Archive for the ‘extrajudicial execution’ Category

Order in the World: Things fall apart

Tuesday, September 16th, 2014

One of the wisest and most-experieced journalists reporting on foreign policy, Roger Cohen, who writes an Op-Ed column for the New York Times, has published a thoughtful and deeply pessimistic article on the current state of world affairs.

See Roger Cohen, “The Great Unraveling,” September 15, 2014.

It was the time of unraveling. Long afterward, in the ruins, people asked: How could it happen?

It was a time of beheadings…

It was a time of aggression. The leader of the largest nation on earth pronounced his country encircled, even humiliated. He annexed part of a neighboring country, the first such act in Europe since 1945, and stirred up a war on further land he coveted. His surrogates shot down a civilian passenger plane. The victims, many of them Europeans, were left to rot in the sun for days. He denied any part in the violence, like a puppeteer denying that his puppets’ movements have any connection to his. He invoked the law the better to trample on it. He invoked history the better to turn it into farce. He reminded humankind that the idiom fascism knows best is untruth so grotesque it begets unreason.

It was a time of weakness. The most powerful nation on earth was tired of far-flung wars, its will and treasury depleted by absence of victory…. The nation’s leader…set objectives for which he had no plan. He made commitments he did not keep. In the way of the world these things were noticed. Enemies probed. Allies were neglected.. Words like “strength” and “resolve” returned to the leader’s vocabulary. But the world was already adrift, unmoored by the retreat of its ordering power. The rule book had been ripped up.

It was a time of disorientation. Nobody connected the dots…

Until it was too late and people could see the Great Unraveling for what it was and what it had wrought.

Regarding the weakening of international order, see

“Imagine: The Collapse of International Order: Syria, and Berlin in 1945,” The Trenchant Observer, February 20, 2013.

In this article, we observed,

There is nothing inevitable about international order.

The lessons of two world wars which informed the creation of the United Nations in 1945, and the maintenance of international peace and security for some 60 years, can be forgotten.

It is entirely conceivable that without decisive leadership from either Europe or the United States, the international order that has existed for many decades could start to wobble and even collapse.

And it is nearly impossible to conceive of such leadership emerging any time soon.

The rubble in Syria resembles the rubble in Berlin and the destruction in Germany in 1945, which occurred the last time the international order collapsed.

How bad could it get?

You could have wars like the one in Syria devastating countries in Africa, a nuclear attack on Los Angeles from North Korea, Iran with nuclear weapons and delivery systems within 5-10 years, and Israel surrounded by hostile Islamist states.

Things could fall apart.

Imagine a world without law, without international law governing the use of force which is generally observed and which states seek to uphold when it is violated.

Imagine a  world in which states use force without acknowledging they have acted, and without any obligation to publicly justify the legitimacy of their actions by reference to international law.

That is the direction in which we are heading.

See also,

“A weak American president fails to lead, and anarchy is unleashed upon the world,” The Trenchant Observer, April 29, 2014.

“International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World, The Trenchant Observer, July 17, 2011.

The only path that might lead us out of the present downward spiral of events, the Observer submits, is one that embraces the fundamental principles of the United Nations Charter, including

(1) the prohibition of “the threat or use of force against the territorial integrity or political independence of any state”(Article 2 paragraph 4),

(2) except in exercise of “the inherent right of individual or collective self-defense” in the case of an “armed attack” (Article 51),

(3) and the international protection of human rights (Preamble and Aricle 55 (c) of the U.N. Charter, Universal Declaration of Human Rights, U.N. Covenant on Civil and Political Rights, and many other human rights treaties).

That is the best starting point for halting and reversing the current process of a collapsing world order. If anyone has a better idea, let him or her come forth and state it.

Without a renewed dedication to upholding these cornerstone principles of the United Nations Charter, and international law, international order becomes increasingly difficult to conceive.

The world’s citizens, and their governments, must rededicate themselves to upholding these bedrock principle of international law, if international order is to endure.

The Trenchant Observer

The qualities that are needed in a new CIA Director, Part I (with video links to Feinstein Senate speech and Brennan rebuttal)

Thursday, March 13th, 2014

(Developing story–check back for updates over the next few days)

John Brennan’s battle with the Senate Intelligence Committee over the Torture Report

Given his past associations with Bush’s torture and other scandalous programs, and his role in overseeing White House targeted killing lists and ensuing drone strikes with the president’s approval and/or participation, John Brennan should never have been confirmed as Director of the CIA.

Now he has become both the symbol of a rogue CIA and the primary obstacle to getting control of the agency and bringing it back under the supervision and control of a democratic state governed by law. Under the Constitution’s separation of powers, that supervision is the responsibility of both the president and the congress, including in particular the Senate Intelligence Committee which is chaired by Senator Diane Feinstein (D-California).

