Archive for the ‘internal supporters of human rights’ Category

The West at a crossroads in the Ukraine: “Rechtstaat” or “Machtpolitik”?

Tuesday, May 13th, 2014

Barack Obama, Angela Merkel, and other leaders from the West seem lost in the flow of events in the Ukraine, responding only to immediate pressures. Even when they react, they appear to do so only in a manner marked by pacifism and what can only appear to Moscow (and not only Moscow) as a deep-rooted fear of confrontation with Russia, either through countervailing force or the threat thereof, or through  broad economic sanctions that might actually dissuade Vladimir Putin from his current course.

Like the French and the English following the signature by Eduourd Daladier and Neville Chamberlain of the Munich Pact on September 30, 1938, ceding the Sudetenland to Germany in the face of a planned German invasion the next day, against all evidence the current leaders of the West continue to harbor the illusion that a little bit of aggression and a little bit of annexation will not deflect the current course of history and the enjoyment of “peace in our time”.

The deepest illusion they harbor is the belief that Russia will soon become like a Western European state, and not revert to the ruthless totalitarian state from which it emerged only in 1991, following the liberalizing reforms of Mikhail Gorbacev after 1985.

Such a development does not seem likely, at least not in the foreseeable future in which the leadership of Russia is likely to be controlled by Vladimir Putin and his entourage.

The issue does raise an important further question, however:

How are the policies adopted by the West likely to affect the interplay of domestic political forces in Russia that will determine the kinds of leaders and political forms that will emerge after Putin has left the scene?

A strong argument can be made that if the West seeks to foster the development of democratic forces in Russia which might assume power after Putin, it should respond to Putin’s aggression against the Ukraine in a principled manner, built on commitment to the rule of law. This commitment would need to apply both internationally, through insistance on compliance with basic norms of international law, and domestically, within both Russia and the Ukraine, by insisting on the observance and protection of the fundamental human rights of all individuals in each country.

Such an approach makes sense, because reformers in Russia–and every other country in the world–will take careful note of the values that the EU, the U.S., and other countries actually promote and defend through their actions, and not merely their words.

Robust Western defense of the rule of law will provide them with hope and implicit encouragement. Appeasement and disregard for the protection of the human rights of all Ukrainans would be likely to have the opposite effect.

The larger issue, which seems to escape the short-term calculus of the current leaders of the West, is whether they and their populations are willing to fight for, and make sacrifices for, the rule of law.

Are they willing to make sacrifices and impose sanctions which will also affect their own economies, in order to uphold the rule of law on the international level, to fulfill the purposes and goals of the founders of the United Nations, “to save succeeding generations from the scourge of war”?

Secondly, are they willing to make the sacrifices that may be necessary to uphold and protect fundamental human rights, secured by treaties, the U.N. Charter, and customary international law?

Will they stand up for the protection of the fundamental human rights of all individuals in the eastern Ukraine?

The constitutions of EU member states are founded on the rule of law and the protection of human rights, as is the U.S. constitution and the whole edifice of the European Union, the Council of Europe, and NATO.

At bottom, the critical question in the Ukranian crisis is whether Europe, the U.S., and other civilized countries are still willing to make serious sacrifices in order to uphold the rule of law, or whether appeasement and acceptance of some aggression, some annexation, and acquiescence in widespread violation of fundamental human rights in the eastern Ukraine is the preferred course.

The stark choice, as it was put in Germany in the late 1920’s, is between a world built on the concept of the “Rechtstaat” (democratic state governed by law) or “Machtpolitik”(the politics of military power).

Rechtstaat oder Machtpolitik? Oder?
(Rule of law state or the politics of power? Or????)

The Trenchant Observer

Historical context for current Russian aggression in the Ukriane; The sham “referendum” on May 11, 2014 in the eastern Ukraine

Monday, May 12th, 2014

Russian aggression in the Ukraine: The historical context

For a bracing corrective to the Russian propaganda supporting Russian aggression in the Ukraine, see:

Timothy Snyder, “The Battle in Ukraine Means Everything; Fascism returns to the continent it once destroyed,” New Republic, May 11, 2012.

