Archive for the ‘CIA’ Category

Western diplomats stumble in the Ukraine—-Stop telephone diplomacy, let Germany lead, and publish serious international law memoranda

Friday, March 7th, 2014

Updated March 7, 2014

Western leaders have made three major blunders since the Russian military takeover of the Crimea first began on or around February 25.

Telephone Calls to Putin

First, they have engaged in a series of telephone calls to Russian President Vladimir Putin and his foreign minister, Sergey Lavrov. Obama’s calls to Putin, who is reliably reported to detest him, have had no positive effect and may well have stiffened his resistance to the conciliatory proposals from the West. Even Angela Merkel’s calls directly to Putin have probably been ill-advised.

Such calls may in some circumstances be useful if their occurrence and content is kept private. While they may satisfy a hunger for instant gratification in the age of the Internet, decisions to deploy tanks and military ships are not likely to be reversed by e-mails or telephone calls, which between heads of government are probably heavily scripted, and further distorted by the use of interpreters.

Moreover, formal written communications have the advantage of permitting a wider range of officials with different perspectives to participate in their review and offering suggestions for response. Both with Putin and with Obama, and probably other government leaders as well, the quality of the exchange is likely to be improved by wider internal review and additional time to formulate policy and decisions.

On the Charlie Rose show on March 5, Henry Kissinger provided a powerful explanation of why direct communications between heads of government is usually a poor idea. This seems to be all the more true in a crisis like the one in the Ukraine, folllowing Russian military intervention in the Crimea, which remains under Russian military control and occupation.

Today, again, we learn that Obama called Putin and during a substantive call made no progress.

See “Ukraine-Krise: Putin bleibt hart in Telefonat mit Obama; Eine Stunde lang haben Putin und Obama die Lage auf der Krim beredet. Doch an dem Kurs des russischen Präsidenten hat das nichts geändert – er sagt: Russland dürfe die Hilferufe aus der Ukraine nicht ignorieren,” Der Spiegel, 7. Marz 2014 (6:45)

Generally, particularly in the case of Obama, such telephone calls and background briefings on their content are used as part of a campaign to show others Obama is doing something and Putin is being unreasonable.

Urgent Advice: Take the telephone away from Obama. He has not charmed or persuaded Putin, and he isn’t going to.

(Quote from Kissinger)

Trying to Force the Russians to meet with Ukrainian Officials

The second mistake Western diplomats have made in recent days is to try to force the Russians to sit down at the same table and talk to representatives from the new government in Kiev. This has been a huge blunder, confusing the goals of process with those of substance. The substantive but secondary goal is to get Russia to recognize the government in Kiev. The primary goal should be to persuade the Russians to cease and desist from further provocative actions in the Crimea and in the Eastern Ukraine, whether executed directly by Russians or Russian-speaking supporters. Such actions could–whether by design or inadvertence–ignite the flames of war.

In short, the highest substantive goal in the next few days should be to halt the Russians’ provocations and inflamation of passions. The second substantive goal should be to obtain formal Russian acceptance of OSCE and other observers, and to provide formal guarantees of their physical safety.

The ill-advised efforts to force the Russians to talk to the Ukranians before the stage is set, and the Russians want to, only aggravates the circumstances in which substantive diplomatic activity can take place.

These attempts to force the Russians to talk to the Ukranians reflect the same demented logic according to which simply getting the al-Assad goverment to meet with the opposition at the Geneva II Conference in June would somehow produce a miraculous breakthrough. It didn’t, and it was foolish to think that it could.

American Efforts to Assert its Leadership in Responding to Russia

The third development, unfortunate in the extreme, is that the United States is now seeking the mantle of leadership of the West in relations with Russia in connection with the crisis.

American policy in the Ukraine has not been an unqualified success, with Victoria Nuland’s “F… the EU” cell phone call revealing both deep American involvement with the opposition and disdain for EU leaders and their efforts to resolve the Ukrainian crisis.

And it hasn’t stopped. Only days sgo, a high U.S. official (a woman) was quoted on background in the German press as being highly critical of Angela Merkel, who was far too slow and deliberative in this official’s view. Such American officials do not understand the requirements of diplomacy, and should be immediately removed from the policy making process.

On March 7, 2014, on the Charlie Rose show, Tom Donilon, the former National Security adviser, stressed the importance now of the United States’ reasserting its leadership of the West.

The problem here is that Obama and his foreign policy team have been largely incompetent in dealing with the most urgent foreign policy questions of the last five years. While John Kerry has his strengths (and weaknesses), and Samantha Power provides capable and clear-eyed leadership as Ambassador to the U.N., Obama continues to maintain tight White House control over the making and execution of foreign policy. We and the world, looking at the cumulative evidence, know he is not very good at it. For example, Angela Merkel shared with Obama her perception from talking to Vladimir Putin on the phone that he was “in another world”. Obama promptly leaked this quote to the world, which was probably not helpful in terms of influencing Putin.

With respect to the Ukraine, Obama’s “reset” of relations with Russia undid the measures George W. Bush had implemented to punish Russia for its military intervention in Georgia–without any change in Russian behavior or resolution of the issues in Georgia, where Russian troops remain in enclaves in what amounts to de facto recognition of the fruits of Russian aggression.

Moreover, if Obama had not blinked at the moment of truth when he needed to pull the trigger to launch missiles against Syria, following the use of chemical weapons by Syria at Ghouta on August 21, 2014, Putin in his calculations might have taken the U.S. more seriously and never launched his military takeover of the Crimea.

The Observer’s advice is, “If you’re going to drive from behind (or slumber in the back seat), stay in the back seat and let others who know how to drive drive the car.”

Only two and a half weeks ago, the German, Polish and French foreign ministers hammered out a transition agreement whereby Yanukovych would yield partial power to a transitional government. To be sure, the deal fell apart when the Ukrainian negotiators could not deliver the crowd at the Maidan, the regime collapsed, the parliament relieved the president of his office, and the latter fled first Kiev and then the country. Still, the agreement was a brilliant piece of statecraft.