She has now delivered an extraordinary speech on the floor of the U.S. Senate in which she lays out in detail the obstruction her committee has encountered in dealing with the CIA, particularly in connection with the drafting, declassification, and publication of a 6,000 word report on the CIA’s involvement in George W. Bush’s torture program, euphemistically referred to as one of “enhanced interrogation techniques”, or as Brennan referred to them in his Senate confirmation hearings, “EIT’s”.

For background on Brennan and his confirmation hearings, see the following article and the articles cited in it:

“Torture and torture memos pose serious obstacle to confirmation of Carolyn Krass as CIA General Counsel,” The Trenchant Observer, December 20, 2013.

As noted below, the Krass nomination was approved by the Senate Intelligence Committee on March 4, 2014.

It is difficult to imagine how John Brennan can continue to lead the CIA, now that he is involved in a very public and bitter dispute with the Senate Intelligence Committee and its Chair, Senator Feinstein–over matters that go to the very heart of what constitutes democratic government under the rule law.

Brennan’s hubris was once again revealed as he immediately gave a TV interview in which he contradicted Senator Feinstein.

Despite his extraordinarily close relationship with President Obama, to whom he served in many respects as a mentor and guide to the secret world of intelligence operations, Brennan should begin looking for a new job.

Russia’s aggression against the Ukraine and military seizure of the Crimea has been a wake-up call for Washington, demonstrating again how international law is important after all, particularly in terms of setting precedents, and of mobilizing coalitions and generating international support for collective action.

Russian intervention in the Ukraine has underlines the fact that unsanctioned violations of international law weaken its authority, and even its most important provisions including the prohibition of the illegal threat or use of force against the territorial integrity or political independence of another state.

It is now time for the United States to put its rogue actions behind it, and to bring its policies and actions into compliance with international law.

Brennan is a symbol and defender of these rogue policies from the past, and doesn’t fit the new requirements of the job. To cite but one example, at his confirmation hearings, he was unable to bring himself to admit that “waterboarding” constitutes torture.

A new kind of leader is needed at the CIA.

Links to Videos and Transcripts

For links to the video and transcripts of Senator Feinstein’s speech on the Senate floor, and Brennan’s response, see:

(1) “Sen. Feinstein Accuses CIA of Searching Congressional Computers,” C-SPAN, March 11, 2014. (CLIP FROM MARCH 11, 2014, Senate Session, Part 1, with informal transcript).

The head of the Senate Intelligence Committee says the CIA improperly searched a stand-alone computer network established for Congress as part of its investigation into allegations of CIA abuse in a Bush-era detention and interrogation program. Sen. Dianne Feinstein of California defended her committee’s work and challenged the CIA on Tuesday as she sought to set the record straight amid various reports of disputes between Congress and the agency.

For the YouTube video, click here.

(2) “CIA Director Denies Spying on Senate Intel Committee” NBC News, March 11, 2014 (with video link).

(3) The Senate Intelligence Committee approved the nomination of Carolyn Krass to be General Counsel of the CIA on March 4, it was announced on March 6, 2014, by a vote of 13-2. If approved by the full Senate, she will replace acting General Counsel Robert Eatinger, who has been at the center of a number of controversial issues and decisions related to the torture program.

The Qualities Needed in a New CIA Director

(To be continued)

The Trenchant Observer

Der Scharfsinniger Beobachter
L’Obervateur Incisif
El Observador Incisivo

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

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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

REPRISE: Veterans’ Day, 2011: “Where have all the flowers gone, long time passing?”

Monday, November 11th, 2013

First published, November 11, 2011

My uncle died in a field in northern France with a German bullet in his head. To him, and all the other veterans of America’s wars, I am immensely grateful for his, and their, sacrifice.

The Vision of Peace After World War II

At the end of World War II, the leaders of the world had a clear vision of the horrors of war, and acted with resolution to bring wars to a halt through the creation of the United Nations in San Francisco in 1945, and by codifying the international law governing the use of force in Article 2 paragraph 4 and Article 51 of the U.N. Charter. Article 2 paragraph 4 prohibited the use of force against the territorial integrity or political independence of members of the organization, a prohibition later extended to include all states. Article 51 provided for an exception in the case of an “armed attack”. These provisions have become customary international law and, importantly, also aquired the status of jus cogens or peremptory law from which there can be no exception or derogation by agreement.

A Vision of Perpetual War

Unfortunately, President Barack Obama and the United States are currently embarked on a policy based on the assumption of perpetual war. The implementation of this policy includes targeted assassinations through drone strikes and other means, the establishment of new drone bases throughout the northern part of Africa, the Middle East, and South Asia, and the development of new generations of drones some of which are as small as insects.

