, “Are you out of your minds?”

Rabkin puts it more colorfully than I did, but, yeah. I only wish that academic calls for the arrest of Dick Cheney and Donald Rumsfeld would meet with similar scorn.

We are long overdue for a serious discussion of the role that elites in the legal profession have played in our now 14-year-old (at least) war with Islamic extremists. Unfortunately, because of flaws in both the messenger and the message, Bradford’s essay will not prompt such a debate.