Timothy Snyder is Housum Professor of History at Yale University. He is the author of Bloodlands: Europe Between Hitler and Stalin. This article is a revised version of an article which appeared in the Frankfurter Allgemeine newspaper.

With news reporting on and from the Ukraine which often is seemingly devoid of historical awareness, or the ability to describe what is really going on in context, Snyder reminds us of who the Soviet Union and Russia were and are, and of Russia’s treacherous attempt now to remake the map of the Ukraine, and Europe, through the illegal use of military force and the annexation of conquered territories.

The sham “referendum” held on May 11, 2014 in the eastern Ukraine

Reporters describe numbers as “election results” of a so-called referendum on greater autonomy in the eastern Ukraine, held on May 14, 2014, which has been organized by Russian invading special operations forces and those who they have empowered and whose actions they still control.

See:

Florian Hassel, “Igor Strelkow, Kommandeur in der Ostukraine; Der Mann hinter der Schreckensherrschaft,” Süddeutsche Zeitung, 12. Mai 2014 (15:06).

“Sein Erfolgskonzept ist “das rechtzeitige Ausschalten einiger Anführer des Gegners bewusst auch außerhalb legaler Methoden”: Oberst Igor Strelkow war schon im Februar auf der Krim, derzeit kommandiert er die Separatisten in der Ostukraine. Wer ist der Mann?”

See also:

Florian Hassel (Donezk), “Konflikt in der Ukraine: Putins Platzhalter im Osten,” Süddeutsche Zeitung, 12. Mai 2013 (19:02).

“Die Schlüsselfiguren der Separatisten in Donezk, Slawjansk und Lugansk sind aus dem politischen Nichts aufgetaucht. Die meisten haben eine zweifelhafte Vergangenheit – aber das unbedingte Vertrauen der russischen Führung.”

Putin’s public call for the referendum to not be held can only be viewed as one further example of his “double game”, yet another treacherous and duplicitous act aimed at confusing and dividing the West and the nations of the EU in order to prevent them from adopting stronger sanctions against Russia for its ongoing aggression in the Ukraine.

Major examples of Putin’s “double game” include Russia’s agreement to the April 17 Statement (Agreement) in Geneva calling for separatists in the eastern Ukriane to lay down their weapons and vacate public buildings they had seized by force, and his repeated statements to Angela Merkel and others that Russian troops were withdrawing from the Ukrianian border when nothing could be further than the truth.

No Western leader should give credence to anything Vladimir Putin or Foreign Minister Sergey Lavrov says, in view of their undisputed record of duplicity.

As for the refendum itself, the following observations are in order:

There was no legally constituted electoral commission.  There were no electoral rolls used to control who voted.  There was no electoral body to which to appeal charges of corruption.  There was no presence at voting tables of different parties.  There were no independent international observers. 

There was no mechanism to ensure the “results” announced by “separatists” (who gained their de facto positions through Russian aggression and the use of force) bear any resemblance to the number of ballots actually cast in favor of the proposal on the referendum.

There was no opportunity for opponents of a “yes” vote to be heard in the media, and those who might have spoken out for a “no” vote reported that they were subject to great intimidation and fear. A number of politicians who opposed the “separatists” were assassinated.

See David Blair (Donetsk) and Roland Oliphant,”The ‘disappeared’ whose voices will be silent in vote on self-rule in Ukraine’s east; Pro-Russian separatists continue to hold a number of prisoners against their will, in a campaign against dissent,” The Telegraph, May 10, 2014 (7:18PM BST).

The question on the ballot was essentially so ambiguous as to be meaningless.

The so-called referendum failed to meet the lowest standards of even the most blatantly corrupt of Soviet and Russian sham elections.

Why Western news media would give any weight to referendum “results” secured under these conditions defies understanding.