This policy has been implemented with little regard for the international law governing the use of force, and even less regard for the duty of the United States to contribute to the development of international law and institutions that can help ensure the security of the United States and other countries in the future.

These actions indicate that the United States has no current vision of peace as an overriding goal to be achieved, and no coherent strategy for actually achieving this objective.

Without the goal of peace, we are not likely to take the actions necessary to achieve peace, or to give those actions the urgent priority they should receive.

Where have all the flowers gone, long time passing?

In these circumstances, one is reminded of Pete Seeger’s famous song entitled “Where have all the flowers gone?” For the lyrics, click here.

Pete Seeger’s performance of this song is available on YouTube here.

See also, pasquetflowerponderings.blogspot.com, “Grandpa’s War – A Veteran’s Day Post,” November 11, 2011, which contains recollections of America’s recent wars, and a link to a clip of Pete Seeger singing ” Where have all the flowers gone” with a moving montage of photographs evoking American experiences of war, created by the TheSpadecaller in 2008.

Joan Baez, in a more recent performance of the song, can be found on YouTube here.

Marlene Dietrich’s recording of this song in English is also found on YouTube here.

For Dietrich’s performance of the song in French, see “Qui peut dire ou vont les fleurs?” here.

For her performance the German version of this song, see “Sag mir wo die Blumen sind”, here.

Marlene Dietrich, in a version of perhaps her most famous song, “Lili Marleen”, written in 1915 and later a hit among troops on both sides during World War II, takes us back to November 11, 1918 and the terrible war that preceded the armistice on that day. Her recording of the song, in English, is found on YouTube here. The original German version of the song is found here.

Obama’s Vision of Perpetual War and International Law

In his Nobel Prize Acceptance Speech in Oslo, on December 10, 2009, President Obama said:

In the wake of such destruction (World War II), and with the advent of the nuclear age, it became clear to victor and vanquished alike that the world needed institutions to prevent another world war. And so, a quarter century after the United States Senate rejected the League of Nations – an idea for which Woodrow Wilson received this prize – America led the world in constructing an architecture to keep the peace: a Marshall Plan and a United Nations, mechanisms to govern the waging of war, treaties to protect human rights, prevent genocide, restrict the most dangerous weapons.

I do not bring with me today a definitive solution to the problems of war. What I do know is that meeting these challenges will require the same vision, hard work, and persistence of those men and women who acted so boldly decades ago. And it will require us to think in new ways about the notions of just war and the imperatives of a just peace.

We must begin by acknowledging the hard truth: We will not eradicate violent conflict in our lifetimes. There will be times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified.

To begin with, I believe that all nations – strong and weak alike – must adhere to standards that govern the use of force. I – like any head of state – reserve the right to act unilaterally if necessary to defend my nation. Nevertheless, I am convinced that adhering to standards, international standards, strengthens those who do, and isolates and weakens those who don’t.

Closely parsed, these statements are full of contradictions, as when President Obama affirms:

(1) “We will not eradicate violent conflict in our lifetimes. There will be times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified.”
(2) “To begin with, I believe that all nations – strong and weak alike – must adhere to standards that govern the use of force.”
(3) “I – like any head of state – reserve the right to act unilaterally if necessary to defend my nation”; and
(4) “Nevertheless, I am convinced that adhering to standards, international standards, strengthens those who do, and isolates and weakens those who don’t.”

Affirmation (1) accepts violent conflict as inevitable. (2) states that all nations must adhere to the norms that govern the use of force. (3) states that he, the president, “like any head of state”, reserves the right to act unilaterally if necessary to defend his nation; and (4) states he is convinced adhering to “international standards” strengthens those who do.

These contradictions in Obama’s thinking, it is submitted, have contributed to the incoherence of U.S. foreign policy, particularly when measured against the requirements of international law, and the historical burden of strengthening international law and building better international institutions, which is no less important today than it was in 1945.

Reading these excerpts and the whole speech reveals that the president does not have a clear vision of peace as the goal, or a strategy on how to achieve that goal. While he pays lip service to observing international law, he insists that he has the paradoxical right–”like any head of state”–to violate it if necessary, in his view. So much for the concept of international law governing the use of force.

Without the clear and overriding goal of peace or a strategy for achieving peace, it is hard to see how we and other nations can view as the highest priority taking the steps necessary to achieve peace.

President Obama and the United States currently seem to have no overarching vision of peace, or strategy for achieving peace. As a result, their policies and actions are not guided by the pursuance of this goal in a strategic sense, but rather only by the demands of meeting with expediency the challenges of the moment.