In the present situation, Obama is in no position to give Vladimir Putin lectures on international law, a concept which the president has only recently introduced into his discourse. Obama’s failure to prosecute officials responsible for torture as required by the U.N. Convention against Torture, his continuing use of drone strikes frequently in apparent violation of international law (particularly outside the war theater of Afghanistan and Pakistan), the continued detention without trial of prisoners at Guantanamo, and NSA’s massive surveillance around the world in violation of constitutions and international law, all strongly suggest Obama is not the best leader to take the lead in the media in making the legal case against Russia.

The U.S. also has a troubled record of its own interventions, including those in the Dominican Republic (1965) and Grenada (1983) which were justified, at least in part, under the rubric of “intervention to protect nationals”.

Germany is a better choice. The U.S. can take the lead with France and Britain in the Security Council.

That is not to say the U.S. in the U.N. and elsewhere should not make the strongest possible legal arguments against the Russian military intervention, in writing. It only means that the U.S. should carefully coordinate its efforts with the Europeans, and avoid undercutting Angela Merkel’s leadership, in the media.

This is not a time for a lot of wordsmithing and speeches and statements by Barack Obama and his administration. The focus, instead, should be on presenting serious and detailed legal memoranda in relevant forums, and on taking concrete actions such as imposing sanctions with real teeth on Russia and Russians.

Consideration should also be given to imposing EU and U.S. travel bans, and more, on individuals in the Crimea who have actively collaborated with Moscow in its military takeover, and who have joined efforts to provoke a secession from Ukraine and annexation of the peninsula by Russia.

The U.S. should work to coordinate its actions with the EU, and to persuade EU leaders behind closed doors, but should let Angela Merkel lead and coordinate the European response to Vladimir Putin’s military intervention in the Ukraine. The Germans and the Poles know the Ukraine, and Putin, far better than does the U.S., and should be allowed to lead. Merkel is the most powerful and respected leader in Europe, has an important relationship with Putin, and also has the experience and insights gained from having grown up in East Germany when it was a police state under Soviet domination.

As suggested above, even as Merkel leads, the U.S can push hard on implementing sanctions while still setting forth its international law arguments in written form, presenting them to the Security Council and also publshing them elsewhere.

Summary of Recommendations

In sum, the Observer’s advice is:

1. Stop the telephone diplomacy with Putin.

2. Don’t try to force the Russians to talk to the Ukrainians before the stage is set, and the Russians have assumed a more conciliatory posture as a result of pressure from the EU and the U.S. The Ukraine’s fate will be decided by the major powers, though the actions of the Ukrainian government will have great import. The biggest challenge for the West is to forge unity behind strong positions, avoiding disarray which can only work to Russia’s advantage.

3. Obama should let Germany, and France and Poland, lead. Obama has important cards to play, but he should keep them close to his vest, and not go channeling his thought processes to the press on background or on TV, through Ben Rhodes or other government officials. He should speak instead with actions, as he did today with the announcement of the first sanctions against Russia and Russians, to take immediate effect.

Among the most important of these actions would be to publish serious and detailed legal memoranda rebutting Russian legal justifications and setting out clealy how its military intervention in the Ukraine has violated international law’s most important prohibitions, as well as treaties and agreements such as the 1994 Budapest Memorandum guaranteeing the territorial integrity, sovereignty, and political independence of the Ukraine.

The Trenchant Observer

(Der Scharfsinniger Beobachter)
(L’Obervateur Incisif)
(El Observador Incisivio)

REPRISE: Anwar al-Aulaqi—Targeted Killings, Self-Defense, and War Crimes

Thursday, February 13th, 2014

Press reports indicate President Obama is considering adding or has already added the name of a U.S. citizen to the kill list for targeted assassination by drone or other means.

See

Tom Cohen, “When can a government kill its own people?,” CNN, February 11, 2014.

Mark Memmot, “U.S. Citizen May Be Targeted With Drone Strike: Reports,” NPR, February 10, 2014.

Given the text of the Fifth Amendment to the Constitution, which provides that no one shall be deprived of “life” without due process of law, and the absurd argument that has been made by Attorney General Eric Holder that “due process of law” does not require judicial involvement, the question arises–however theoretical it may be–as to whether Obama’s authorization of another targeted assassination of a U.S. citizen abroad would constitute a “failure to uphold the Constitution of the United States” (Obama’s oath of office), and therefore grounds for impeachment.

Consider the factors discussed in the previous article reproduced below.

First published on April 7, 2010

The United States has gotten itself into a terrible jam, having adopted the legal justification of the Bush administration for targeted killings.

The Washington Post reports today that,

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command…

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

“He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity….

–Greg Miller, “Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill,” Washington Post, April 7, 2010

If this death warrant is executed in circumstances that do not justify the use of force in self-defense, either at the international or at the domestic level with the permission of the territorial state, its execution may constitute a war crime.

Some lawyers have won the argument within the Obama administration that it is lawful to kill a member of a terrorist organization, particularly if he has been involved in past acts of terrorism, wherever he can be found.

This argument is based on provisions of humanitarian law or “the law of war” that distinguish between combatants who are lawful targets and non-combatants who are not.

It ignores, however, the fact that provisions of humanitarian law are themselves limited by key provisions of the United Nations Charter, particularly Article 2 paragraph 4 which prohibits the use of force against the territorial integrity or political independence of any state, except in the case of self-defense against an armed attack as provided in Article 51.

It is universally recognized that Article 2 paragraph 4 is a norm of jus cogens, or mandatory law from which there can be no exception. Humanitarian law grants no right to act beyond the limitations of this prohibition.

The use of lethal force to punish past actions, moreover, constitutes an armed reprisal, which is universally recognized as prohibited by international law.

In other cases, where the territorial state grants its permission to a foreign state to carry out a targeted killing, such a killing is legal under international law only if it meets the requirements of international human rights law. For the territorial state can cede to another state no greater rights than it itself possesses, and indeed it is far from clear that it can do even this.