The real story was about these factors which rendered the “results” meaningless. But by reporting the numbers again and again, Western media helped give credence to the erroneous belief that the election results had any significance at all, other than to check the box in Vladimir Putin’s step-by-step stretegy in his war of aggression against the Ukraine.

The under-reported real story about the May 11 “referendum”

There is a real story about the gross violations of internationally protected human rights that are underway in the eastern Ukraine, including the right to political participation and free and independent elections, the rights to freedom of the press and freedom of speech, and the right to public order in which the physical integrity of each human being is protected from violation by others, including the rights which protect individuals from the depredations of armed thugs acting in concert with foreign special operations forces who have invaded the country.

The story in the eastern Ukraine is about these human rights violations, and Russian involvement, and not merely about the various steps of Putin’s plan of aggression aimed at subversion of the rights of Ukrainian citizens to the political independence, territorial integrity, and sovereignty of their country.

The Trenchant Observer

Der Scharfsinniger Beobachter
L’Observateur Incisif
El Observador Incisivo

Dare anyone say it? “We applaud the courage of the Ukrainian government and people in defending public order and the sovereignty and territorial independence of the Ukraine.”

Saturday, May 3rd, 2014

In the face of Russian aggression, in the last few days the Ukrainian government has shown great courage in defending public order, and the territorial integrity, political independence and sovereignty of their nation.

Their courageous actions should make the authors of the cowardly responses of the West and the broader international community feel deeply ashamed. For the latter have merely paid lip service to the defense of freedom, human rights and international law, while engaging in a policy of pacifism and appeasement in the face of blatant Russian aggression.

Nor is the duty to act to uphold the U.N. Charter, international law, and the maintenance of international peace and security solely that of the United States and the West. The abstention by Brazil and other countries on the General Assembly resolution condemning the invasion and annexation of the Crimea, for example, will long remain as a black page in the histories of these countries.

The appeasement by the West and other countries is particularly clear with respect to the military invasion and annexation by Russia of the Crimea. These actions have upended the entire postwar international political and legal order. The demands of Western leaders for a restoration of the status quo ante in the Crimea have grown silent, while they have adopted no sanctions which can be realistically viewed as aimed at securing a reversal of the aggression and annexation.

In all communities, the force of law and its deterrent effect weakens when the community whose interests it protects do not act to uphold its norms.

Russia’s invasion and annexation of the Crimea, its attack on the eastern Ukraine through special operations forces and the organization, coordination and direction of pro-Russian militias and armed thugs–taking over public buildings and even towns by armed force, and its continuing threats of military intervention by massing combat-ready troops on the border poised to launch an invasion, have placed the entire postwar military, political and legal order in question in the greatest crisis of this nature since World War II.

Will anyone speak out in praise of the actions of the Ukrainian government, without which Russian aggression would triumph, and the rule of law and protection of the human rights of citizens in the eastern Ukraine would be lost?

Are Western leaders afraid to remind the world each time they speak that Russia has committed aggression in the Crimea and continues fresh acts of aggression in the eastern Ukraine?

Will they not only speak out in defense of international law and human rights, in defense of liberty and the rule of law, but also undertake immediate and concrete measures of a serious nature to come to the defense of the Kiev government and assist it in facing down Russian aggression?

Though Barack Obama and Angela Merkel and other world leaders seem oblivious to the fact, Ukrainian soldiers and security forces are today fighting to uphold the principles of the U.N. Charter and international law which guarantee their security and that of the citizens they represent.

If these leaders can grasp this point, might they not do more, through really significant actions, to aid the Ukraine in its defense of their common values of respect for international law and international human rights?

The future of their countries and of the international political and legal order are in their hands. If they are leaders, and not merely followers of ill-informed public opinions on critical foreign policy matters, can and will they lead?