By way of contrast, consider, if you will, the vision of the founders of the United Nations in 1945, particularly as set forth in the Preamble and Articles 1, 2, and 51 of the Charter.

We in the United States, like citizens in other countries, need a strong vision of peace and a coherent strategy for achieving it. Consequently, we need a president who has such a vision, and is guided by it.

The Trenchant Observer

Next Steps: Obama, like a deer caught in the headlights of an oncoming car, must now take steps to deal with the Syrian crisis—ALL OF IT

Thursday, August 29th, 2013

The publication by the U.K. on August 29 of a summary of its legal justification for taking military action against Syria is a most welcome development. It also highlights the ad hoc and uncoordinated nature of President Barack Obama’s and his administration’s decision making on Syria.

Obama, like a deer caught in the headlights of an oncoming car, said publicly yesterday that he had not yet decided whether to take military action against Syria–a declaration which seems disingenuous at best, particularly as David Cameron was going before the House of Commons to secure approval for undertaking such action.

Whether or not he has taken a decision to use military force, Obama has not articulated a clear diplomatic and military strategy regarding Syria within which the proposed military actions would make sense. Moreover, the details of such actions–however unwisely–have been and are being discussed widely and in detail by government officials in background conversations with reporters.

Obama is like a football player who, excited about playing in a championship game, forgot to bring his shoulder pads to the locker room. Now he needs to go back and get them and get fully suited up for the game.

Given the delays being caused by David Cameron’s difficulties in the House of Commons, Republican demands that Congress play a role, and the fact that it will take still some days before the U.N. chemical weapons inspectors depart Syria and come up with a preliminary report of their findings, Obama needs to carefully consider and take the following steps:

1. Think through a coherent strategy toward Syria;

2. Develop a narrow but cogent legal justification under international law for military actions that may be taken pursuant to that strategy;

3. Develop a broad and strong coalition among NATO allies and allies in the Arab countries and other civilized nations in the world that will support, and to the extent that can be achieved, participate in any military actions that might be taken;

4. Develop support for a U.N. Security Council Resolution which, even if vetoed by Russia and possibly China, will enlist the support of the remaining members of the Security Council;

5. Develop broad suport among the other countries of the world who might be persuaded to support such action by voting in favor of a General Assembly resolution; and

6. Secure the support of Republicans, Democrats, and the U.S. Congress for undertaking military action in Syria.

To achieve these objectives, the strength of the U.S. legal case for taking military action will be of vital importance.

And, it turns out that, contrary to what Obama may have thought before (operating in the covert world of secret actions), the U.S. can’t build a strong legal case for just any action, since the views of other countries as to what is permissible under international law are of decisive importance here.

To build a strong legal case, he will need to explain how the military action he and the “Coalition of the Willing” plan to undertake will contribute to halting al-Assad’s commission of war crimes and crimes against humanity, including but not limited to those involving the use of chemical weapons.

All of this will take some time. Time will work in Obama’s favor, if he has a strong case. Time will allow the members of the Security Council to get the U.N. inspectors’ preliminary report on whether chemical weapons were used in Syria last week. Time will help David Cameron in securing Labor Party support for U.K. military action in Syria. Time will allow for the diplomatic efforts that will be required to build a real international “Coalition of the Willing”, including NATO (and in particular NATO members such as Italy), and leading Arab states and other countries.

This process should be allowed to play out for another week or two, but not longer.

Then, when everything is set, the U.S. and its coalition partners should undertake appropriate military action at a time of their own choosing, employing military assets and strategems that have not been previously telegraphed to Bashar al-Assad and the band of war criminals who now run Syria.

If, in the interim, genuine Russian cooperation could be secured for, e.g., a Security Council resolution, under Chapter VII, mandating that Syria dismantle and surrender all of its chemical weapons stocks and programs, under U.N. supervision, then the equation might change.

Otherwise, what is outlined above is what is required. To be done successfully, Obama will have to stop sharing his internal thought processes with reporters and the public, and devote all of his and his administration’s energies to coming up with a viable strategy for Syria, a cogent legal defense of any military action, and the diplomacy necessary to develop support from U.S. allies and other civilized nations in the world.

Despite his best efforts to avoid dealing with what was going on in Syria for over two and a half years, Syria has caught up with Obama. Vital national security interests have become engaged. Now he will have to deal with it, all of it, not just the chemical weapons part or the fact that al-Assad crossed his “red line”.

The Trenchant Observer

For previous articles on Syria by The Trenchant Observer, see the Articles on Syria Page, or click here.

A strong but narrow legal justification for military action in Syria: The key to building a strong coalition

Tuesday, August 27th, 2013

The Necessity and Challenge of Crafting a Strong Legal Justification for Military Action in Syria

President Barack Obama is learning, however belatedly, that other nations take international law seriously, and that the strength of the justification under international law for military action in Syria will be an important factor in determining who will support this new “Coalition of the Willing”.