Both Article 2 paragraph 4 of the Charter and international human rights law allow for the use of lethal force as may be required for self-defense or for self-defense and the defense of others by the authorities of the territorial state.

In both cases the requirement is that force be used only as a last resort against an ongoing or imminent use of force by the target, or after judicial proceedings and due process of law.

This element is initially self-judging in character, opening the door to abuse. However, just as police allegations that they have acted in self-defense are subject to judicial review, the self-defense justification of a state conducting targeted killings, and of the individuals executing the state’s orders, are subject to review by the courts of other countries exercising universal jurisdiction and potentially, at least in the future, by the International Criminal Court. Actions taken by a state in exercise of the right of self-defense are, moreover, to be reported to the U.N. Security Council under Article 51 of the Charter.

The use of force against an individual who has laid down his arms or ceased and desisted from active participation in attacks (or, in the language of  humanitarian law, has withdrawn from combat or placed himself hors de combat) is an extrajudicial killing or assassination, and would also constitute a war crime.

The problem here is that the U.S. government has become so accustomed to being prosecutor, judge and executioner that it has forgotten that international legal norms are involved, whose content and validity are necessarily determined by others, and that the ultimate validity of the legal justifications for targeted killings are likely one day to be determined by the judges of an international court or a national court exercising universal jurisdiction.

Just as individuals who participated in the “harsh interrogation techniques” program carried out under the Bush administration would be well advised to carefully choose the countries they travel to, now but also particularly in five or ten years, those individuals currently involved in the targeted killings program should also be very confident they are acting in lawful exercise of the right of self-defense when executing their orders.

For if their actions do not satisfy the requirements of self-defense, they constitute the commission of unlawful assassinations, and probably war crimes. As established at Nuremberg, the argument that such actions were carried out under the orders of superiors, or “due obdience”, is not a permissible defense.  Nor is the argument that the defendant believed he was acting in accordance with international law likely to be given any weight as a defense.

The United States has now become an official hit squad, which will go out and kill anyone on its list of targetable individuals.

Yet it is hard to see how the United States can kill its way to peace, in Afghanistan or in the struggle against terrorists in different countries throughout the world.

Whatever the short-term gains from the current approach, and it is far from clear that it does not create more terrorists than it kills, President Obama and his international lawyers need to rethink their approach to targeted killings.

They need to reexamine the issue, both in order to avoid extrajudicial executions and assassinations, and to shape the standards which will also guide other states in the future in deciding whether or not to put someone on a hit list and then to go out and kill him.

It is time to back off from the Wild West, and to return to civilization and the task of building out a viable international legal order.

The Trenchant Observer

www.trenchantobserver.com
E-mail: observer@trenchantobserver.com
Twitter: www.twitter.com/trenchantobserv

Comments are invited, in any language. If in a language other than English, please provide an English translation. A Google translation will be sufficient.

Watch what he does, not what he says: Decoding President Obama’s “State of the Union” speech (including link to text)

Tuesday, January 28th, 2014

President Barack Obama delivered the annual “State of the Union” address to the Congress on Tuesday, January 28, 2014. For the text of the speech, see

The White House, Office of the Press Secretary, “President Barack Obama’s State of the Union Address,” January 28, 2014

Advice for for Decoding the Speech

The advice for decoding the significance of President Barack Obama’s “State of the Union” speech on January 28, 2014 is straightforward:

Ignore the torrent of finely crafted language in which the president seeks to impress you with his knowledge of the problems of the nation and the world, what in his head he thinks should be done, and to persuade you and the nation that he is right.

What is in his head and in his words is almost if not entirely irrelevant, except to the extent it is revealed through his actions. What he is really thinking, in consequential terms, is particularly difficult to discern by merely analyzing the words he speaks.

Watch instead his actions, tonight and over the coming months and years. Watch for announcement of significant actions that he has taken or will take very shortly.

Then, watch what he does. All the rest is either rhetoric or Obamian intellectual analysis that has no meaning without actions to back up the words. If he speaks of democracy and human rights in Africa, for example, take a careful look at the budget for foreign assistance to build civil society and democratic government in the 54 nations of the continent.

Obama speaks now of attacking inequality, but when he had a chance to actually do something about it he quickly folded, agreeing to maintain the Bush tax cuts for the very wealthy who earn between $250,000 and $450,000 per year.

And watch out for hints that he will try to do what Congress won’t do, by executive decree.

The most important issue facing the nation is what the President or the people are going to do to reign in an out-of-control national security and intelligence bureaucracy which is hell-bent on building instruments of potential totalitarian control.

Here, more than anywhere else, one will need to penetrate the smoke and mirrors of Obama’s clever language, and look hard at what capabilities remain in place after whatever “reforms” he may announce are implemented.

Most important will be what actions, if any, Obama announces regarding the secrecy of legal memos and legal justifications for any secret operations–from drone strikes in Somalia to continuing massive surveillance throughout the world.

We know Obama. Watch what he does, not what he says.

The Trenchant Observer

The Emperor and his vassals: Obama and the Surveillance State

Monday, January 20th, 2014

Jakob Augstein, in his column in the German weekly Der Spiegel, has written a penetrating analysis of Obama’s posturing and fine wordsmithing on the issue of U.S. surveillance of communications throughout the world.

Augstein cuts right through to the heart of the matter. At least in the area of spying and surveillance, Barack Obama has arrogated to himself the full powers of an absolute monarch, here an Emperor overseeing a vast realm. In exchange for loyalty, he provides security to his vassals and supporters, such as Germany and other European countries, the United States, and their citizens. His actions, like those of an absolute monarch, are unchecked by constitutional constraints such as those imposed on English kings since the Magna Carta in 1215.

Augstein notes that Obama, in addition to his speech on January 17, also gave a TV interview to the German ZDF network. He writes:

Before the speech and the interview, commentators had speculated on who the speaker would be: the Commander-in-Chief, or the civil rights lawyer? That was a misunderstanding. Here, a Ruler has spoken to his subjects. And the subjects, they are all of us….