The Trenchant Observer

Putin’s wager: Russia’s rogue authoritarianism versus fundamental human rights and the existing international political and legal order

Thursday, April 24th, 2014

In a fatal error, Putin challenges the modern postwar international political and legal order

It is historicly ironic, and from Vladimir Putin’s point of view perhaps tragic, that Russia’s crowning achievement at the Sochi Winter Games culminated precisely when the Yanukovych government in the Ukraine began to stumble and fall. On the other hand, Putin had only himself to blame.

Since then, Vladimir Putin has overreached, and made the fatal mistake of undertaking actions that put Russia permanently at odds with the world’s international political, legal and economic order.

While formally created during and at the end of World War II (1939-1945), the system has roots that go back to Hugo Grotius and the Thirty Years’ War of 1618-1648. The idea for the United Nations can be traced back to the Hague Peace Conferences of 1899 and 1907, and the Covenant of the League of Nations and the founding of the League in 1919.

Since the founding of the United Nations in 1945, the system of international law established within the framework of the United Nations Charter, including its bedrock principle prohibiting the threat or use of force against the territorial integrity or political independence of any state, has become the very fabric of international society, constituting principles that have been repeatedly accepted in countless treaties and agreements as binding norms of international law by virtually every country.

Now along comes Russia’s new Dictator to suppress within Russia fundamental human rights such as freedom of the press, freedom of assembly, and the right to a fair trial; to challenge the entire structure of the existing international political and legal order by invading the Ukraine, seizing the Crimea by military force and annexing it to Russia; and now threatening to invade the eastern Ukraine if the government of that country responds to Russia’s initial invasion by special forces and seizure of government buildings by force with its own necessary and legal use of force to reassert its control over its own government offices and territory.

Putin wants Russia to be able to invade the eastern Ukraine with special forces, and then to be able to decry any attempt by the Ukrainian government to restore public order as “crimes” against the Ukrainian constitution. He does so without mentioning his own crimes against the Russian constitution by suppressing civil liberties, or his own use of brutal force in putting down the rebellion in Chechnya–which included the commission of war crimes on a very large scale.

Putin and his lieutenant, Foreign Minister Sergey Lavrov, accuse the Ukraine and the West of violating international law, as they sit on the spoils of Russian aggression in the Crimea, and openly threaten military intervention in the Eastern Ukraine if that country’s government moves with force to restore public order and the ordinary functioning of government institutions.

Like the case of Northern Cyprus, invaded by Turkey in 1967, or East Timor which was invaded and annexed by Indonesia in 1975, Russian invasion and annexation of the Crimea will never be accepted by other nations.

Nor will any further conquests in the eastern Ukraine, or of independent countries which formerly made up the Soviet Union, ever be recognized.

An invasion of the eastern Ukraine will indeed produce results, just not those Putin in his demented shortsightedness seeks to secure.

An immediate result will be stiffer sanctions from the U.S. and the EU, which moreover are likely to grow in intensity over time.

An invasion is highly likely to produce permanent enmity toward Russia in the Ukraine, and to strengthen the desire of Ukrainians, East and West, to join the European Union and, if necessary to protect their independence in the future, to join NATO as well (whatever time may be required to achieve this result).

An invasion is also likely to produce energetic responses from NATO aimed at Russia, if not immediately then at least over the intermediate term. To counter potential Russian aggression, large forces of American and other NATO-country troops are likely to eventually be moved from Germany to forward bases in Poland, Romania, Lithuania, Estonia and Latvia. The current drawdown of American forces from Europe, in time, could be reversed.

Europe will probably also undertake vigorous policies to reduce its consumption of Russian gas and oil, though this may take a few years.

Putin’s wager is that his domestic repression and suppression of freedom of the press, free elections, the right to a fair trial and other fundamental human rights will be a model others will want to emulate, or at least be willing to ignore.

His wager that wars of aggression involving military invasions and the annexation of conquered territories will not matter to other countries, which will be happy to look the other way and continue doing business with Russia, is not likely to be successful in the middle or long term.