Here, the United States needs to listen carefully to the legal arguments its allies may put forth to justify military action. After years of covert action, including the targeted executions program which continues, it is not an exaggeration to say that the administration has not manifested a deep understanding of the nuances of the international law governing the use of force, as understood by other countries.

It is striking that, over two years after the civil strife in Syria began, the U.S. is now casting about for legal justifrications for military action against the government of Bashar al-Assad in Syria.

Unfortunately, it is clear that the president does not have the benefit of, or perhaps is simply not listening to, first-rate advice on how best to craft a legal justification for military intervention in Syria.

For example, the president and his administration talk of “punishing” Bashar al-Assad for his use of chemical weapons last week in Syria. That is how a layman might understand the matter, but a sophisticated international lawyer with expertise on the legality of the use of force would immediately point out to the president that there is no right to “punish” another state for past acts, as it is universally recognized that “armed reprisals” are illegal under international law.

Nor, except as discussed below, is there any special, independent right under international law to attack another country, absent Security Council authorization, to deter that country from using chemical weapons against its own population in the future. There could potentially be a legal justification for exercise of the right of self-defense if an attack with chemical weapons against another state were imminent, leaving no time for deliberation. But that is not the case here.

How, then, can military action against the al-Assad regime be justified?

Generally, the threat or use of force against the territorial integrity or political independence of another state is prohibited by Article 2 paragraph 4 of the U.N. Charter. Three exceptions to this norm exist:

1) when military action is taken in individual or collective self-defense unter the terms of Article 51 of the U.N. Charter, when an armed attack” occurs or is immediately imminent, as pointed out above;

2) when the military action is taken under the rubric of regional enforcement action by a regional collective security organization, under Chapter VIII of the U.N. Charter, with the approval of the Security Council in accordance with Article 53(1); and

3) when the military action is taken directly pursuant to authorization by the Security Council under Chapter VII of the U.N. Charter (Articles 39, 41 and 42).

The first of these justifications does not fit the facts of the current case. Any interpretation justifying such action as self-defense would open the door to a similar justification for a military attack on Iran by the U.S. and/or Israel, since the required element of an armed attack would be expanded so far as to swallow up the prohibition of the use of force contained in Article 2(4).

Were Syria, on the other hand, to engage in a series of armed attacks on one of its neighbors, e.g., Turkey, other countries could legally respond to a request for assistance in exercise of the right of collective self-defense under Article 51, but any action taken in exercise of that right would have to be necessary and proportionate in order to bring the original attacks to a halt.

The second justification of “regional enforcement action” under Article 53 of the Charter requires Security Council authorization. In the past, the United States has taken the position that the failure to disapprove any such action after the fact satisfies the requirements of Article 53(1). This was the position taken by the John F. Kennedy administration to justify the imposition of an OAS blockade against Cuba in October, 1962. However, such an interpretation flies directly in the face of the text of Article 53(1), and represents precedents which are perhaps best left in the history books.

Finally, military action against Syria may be undertaken pursuant to the authorization of the Security Council, as occurred in the case of Libya.

However, in Syria Security Council approval is clearly not in the cards, at least not any time soon, in view of previous vetoes by Russia and China of even the mild draft resolution of February 4, 2012.

What justification might still be advanced, then, under these circumstances?

It is important that the legal justification that is advanced do the least damage possible to the prohibition of the use of force contained in Article 2(4), and be narrowly tailored to the circumstances of the Syrian case.

A preliminary point is that Russia appears to have been complicit in the commission of war crimes and crimes against humanity in Syria by its ongoing support and enabling of the al-Assad regime as it continues its commission of these international crimes.

Russian cries of grave violations of the U.N. Charter need to taken with a grain of salt, bearing this fact in mind.

The ultimate question boils down to whether the international community is to remain helpless whenever a permanent member of the Security Council blocks effective action by that body through use of its veto, in circumstances as extraordinary as those existing in Syria today.

The February 4, 2012 draft resolution, for example, was approved by a vote of 13-2, with only permanent members Russia and China voting against. Moreover, the General Assembly has condemned the atrocities of the al-Assad regime in resolutions adopted by overwhelming majorities.

The narrowest legal justification for military action against the al-Assad regime would be that such action is necessary and undertaken in order to protect the population of Syria against the continuing commission of war crimes and crimes against humanity, including but not limited to the use of chemical weapons, by the al-Assad regime.