In the interview with ZDF Barack Obama let a sentence slip out which contains more truth than the presidential press office can be happy with: “The President of the United States is not the great Emperor (Kaiser) of the whole world, but only a human being, a little wheel (cog) in this machine.” If one believes he has to speak this sentence, in truth he thinks the opposite, and this also fits the speech and the interview. In all the smart and friendly words there was only one message that sticks: The USA can do things which others cannot do, and when it considers it appropriate, it will do these things.”

Such are the views of Jakob Augstein, one of Germany’s leading commentators, in his current column in Der Spiegel.

See Jakob Augstein, “Obamas PR-Offensive: Der Kaiser und seine Vasallen; Präsident Obamas Rede und sein Interview im ZDF waren eindeutig: Die USA erheben Anspruch auf die digitale Herrschaft über den Planeten. Höchste Zeit, dass Deutschland und Europa aus der digitalen Krabbelgruppe kommen und lernen, auf eigenen Füßen zu stehen,” Der Spiegel, 20. Januar 2014 (13:05 Uhr).

For now, the column is available only in German. However, it can be read in different languages including English through Google translator, and should become available eventually on the English-language website of Der Spiegel.

The article merits a close reading and careful reflection.

For an earlier article by the same author on related subjects, in English, see:

Jakob Augstein (commentary), “Obama’s Soft Totalitarianism: Europe Must Protect Itself from America,” Der Spiegel (English), June 17, 2013.

It all sounds preposterous, kind of beyond belief. Yet those who have followed these issues closely know that it is not preposterous, and not beyond belief. We have learned a great deal about U.S. spying and surveillance activities in the last year.

To understand what is going on, still, we must look beyond the clever lawyer-like language in Obama’s speeches and statements, to his actions, and to what the United States is actually doing on the ground–and in the air, and on and under the oceans.

Then, we must measure these actions against the text of the Fourth Amendment to the Constitution of the United States, which establishes the following:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Trenchant Observer
(Der scharfsinniger Beobachter)

183 dead in Syria on January 14—Western intelligence meetings with Syria, the moral universe, and Geneva II

Wednesday, January 15th, 2014

The Syrian Observatory for Human Rights reported the following earlier today:

Final death toll for Tuesday [14/01/2014]: Approximately 183 people killed in Syria.

The dead: (40 civilians including(7 children, 7 women, 2 teenagers) , 36 rebels, 39 YPG, 10 ISIS, 10 non-Syrian ISIS and Islamic fighters, 11 NDF, 31 regular forces, 6 unknown fighters)

by province: Aleppo(12 civilians), Dera’a(9 civilians, 3 rebels), Reef Dimashq(7 civilians, 3 rebels), Homs(4 civilians, 1 rebel), Idlib(2 civilians), Der-Ezzor(1 civilian).

We all need to pay close attention to what is ocurring on the ground in Syria, each and every day.

See also “REPRISE: The Olympic Games, and the Battle for Aleppo, Begin (July 28, 2012); Geneva II and the urgency of a ceasefire NOW,” The Trenchant Observer,
January 12, 2014. Update reports 697 people killed in nine days in Syria.

The Geneva II Peace conference scheduled to begin January 22, 2014 is unlikely to halt, or even slow, the fury of the ongoing civil war in Syria, and the wanton and systematic commission of war cimes and crimes against humanity by the Bashar al-Assad regime, and also by some if not many of the insurgents.

Meanwhile, Western intelligence agencies have met with Syrian officials regarding jihadist threats.

See Maria Abi-Habib, “European Spies Reach Out to Syria,” Wall Street Journal, January 14, 2014 (updated 10:41 p.m. ET).

AFP and Reuters, “Western intelligence ‘talking to Syria regime’,” Gulf News (GulfNews.com), January 15, 2014 (13:34 h). This report cites Western intelligence officials confirmation of contacts, and quotes Secretary of State John Kerry as saying he knew nothing about them.

BBC, “Syria says West talks to Damascus about Islamist rebels; Syrian Deputy Foreign Minister: “Many foreign intelligence agencies have visited Damascus”, BBC News, January 15, 2014 (10:18 ET). The BBC’s chief international correspondent Lyse Doucet said informed sources had confirmed meetings between Western and Syrian intelligence officials.

Incredible! All the more incredible as Secretary of State John Kerry is quoted as saying he knew nothing of these meetings. More sheer incompetence from the Obama administration!

Who makes foreign policy in Washington and the capitals of the Western countries–the intelligence agencies or the elected governments which represent the people?

The civilized nations of the world cannot simply resume intelligence cooperation with al-Assad, without surrendering the last shred of any claim to moral authority which their countries may still have.

If we act as if we do not live in a moral universe where human actions have meaning and moral significance, as Barack Obama and other leaders who have followed or acquiesced in his vision of the world have done in Syria, we will create a self-fulfilling prophecy hurtling us all into a moral abyss. The consequences will be felt in every country, throughout the world. They are already being felt today.

Obama’s place in history is set, barring unforeseen miracles of redemption. Even if the Group of Five plus One and the Security Council conclude a nuclear deal with Iran to limit its nuclear program, the deaths of 130,000 Syrians (and counting) will weigh heavily on Barack Obama’s place in history, not to speak of his reputation for the rest of his life.

While America lies dormant in a deep isolationist sleep, that will not always be the case. When America awakes, as awake it must to deal with the horrific forces unleashed by Obama’s morally obtuse and utterly incompetent foreign policy, no amount of remorse or rueful apologies (as in the cases of Rwanda, or Srebrenice) will salvage Barack Obama’s legacy from the ashes.

In Syria, these ongoing atrocities must be stopped, now.  The Geneva II Peace Conference can be useful, if at all, only if it establishes as its primary and highest goal the establishment of a ceasefire throughout all of Syria.