To be sure, the slowness with which democracies respond to military challenges may appear to be acqiescence or appeasement in the short term, but in the intermediate to longer term the combined economic and military strength of the U.S., NATO, Japan and their allies will be able to contain Russian military expansionism while depriving Russia of vital opportunities to join the first ranks of nations in a wired and interconnected world.

Finally, Putin’s wager overlooks the vital forces within Russia itself, symbolized by courageous dissidents such as Andrei Sakharov, or even Communist party leaders like Mikhail Gorbachev and Boris Yeltsin. These forces have visions of Russia that are deeply at odds with Putin’s embodiment of autocratic dictatorship at home, and wars of aggression abroad.

Putin’s wager may in fact hasten the day when his greatest fears are realized, the day the Maidan comes to Red Square.

The Trenchant Observer

Poland, where the torch of freedom still burns: Solidarity with the people of the Ukraine

Tuesday, February 25th, 2014

God bless Poland and the solidarity of the Polish people with the people of Ukraine in their struuggle for democracy and the rule of law.

Such solidarity should come as no surprise, as it was the courage of the Polish shipbuilders under the leadership of Lech Walensa in 1981 which triggered a series of events which ultimately led to the fall of the Berlin Wall in 1989, and the breakup of the Soviet Union in 1991.

See:

Klaus Brill, “Polnisch-ukrainische Beziehungen: Anteilnahme in Blau-Gelb,” Süddeutsche Zeitung, 25. Februar 2014 (18:14 Uhr).

>Wie kaum ein anderes Volk in Europa verfolgen die Polen den revolutionären Umsturz in der Ukraine. Tausende beteiligten sich am Wochenende in Städten wie Warschau, Breslau und Lublin an Solidaritätskundgebungen. Dabei ist das Verhältnis zwischen den Völkern historisch keineswegs ungetrübt.

Man hört ihn täglich, und er wirkt sehr entschieden. Der polnische Ministerpräsident Donald Tusk, sonst nicht der Gesprächigste, lässt seit zwei Wochen keinen Tag vergehen, ohne sich zum Geschehen in der Ukraine zu äußern. “Die Annahme, es könnte innerhalb der nächsten Stunden oder Tage zu einem Happyend kommen, ist völlig unbegründet”, warnte er schon vorige Woche. Dann rief er seine Landsleute auf, als Zeichen der Solidarität mit den Nachbarn im Osten abends brennende Kerzen in die Fenster zu stellen. Und am Dienstag appellierte er an die Ukrainer, jetzt nicht vorrangig auf Rache zu sinnen, sondern ihr Land vor dem Staatsbankrott zu retten.

Donald Tusk zieht in dieser Sache mit seinen Landsleuten an einem Strang. Den revolutionären Umsturz in der Ukraine be-gleitet wohl kein anderes Volk in Europa mit so lebhafter Anteilnahme wie die Polen. Der Kulturpalast in Warschau, das höchste Gebäude des Landes, wird seit Tagen nachts in blaues und gelbes Licht getaucht, es sind die ukrainischen Nationalfarben. Auch die Zeitungen schmücken ihre Sonderseiten inzwischen schon routinemäßig mit blau-gelben Streifen.

“Brüder, wir bewundern euch”

Die Gazeta Wyborcza als führendes Blatt des Landes druckte gar eine blau-gelbe Doppelseite mit der ukrainischen Aufschrift “Wir mit Euch” und bat die Leser, sie wie eine Flagge ins Fenster zu hängen. “Brüder, wir bewundern Euch”, lautete der Titel eines Leitartikels von Chefredakteur Adam Michnik, der selber ein legendärer Freiheitskämpfer war. “Die Polen verstehen die Tragik der ukrainischen Geschichte”, schrieb Michnik. “Denn sie kennen aus der eigenen Vergangenheit den Preis, den sie für ihr Streben nach einem freien und würdigen Leben zahlen mussten.”Das ganze Land schwelgt in Solidarität, auch wenn das nachbarschaftliche Verhältnis historisch nicht ungetrübt ist. Im Zweiten Weltkrieg hatten in Wolhynien und Ost-Galizien, zwei Regionen, die einst zu Polen gehörten und seit 1945 Teil der Ukraine sind, ukrainische Aufständische unter deutscher Besatzung Massaker an Zehntausenden polnischen Zivilisten verübt, später kam es zu Gegenschlägen.