Moreover, the United Nations in 2005 and 2006 reached decisions establishing “the responsibility to protect”. The Security Council adopted Resolution 1674 in 2006 on the protection of civilians in armed conflict. That resolution explicitly accepted and reaffirmed the “responsibility to protect” civilian populations as stated in the 2005 World Summit’s conclusions. Those provisions stated the following:

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

While an absolutely literal reading of Article 2(4) of the U.N. Charter would appear to prohibit military action against Syria, in the special circumstances of the present case where the government of Syria is not only failing to protect its population against war crimes and crimes against humanity but is itself actively carrying out those crimes, perhaps the best legal justification for military action in Syria would be one justifying action aimed at halting the commission of those crimes.

A further provision would leave open the possibility of Russia and China playing a constructive role in resolving the situation in Syria in the future, by establishing that such military actions are being taken only as provisional measures of protection of the population against the continued commission of war crimes and crimes against humanity by the al-Assad regime, or anyone else. Further, such provisional measures would only continue until such time as the Security Council is able to take effective action to protect the people of Syria against the commission of these crimes.

Such a justification, it is submitted, would limit the precedent established by such military action to the narrowest of circumstances, those represented in the current Syrian case.

It would emphasize the goal of prevention of future harm, eschewing any language of “punishment” or reprisal. It would establish a framework that would permit a resolution of the Syrian conflict over time, and indeed offer Russia and others incentives to join in effective action through the Security Council at some point in the future.

Military action against Syria is a matter of grave importance. It should be backed by a strong but narrow legal justification such as that outlined above, both to assist in forming a coalition of supporters and in order to leave open a path for future collaboration by Russia and others in forging a cease-fire and rebuilding the country.

The president needs to pay attention to his legal justification, and get it right, now–before he acts.

The Trenchant Observer

For previous articles on Syria by The Trenchant Observer, see the Articles on Syria Page, or click here.

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

Thursday, July 18th, 2013

A recent article in The Guardian on Obama’s kill lists and the now highly bureacratized killing machine used to extirpate individuals on the lists, highlights for those who missed it that the kill lists and the bureacratic machinery for using them have now been re-baptized as “The Disposition Matrix”.

This wonderful euphemism is presumably from John Brennan, the president’s teacher and moral guide in all such matters, and now Director of the CIA. Brennan, it will be recalled from his confirmation hearings, preferred to refer to “enhanced interrogation tecniques” (“torture” as defined in the U.N. Convention Against Torture) as “EIT’s”. Presumably, we will soon be referring simply to the “DM” and individuals who were dealt with through “DM techniques”, or maybe just “DMT” for short.

George Orwell wrote of the abuse of language as the sure methodology of totalitarian movements and states. One of the key concepts is to divorce words from any unpleasant images or feelings which they might conjure up.

So, we can see how euphemisms such as “extraordinary rendition” avoid the unpleasant associations of a kidnapping squad which, acting under the authorization of the American president but in flagrant violation of both domestic and international law, grabs someone off the street and “renders” him to a CIA “black site” (secret jail) or to a foreign power where he is likely to be tortured, and held in conditions completely violating his fundamental human rights (right to a lawyer, right to due process, including trial by an independent court, in public, for specific violations of public laws, etc).

Or, how “enhanced interrogation techniques”, or “EIT’s” for short, avoid associated images of a man experiencing drowning as he is waterboarded, or his body and mind are abused in other ways which, if actually described accurately, would call up associated images which in ordinary people produce feelings of physical disgust.

Now, at the pinnacle of our Orwellian linguistic pyramid we have the stunningly opaque yet descriptive euphemism of “the disposition matrix”. This would be a wonderful title for a movie, and undoubtedly will become one.

What is different, however, is that in the past such movies were usually told from the point of view of the victims or the potential victims, whereas in the White House and other agencies the term is used with pride, without self-doubt, by today’s bureaucrats entrusted with the efficient protection of society from terrorists who would do us harm. (The bureaucratization of this killing machine brings to mind other killing machines, and places like Auschwitz and Treblinka.)

Not to worry: Citizens need not be troubled by the images that would come up if factually descriptive words told us exactly what the operations entailed, here the killing of another human being without due process of law (as that term is defined in international human rights treaties and indeed the Fifth and Fourteenth amendments to the Constitution of the United States).

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.

Already Google “filters” what results you see in a search by nationality, language, and algorithms based on your previous search history. One result, even now, is that you are less likely to see press reports and opinion critical of U.S. government actions and policies which are published outside the U.S. (e.g., in England, Canada, or Australia) or in a language other than English. Further, Google has the ability to delay the indexing of blogs or other pages, so that you cannot see critical opinion in a timely manner, in real time.

For example, let’s see how long it takes Google to index this article. See “Do search engines delay indexing of blog posts they don’t like?” The Trenchant Observer, June 5, 2013.