The Trenchant Observer

U.S. National Intelligence Estimate points to dire future in Afghanistan

Wednesday, January 8th, 2014

developing

The prospects for the government of Afghanistan following the U.S. pull-out by the end of 2014 are grim, regardless of whether the Status of Forces Agreement is signed by Hamid Karzai and a residual international (or just U.S.) force remains, focusing on training activities and strikes against terrorist targets.

President Obama’s entire foreign policy of the last five years in Afghanistan and the Middle East appears to be in a shambles. The reality that Benghazi was emblematic of is now apparent for all to see: Al Queda and other terrorist organizations have not been controlled, and are now wreaking havoc in Syria and Iraq, while disaster in Afghanistan following the withdrawal of international and U.S. troops seems increasingly probable.

Obama did not keep his eyes on the ball in a fast-moving game. Resolutely refusing to take any effective measures in Syria to halt al-Assad’s war crimes and crimes against humanity, which are continuing, the president failed to understand that Al Qaeda-linked organizations in Syria–and now Iraq–could pose a much more serious and direct threat against the United States and its NATO and Gulf allies than the Taliban ever could.

While he was focused on winding down the U.S. involvement in Afghanistan, while bungling the U.S. withdrawal from Iraq by failing to secure a status of forces agreement (and accepting that failure), Syria was exploding and in the process becoming the new battleground for jihadists–much as Afghanistan had been in the 1980’s and 1990’s.

It is all collapsing now. The president’s response to the new National Intelligence Estimate on Afghanistan has been basically to ignore it while he is on vacation. Even if the U.S. succeeds in hanging on with a residual force in Afghanistan, allowing for a new, more capable and less corrupt leadership to emerge following the April, 2014 presidential election (a possiblle but hardly a likely scenario), the unraveling in Syria and Iraq will continue.

The Geneva II peace conference for Syria, scheduled to begin on January 22, holds very little if any promise for leading to an improvement in the civil war there. The hope and illusion of U.S. and other diplomats has been if that if you could somehow just get the parties to sit down at a table in Geneva, that would by itself lead to progress in resolving the issues of the civil war. This is a chimera, as were all of Kofi Annan’s peace plans which turned out to be but beautiful “castles in the sky”.

The result of the peace conference, like that of all of Kofi Annan’s palaces in the sky, will simply be that al-Assad’s grip on power will remain solidified, with the chemical weapons removal proceeding and with Russian and Iranian and Hesbollah support and even participation, while his commission of war crimes and crimes against humanity continues unabated, as he drives to extirpate all of his opponents, both armed and civilian.

But, for the moment, it is worth just focusing on the National Intelligence Estimate or NIE on Afghanistan.

Obama reacts to challenges with torrents of well-tailored words, but no amount of wordsmithing can obscure the dark realities of Afghanistan and the unraveling of the government toward which the country is heading as the U.S. withdraws. This should come as no surprise, as indeed the previous National Intelligence Estimate in 2012 made clear.

See David S. Cloud, “Insurgents could quickly bounce back in Afghanistan, analysis warns; If U.S. troops fully withdraw next year, a resurgent Taliban could launch serious strikes within months, say officials familiar with a classified assessment,”Los Angeles Times, December 29, 2013 (6:38 p.m.).

Curiously, Ken Dilanian’s and David S. Cloud’s story on the previous National Intelligence Estimate on Afghanistan is no longer to be found on the Los Angeles  Times web site. For excerpts, see The Trenchant Observer, “New National Intelligence Estimate on Afghanistan not optimistic,” January 12, 2012. The original article is cited as follows:

Ken Dilanian and David S. Cloud, “U.S. intelligence report on Afghanistan sees stalemate: The sobering judgments in a classified National Intelligence Estimate appear at odds with recent optimistic statements about the war by Pentagon officials,” Los Angeles Times, January 11, 2012.

The original link was

http://www.latimes.com/news/nationworld/world/la-fg-intel-afghan-20120112,0,3639052.story#axzz2prjVyFldote>

On the 2012 NIE, see also Opinion L.A.: Observations and provocations from The Times’ Opinion staff, “Assessing the Afghan war: Guess what? We aren’t winning,” Los Angeles Times, January 12, 2012.

On the 2010 NIE, see Elisabeth Bumiller, “Intelligence Reports Offer Dim View of Afghan War,” New York Times, December 14, 2010

On the most recent NIE, see also Ernesto Londoño, Karen DeYoung and Greg Miller, “Afghanistan gains will be lost quickly after drawdown, U.S. intelligence estimate warns, Washington Post, December 28, 2013.

The New York Times, the publisher of “All the News That’s Fit to Print”, appears to have not published a report on the latest Afghanistan NIE.

The Trenchant Observer

Outlook for 2014 and beyond: Technology and the creation of increasingly powerful instruments of totalitarian control

Saturday, January 4th, 2014

“Power tends to corrupt, and absolute power corrupts absolutely.”
–Lord Acton (1834-1902)

“All that is necessary for the triumph of evil is for good men to do nothing.”
–Edmund Burke

The onward push of technology in general, and information technology in particular, brings George Orwell’s vision of Nineteen Eighty-Four (1949) and Aldous Huxley’s vision in Brave New World (1932) more clearly, more palpably into view.

For a more contemporary example, see the German film, Das Leben der Anderen (“The Lives of Others”), which received an Oscar nomination for Best Foreign Film in 2006. The movie is available in English, French, and Spanish, as well as the original German.

Technology’s relentless push places new capabilities in government officials’ hands, as new tendencies toward the creation of totalitarian instruments of oppression appear to sweep past all legal, historical and cultural restraints.

The new mantra of governments in democractic countries where minimal oversight and control of government actions still exists to some degree is that, “We do it because we can do it.”

Justifications are not lacking, for zealous officials in their efforts to control terrorist and other threats.

“What if,” they ask, “a nuclear bomb were exploded by terrorists in a major city?” Citing such examples, they conclude that everything is justified, and nothing is excluded.

The requirements of necessity and proportionality that existed in the past are increasingly lost. Thus, to protect society against terrorists, military and intelligence agencies move relentlessly toward doing everything they can to forestall both perceived and inchoate threats.

The relationship between ends and means–of central importance in both domestic and international law–is lost among officials which have succeeded in forging a secret dominion of secret action, where they are not in any meaningful sense held to account. Over time, they secure the acquiescence if not the enthusiastic support of elected government officials, and even of some judges. They develop doctrines such as the “state secrets privilege” which governments invoke to avoid judicial review of the  legality and constitutionality of their actions and programs.

At the same time, the number of individuals employed by the government and its contractors to protect the population and the state grows astronomically. Powerful commercial interests become fused with the technologoical imperatives and the drive to create ever greater capabilities–and to use them.

The national security officials pushing these programs frequently come from intelligence backgrounds where they are not accustomed to conducting their activities in a manner in which they are held to account before the constitution and the law.

Consequently, as we enter 2014 we are being pushed headlong into a future where the state holds in its hands incredibly powerful instruments of totalitarian control. The government, citing the need for secrecy and the classified nature of the information required for legal challenges, does everything it can to avoid effective judicial and constitutional review of its actions. Legal memoranda justifying secret programs are themselves held secret on the theory that their publication would undermine free and vigorous debate among government officials.

The paradoxical result is that while government lawyers are arguably freed up to produce legal justifications that will never see the light of day, citizens and their representative are denied their right to assess whether the government is acting within the law and the Constitution.

In the end, because in a democracy secret legal justifications lack validity and can have no legitimizing force, the government in effect simply fails to offer any legal justifications for its secret operations. The rule of law is broken, as the government operates outside the framework of legal and constitutional accountability which is the bedrock of a democratic state governed by law.

These are matters which are abundantly clear to first-year law students, but not apparently to ranking lawyers within the Executive Branch in Washington.

A government which proceeds in this manner has gone outside the framework of constitutional government under law. Secret laws, secret legal analyses, secret programs and secret activities whose legality cannot be assessed, are deadly assaults on the rule of law.

Yet they continue. They continue with the full backing of President Barack Obama, as revealed through his actions. Here, as elsewhere, we need to watch what the president does, and not what he says.

We assure ourselves that our elected representatives will safeguard our freedoms even in this new world where everything is known by government officials, and large private organizations such as Google and Facebook.

Yet when someone like the Director of the CIA, David Petraeus, is suddenly forced to resign over an affair after his e-mails somehow become known to intellgence officials shortly after the FBI tells him that their investigation has ended and that he will not be the subject of further inquiry, no one insists on knowing what legal authority the FBI used to secure these e-mails.  No one demands to know why FBI Deputy Director Sean Joyce called David Clapper, the head of the NSA, on November 6, 2012 (as election results flowed in), and told Clapper about the affair, or why Clapper immediately called Petraeus and strongly urged him to resign.  Were the e-mails obtained through abuse of an FBI or NSA program? No one dares to focus on this question, or to investigate it tenaciously to the bitter end.  No one is held accountable.

Edward Snowden’s revelations in The Guardian and other leading newspapers throughout the world have opened a window through which we can now see how absolutely without limits U.S. intelligence agencies have conducted surveillance and made copies of the communications of everyone in the world, including those in the United States.

We know these capabilities have been and are used to identify individuals who become the objects of targeted killings by drone strikes, without judicial process, even when as in the Anwar al-Aulaqi case the target is a U.S. citizen.

We trust that these capabilities will never be “misused” by our government officials, while casting a blind eye to how similar capabilities are currently being used by dictatorships to root out and if necessary to destroy their opponents.

We want to think, “It couldn’t happen here.”

But in a sense it is already happening here. These activities–which seem to clearly violate the Fourth Amendment’s prohibition of unreasonable searches and seizures, if the words in the text and two centuries of constitutional interpretation have any meaning–have already had a chilling effect on free speech in the United States, and elsewhere. The precise text of the Constitution is worth recalling:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Writers and journalists already weigh their words carefully, and the topics on which they choose to write. Self-censorship makes insidious inroads into habits of free thought. Many are in denial, and are loathe to admit that they themselves censor what they write.

But engage a writer in a deeper conversation, off-the-record.  Cross-examine a writer as to whether the current climate–resulting from the government’s surveillance operations, its extremely aggressive prosecution of any who have made classified information public, and even reporters to whom such information has been leaked– has affected any of their decisions regarding what to investigate, what sources to use, and how tenaciously to pursue their investigation, and you may be surprised to learn the degree to which writers and journalists are already pulling their punches.

What can be done?

Our answers to this question will be duly recorded by government surveillance programs and operatives. Of that we can be sure. Does that fact in and of itself affect our answers? If it does, extra courage may be required if we are to come up with effective plans of action to defend our liberties.

Still, is there any amount of collective courage that might be summoned, in a country which has nurtured and protected the freedoms guaranteed by the Constitution for over 200 years, to reverse this onslaught of technological and commercial imperatives, growing government secrecy, and the creation of increasingly powerful instruments of totalitarian control?

If we don’t speak out and take corrective measures now, when will we? Can we imagine that it will become easier in the future? In the words of the Talmud, “If not now, when?”

Does anyone remember J. Edgar Hoover, and the abuses he committed with far fewer tools at his command?

How long can we assume that those who hold (or in the future may hold) these extraordinary and growing powers and the power of the state itself in their hands, will always act benevolently and to uphold the rule of law?

The Trenchant Observer

Torture and torture memos pose serious obstacle to confirmation of Carolyn Krass as CIA General Counsel

Friday, December 20th, 2013

The Trenchant Observer noted, quite some time ago, that torture will not be done with Obama, or with us, until we are all done with torture.

See The Trenchant Observer, “The Clock is Ticking: U.S. Application of the Torture Convention,” February 10, 2010.

That is because torture is an international crime, and there is no way it can be simply forgotten without first going through a process involving publication and admission of the facts and a judicial process or transitional justice process under judicial oversight.