Another way to control the flow of information is to go after its source, for the government to go after its critics, as in the James Risen case, or to intimidate journalists so that they engage in self-censorship. These are old tools typically used by authoritarian regimes. What is different is the magnitude of the threat and its reach as the result of new technological capabilities.

The pieces are not all in place. But they are moving in that direction.

For details on “the disposition matrix”, see

Jonathan S. Landay and Marisa Taylor (McClatchy Washington Bureau), “Experts: Obama’s plan to predict future leakers unproven, unlikely to work,” McClatchey newspapers, July 9, 2013.

Greg Miller, “Plan for hunting terrorists signals U.S. intends to keep adding names to kill lists,” Washington Post, October 23, 2012.

Ian Cobain, “Obama’s secret kill list – the disposition matrix; The disposition matrix is a complex grid of suspected terrorists to be traced then targeted in drone strikes or captured and interrogated. And the British government appears to be colluding in it,” The Guardian, July 14, 2013 (14.00 EDT).

Daniel Byman and Benjamin Wittes, “How Obama’s ‘Disposition Matrix’ Decides The Fate Of ‘Terrorists’,” The Atlantic, January 3, 2013.

See also Oliver Stone and Peter Kuznick, “Obama is laying the foundations of a dystopian future; The US leader’s successors will be able to target anyone, say Oliver Stone and Peter Kuznick,” Financial Times, July 10, 2013 (7:36 p.m.).p

How can we, and the American Republic, survive the personal tragedy of Barack Obama and its nefarious consequences? Obama is the protagonist of a Greek tragedy, the story a would-be hero brought down by a tragic flaw. In his case, that flaw is hubris, unbounded arrogance, and something approaching disdain for the views of those who diagree with him. We are talking of behavior manifested by action, not the endless stream of words issuing from the White House.

He is a president who imagined himself as entering history in the company of such real heroes as Abraham Lincoln, Martin Luther King, Jr., and Nelson Mandela, but who will instead be remembered as the “Bush and Cheney on steroids” who systematically undermined the Constitution in a quest for unlimited power over the lives and fates of others.

In this quest, characterized by secret legal opinions and secret judicial decisions and covert activities, “the covert commander in chief” sought to become and ultimately succeeded in becoming responsible to no one–not to Congress, not to the courts, not to the informed judgments of citizens with access to the truth about government actions, and not to the judgments of other states regarding the legality of his actions and policies under international law.

In view of the above, we must ask ourselves:

How will we ever re-establish the complete and full rule of law in the United States? This will be the most critical question facing Americans for the remainder of Obama’s second term, and perhaps far beyond.

The Trenchant Observer

(Der scharfsinniger Beobachter)
(L’Observateur Incisif)
(El Observador Incisivo)
(O Observador Incisivo)

U.N. security Council “Press Statement” on Syria on June 7–meaningless words, without legal force

Friday, June 7th, 2013

Security Council Press Statement on Heavy Fighting in Al-Qusayr, Syria

The U.N. Security Council issued another “Press Statement” on Syria today, June 7, 2013. The text follows:

7 June 2013
Security Council
SC/11028

The following Security Council press statement was issued today by Council President Mark Lyall Grant ( United Kingdom):

“The members of the Security Council express their grave concern about the humanitarian impact of the recent heavy fighting in Al-Qusayr.

The members of the Security Council call upon the Syrian Government to allow immediate, safe and unhindered access, in accordance with the United Nations guiding principles of humanitarian assistance, for relevant humanitarian, including UN, actors, to reach civilians in Al-Qusayr, in urgent need of assistance, in particular, medical assistance.

The members of the Security Council call upon all parties in Syria to do their utmost to protect civilians and avoid civilian casualties, recalling the primary responsibility of the Syrian Government in this regard. They emphasize that those responsible for violations of applicable international law will be held accountable.”

Another Meaningless “Press Statement” Lacking Any Legal Force

These press statements are dangerously misleading, because they are reported in the news as the U.N. or the Security Council taking some kind of action, when this is not the case.

The Security Council remains deadlocked on Syria. The fact that diplomats accord even the slightest significance to a Security Council “Press Statement”, which unlike a Security Council Resolution lacks any legal force, simply underlines the extent to which Russia has triumphed again in bringing the focus of attention back to the Security Council, and to the hoped-for Geneva Conference now backed by the U.S. and Russia.

Worth noting is that even the “press statement” made no comment regarding the destruction of al-Qusair by al-Assad and Hezbollah forces, or the very significant escalation represented by the introduction of foreign forces from Lebanon into the conflict.

Falling into the Russians’ Trap, Playing the Russians’ Game

The extent to which the members of the Security Council have fallen into Russia’s trap is underscored by press accounts which attribute significance to the fact that Russia allowed a statement to be released this week, whereas it blocked one last week.