It should come as no surprise, therefore, that the Senate Intelligence Committee is now demanding public release of a 6,000 page classified report containing the details of the Bush Adninistration’s torture policy and its implementation, and release of the legal memoranda prepared by the Office of Legal Counsel in the Justice Department purporting to uphold the legality of the use of so-called “enhanced interrogation techniques”.

It is of course not inevitable that this step in the justice process take place at this precise time, but rather only that–in a democracy–it will take place sooner or later.

What is going on in the Carolyn Krass confirmation hearings to be the top lawyer at the CIA is that the Senate Intelligence Committee is — finally — insisting that the secret legal memoranda that were used to justify the use of torture as an official policy of the United States be turned over to the Committee.

Those who apparently had knowledge of the program–CIA Director John Brennan first and foremost among them–are fighting tooth and nail to prevent the public release of the Senate Intelligence Committee report.

See “Editorial: Release the Torture Reports,” New York Times, December 19, 2013.

Much is at stake, including the core priniples of a democratic state governed by law, which require public legal justification of state actions, including those that are carried out in secret.

See

Spencer Ackerman (Washington), “Senate intelligence committee presses CIA to release torture report; Secret 6,300-page report details ‘enhanced interrogation'; “Lawyer nomination brings contention into public view,” The Guardian, December 20, 2013 (11.40 EST).

“The Carolyn Krass nomination to be General Counsel at the CIA, secret legal justifications and memos, and democratic government under the rule of law,” The Trenchant Observer, December 18, 2013 (updated December 19, 2013).

“Senate confirms John Brennan as CIA Director—with tally and breakdown of vote,” The Trenchant Observer, March 8, 2013.

“Brennan’s wristbands, McCain’s hold, and assertions of legality under international law based on secret operations and secret legal memoranda (with links to Brennan confirmation hearing video, transcript, and written questions and answers),”The Trenchant Observer, February 25, 2013.

“Secret Laws, the John Brennan vote, and the rule of law,” The Trenchant Observer, February 24, 2013.

The Senate Intelligence Committee now has an opportunity to take a major step toward restoration of the full rule of law in the United States.

The Trenchant Observer

The Carolyn Krass nomination to be General Counsel at the CIA, secret legal justifications and memos, and democratic government under the rule of law

Wednesday, December 18th, 2013

Should the President of the United States be able to conduct secret operations and activities without revealing to Congressional oversight committes the legal memoranda on which he is relying in making such decisions?

The subject came up, again, in the Senate Intelligence Committee confirmation hearings for Carolyn Krass to become the CIA’s top lawyer, on December 17, 2013.

The cute argument made in defense of the refusal to hand over certain memos relating to torture and other covert activities, prepared by the Justice Department’s Office of Legal Counsel (OLC), is that they could not be turned over because they were “pre-decisional” and needed to be kept secret to protect free debate among the president’s advisors.

This argument (with its echoes of a claim of Executive Privilege) is misleading and obscures the central fact that, in a democracy, congressional committees with responsibility for oversight of covert activities need to know the legal basis on which the president has authorized certain covert or secret activities. Without access to the written legal justifications upon which the president relied, they cannot effectively exercise oversight of the legality of the activities involved.

What the country needs is for top lawyers, from outside the national security coterie of lawyers who have been in the national security loop in the government while they or other lawyers supported torture, extraordinary renditions, targeted executions, and a whole range of covert activities in different countries, to come in and assume the top legal positions at the CIA, the State Department and other key institutions.

Such new lawyers from the outside will bring with them a fresh perspective, and a fresh approach to what is really legal or not. That is both the reason their appointment will be fiercely resisted and the reason such resistance must be overcome. Those in the government who have been working on these issues may well have an inkling of how an unbiased eye might appraise their work.

Only then will the Congress and the American people have confidence in the constitutionality of the covert actions undertaken, and in their legality under international law.

Government of the people, by the people, and under the rule of law cannot abide secret legal justifications for covert activities, whose very occurrence is itself wrapped in secret.

See Josh Gerstein, “Judge orders Obama foreign aid order released, Politico, December 17, 2013 (6:16 p.m. EST).

See also, on the question of whether in a democracy the government can rule by secret laws, upheld by secret courts, and never exposed to the light of day,

“Secret Laws, the John Brennan vote, and the rule of law,” The Trenchant Observer, February 24, 2013

Secret laws, secret legal analyses, secret legal memoranda, and secret judicial decisions, it should be recognized, represent key building blocks for a totalitarian state.

See “The Disposition Matrix”: Is Obama laying the foundations of a future totalitarian state?” The Trenchant Observer, July 18, 2013, (Updated July 27, 2013).

In this article, the Observer explains,

The disposition matrix is just one piece of architecture which when used by others in the future could form part of a totalitarian state.

Other elements would be total surveillance of individuals in society who might pose a challenge, any challenge, to those who control the machinery of the state. Another would be the ability of the government to influence and move public opinion by using personal data to sway voters in electoral campaigns, as the Democrats and Obama did so successfully in the 2012 elections.

Another element would be the use of secret laws and secret legal justifications, and the state secrets privilege, to avoid public debate and public challenges in the courts to governmental actions violating basic constitutional rights (e.g., free speech, due process, Fourth Amendment protection against unreasonable searches and seizures, etc.).

A final element would be control of the flow of information, an enterprise in which Google has been obtaining vast experience, dealing with authoritarian regimes throughout the world.

No nominee to be General Counsel of the CIA or any nominees for to be a top legal official at another agency should be confirmed if he or she is unwilling to commit to sharing with the Senate and House Intelligence Committees the legal basis, expressed in written analyses and memorands, for covert activities and operations authorized and carried out by the President of the United States.

The essential and core elements of a democratic state governed by the rule of law are at stake.

There can never exist such a thing as the secret “rule of law”.

The very concept is an oxymoron. The reality of efforts to use secrecy to avoid accountability before the law (as interpreted not only by the Executive but also by the Congress and by the Supreme Court) represents a mortal threat to any democracy, including the American Democracy.

The Trenchant Observer

The real problem with U.S. policy toward Afghanistan: Hamid Karzai and the CIA

Tuesday, November 26th, 2013

It is sometimes stunning to observe how journalists at leading U.S. newspapers can write about some recent action Hamid Karzai has taken against U.S. interests in Afghanistan, without at the same time recalling for the reader Karzai’s near-certain deep ties to the CIA and the latter’s funding the corruption of his government.

Karzai’s latest outrage is his attempt to introduce new conditions for his signing of the status of foces agreement with the United States that Secretary John Kerry and everyone else thought had just been agreed to last week.

But Karzai decided to raise the ante in his perennial game of high-stakes poker with U.S. military and civilian leaders–saying he wouldn’t sign the (agreed-upon) agreement until after the April 5 elections, which incidentally would give him enormous leverage over the U.S. and other Western countries to ensure that they do not push too hard for really democratic presidential elections in April, or denounce the electoral fraud that will surely take place again, as it did in 2009 when Karzai through the most curious of circumstances was “elected” to be president of Afghanistan.

Without U.S. support, Karzai’s fate might very well be sealed in short order, with the collapse of his government.

We have to ask, “What gives Karzai such brazen assurance that he can defy the U.S. with impunity, without consequences?

For one thing, he has done it for many years and always gotten away with it.

The reason for his impunity from any consequences from the U.S. for repeatedly outrageous and perfidious behavior results, in all likelihood, from the close ties he and his deceased brother have had with the CIA over the years.

See

Matthew Rosenberg, “With Bags of Cash, C.I.A. Seeks Influence in Afghanistan.” New York Times, April 28, 2013.

Rosenberg reported,

KABUL, Afghanistan — For more than a decade, wads of American dollars packed into suitcases, backpacks and, on occasion, plastic shopping bags have been dropped off every month or so at the offices of Afghanistan’s president — courtesy of the Central Intelligence Agency.

All told, tens of millions of dollars have flowed from the C.I.A. to the office of President Hamid Karzai, according to current and former advisers to the Afghan leader.

“We called it ‘ghost money,’ ” said Khalil Roman, who served as Mr. Karzai’s deputy chief of staff from 2002 until 2005. “It came in secret, and it left in secret.”

The C.I.A., which declined to comment for this article, has long been known to support some relatives and close aides of Mr. Karzai. But the new accounts of off-the-books cash delivered directly to his office show payments on a vaster scale, and with a far greater impact on everyday governing.

“The biggest source of corruption in Afghanistan,” one American official said, “was the United States.”

See also

Alissa J. Rubin, “Departing French Envoy Has Frank Words on Afghanistan,” New York Times, April 27, 2013.

Michael Kelly, “The CIA Has Paid Tens Of Millions Of Dollars To The Afghan President’s Office Over The Last Decade,” Business INsider, April 29, 2013 (12:34 AM).

Dexter Filkins, Mark Mazzetti and James Risen, “Brother of Afghan Leader Said to Be Paid by C.I.A.,”New York Times, October 27, 2009.

On CIA payments to other high Afghan government officials, see

“CIA Payments Undercut U.S. Efforts to Strengthen Governance in Afghanistan, The Trenchant Observer, September 2, 2010.

Karzai’s most recent act of perfidy is one he could only be emboldened to undertake as a result of the close relationship he and his family have had with the CIA, and his unbroken string of successes in forcing the U.S. to back down or to accept his outrageous comments and behavior.

Instead of a democratic project in Afghanistan, what we have seen at least since 2004 or 2005 is a cynical policy in which the CIA paid high government officials, even if corrupt or involved in the drug trade, in a policy based on the assumption that good governance would somehow just automatically spring into existence as U.S. and ISAF forces fulfilled their missions and trained the Afghan army and security forces.

We saw how that works with the abject failure of the “government in a box” concept in the Marja campaign in 2010.

See the following articles by The Trenchant Observer:

McChrystal, Petraeus, COIN, and Fixing a Failed Strategy in Afghanistan, June 23, 2010; and

“REPRISE: Reasoning from Conclusions in Afghanistan,” August 19, 2012.

What we are seeing now with Karzai is only the logical consequence of that cynical policy, where U.S. money was used to block the development of truly democratic forces and institutions in Afghanistan, through bags of money delivered to President Karzai and other government officials, off the books, and by other means.

The last exit ramp from the Karzai carrousel was in 2009 when a second round of presidential elections was called, and the U.S. had the power to ensure that it actually be held. But they couldn’t break with Karzai, who undoubtedly has a lot of dirty linen on the CIA, and without whose help and that of Ahmed Wali Karzai, his brother in Kandahar (until his death in 2011), the CIA and the U.S. military probably couldn’t even have operated effectively in the south.

So the endgame is in McLean, and not in Kabul. For the United States to ever have a stable status of forces agreement upon which it can rely, and a chance to ever build a state in Afghanistan that can stand on its own, it will have to be prepared to cut the cord with Hamid Karzai, and to support genuinely free presidential elections in Afghanistan in April, 2014.

Karzai is now acting to forestall that possibility. But the U.S. urgently needs to push back, to change its strategy, and to stop relying on Karzai, if there is to be any point to keeping a residual force in Afghanistan after 2014. To achieve that, Obama will have to negotiate with John Brennan at the CIA in McLean, not with Hamid Karzai in Kabul.

The great risk here is that Karzai is overplaying his hand, and domestic politics in the United States may produce a result which leads to a complete withdrawal of U.S. and international forces from Afghanistan by the end of 2014, if not before, and a withdrawal of the financial assistance which keeps the Afghan state afloat.

In sum, any of a number of events, such as a miscalculation, events on the ground, or political reactions in the United States, could lead to an abrupt American withdrawal, resulting in the same kind of fiasco as has occurred in Iraq, with one difference: the Afghan state would be likely to collapse.

The Trenchant Observer