That is where the Russians want the attention of the world: on whether they agree to the inclusion of words in a meaningless press statement or not, instead of focusing on the facts on the ground in Syria, and Russian and Iranian and Hezbollah support with arms and matériel and money for al-Assad and his continuing commission of war crimes and crimes against humanity.

Secretary of State John Kerry either did not do his homework before agreeing to sponsor a second Geneva conference on Syria with the Russians, or else caved into the cynical direction of Obama to sponsor a conference with no prospects of success, which no serious expert who has followed events in Syria over the last two years could have seen as bearing the slightest promise.

The Russians and the Chinese have neutered the Security Council insofar as Syria is concerned.

Instead of following the diplomatic dance of what Russia might accept in a press statement, or even a toothless resolution, or what Bashar al-Assad might agree to in terms of going to a peace conference in Geneva, or even the terms of any agreement (which we know he will not keep, as he has never kept an agreement), the civilized nations of the world would be much better advised to focus on events on the ground in Syria, and to get to work on implementing concrete measures including the supply of weapons and the direct use of force, which might actually halt al-Assad’s commission of war crimes and other atrocities.

The Trenchant Observer

The U.N. Commission’s Report on Syria, Obama, and the path ahead with Susan Rice and Samantha Power

Thursday, June 6th, 2013

The release of the Report of the Independent International Commission of Inquiry on Syria is discussed in a previous post. The report details the horrors of the war in Syria, which continue every day.

Anyone interested in what is happening in Syria, and the reponses of the West and the civilized nations of the world, should read this report. The full text of the report is found here.

How should we react to the horrors detailed in it pages?

It would be nice if we could say only, “Meanwhile, America sleeps.”

But we can’t, because the truth is much harsher than that. Barack Obama has in fact looked evil in the eye, and decided to simply look away. To justify this moral fecklessness, the Obama administration says they are “going to work through the Russians”, and work toward a negotiated settlement at a Geneva conference to be held with the Russians–whenever that might be, and as if even getting the opposing sides to the conference table would simply resolve the conflict. One cannot have followed developments in Syria for the last two years and give any credence to the utility of this approach.

The American policy of inaction toward Syria has been one of utter cynicism, resulting from Obama’s incompetence in foreign policy. It reflects a mistaken belief that nothing in Syria is going to affect Obama or America.

Incompetence, moral cowardice, steadfast determination to follow a course that could lead to a mortal threat not only to Jordan and to Lebanon, but also to Israel itself, as Iran acquires nuclear weapons and Egypt becomes an authoritarian Islamic state—this is the current American policy.

It is painful to see the arguments of the last two years repeated with renewed earnestness, as if they were newfound truths, yet spoken with conviction that can only be half-feigned.

One is reminded again of the first stanza of “The Second Coming”, William Butler Yeats’ famous poem published in 1921 following World War I, which reads as follows:

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

What can be said, at the end of the day, in defense of Obama’s policy toward Syria, other than to point out the risks of greater involvement, while downplaying the risks and costs of inaction–which to date include the moral currency of the United States and over 80,000 Syrian lives?

One glimmer of hope has appeared: Obama just appointed Susan Rice to be National Security Advisor, and Samantha Powell to be Ambassador to the United Nations.

Susan Rice has Russia’s number, and has first-hand familiarity with the Russians’ perfidy on Syria over the last two years.  She also has real diplomatic experience, unlike many of ”the Obamians” who have had great influence in the White House on foreign policy up until now. A second positive aspect is that Samantha Power has written about the crimes in Bosnia and Rwanda, and won a Pulitzer Prize in 2002 for her book on genocide, A Problem from Hell: America and the Age of Genocide. She is also the author of Chasing the Flame: Sergio Vieira de Mello and the Fight to Save the World (2008).

The appointment of Susan Rice to be National Security Advisor strongly suggests that Obama will continue to run foreign policy under tight White House control, both generally and with respect to Syria. One can hope that Susan Rice might bring her intelligence and influence to bear on Obama in ways that could actually move him toward changing positions. She is one of a very small group of people he seems to really listen to. Samantha Power has a compelling background, but it must be remembered that she has been in the White House while Obama pursued the policies of the past four years. Moreover, with Secretary of State John Kerry traveling the globe and pursuing a Geneva II peace conference, it is far too early to shift from the pessimism expressed above to a new optimism about future U.S. policy toward Syria.

These appointments will please the liberal foreign policy wing of the Democratic Party. Whether they will make any difference to the human beings suffering the horrors of war in places like al-Qusair and throughout Syria remains to be seen.

The Trenchant Observer