In diesen Tagen des Freiheitskampfes auf dem Maidan in Kiew aber tritt dies alles zurück hinter dem Wunsch der Polen, dass auch die Ukrainer die Diktatur endgültig überwinden mögen. Tausende beteiligten sich am Wochenende in Städten wie Warschau, Breslau und Lublin an Solidaritätskundgebungen.

Ukrainische Verletzte in polnischen Krankenhäusern

Man sammelte Geld für die Unterstützung der Nachbarn, und in katholischen Kirchen wurden unzählige Messen gelesen. Mindestens 17 ukrainische Verletzte der Kämpfe in Kiew befinden sich in polnischen Krankenhäusern. Und schon seit längerem bereitet Polen sich nach den Worten seines Ministerpräsidenten Tusk auch darauf vor, notfalls ukrainische Flüchtlinge aufzunehmen.

Der Aktivste der Aktiven aber ist der Außenminister Radosław Sikorski. Er hatte am Wochenende mit seinem deutschen Kollegen Frank-Walter Steinmeier und dem Franzosen Laurent Fabius in Kiew unter dramatischen Umständen verhandelt. Wie er später sagte, nutzte er dabei “alle Argumente, auch die emotionalen aus unserer eigenen polnischen Geschichte”. Der erzielte Kompromiss aber wurde durch den wütenden Widerstand auf dem Maidan und den Fortgang der Revolution überrollt.

Sikorski sieht sich heute von der nationalkatholischen Opposition in Polen angegriffen, weil er auf dem Höhepunkt des Ringens die Kiewer Oppositionellen mit Verweis auf die polnischen Revolutionserfahrungen zur Annahme des Kompromisses gedrängt – mit den Worten: “Andernfalls werdet ihr Kriegsrecht haben, ihr werdet die Armee haben und ihr werdet alle tot sein.” “In wessen Namen hat Sikorski das gesagt?”, fragte daraufhin der polnische Oppositionsführer Jarosław Kaczyński. “Das ist eine sehr weitgehende Drohung.” Sikorski gab trocken zurück: “Es ist leicht, vom Kanapee in Warschau aus zu kritisieren.”

Meanwhile, :in the United States, cold Realpolitik rules in the Obama administration, as the president shows no passion for the cause if freedom in the Ukraine.

See

Peter Baker, “Wary Stance From Obama on Ukraine,” New York Times, February 24, 2014.

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

Christmas reflections: What Obama has taught the American people about Syria

Wednesday, December 25th, 2013

We owe it to the people of Syria to pause for a moment, on this Christmas Day, and bow our heads in shame for what we, the nations of the civilized world, have not done to protect them.

In this regard, the burden Barack Obama will bear in history not only for his inaction, but also for blocking the actions of others, is enormous.

Since 2011, he has taught the American people that the commission of war crimes and crimes against humanity is no longer a matter of grave concern.

He has taught the American people not to act to stop the horrors of Syria, but instead to look the other way.

He has eased any discomfort they might have felt by using the military to make the political argument that using force to halt the atrocities in Syria would be hard.

He has spoken many words about Syria, and offered many explanations of this or that turn in U.S. policy.

In thinking about Obama and what historians will have to say about his policy of inaction toard Syria, however, readers might usefully bear in mind what Theodore Roosevelt had to say when he accepted the 1907 Nobel Peace Prize, about words and deeds:

“International Peace”

We must ever bear in mind that the great end in view is righteousness, justice as between man and man, nation and nation, the chance to lead our lives on a somewhat higher level, with a broader spirit of brotherly goodwill one for another. Peace is generally good in itself, but it is never the highest good unless it comes as the handmaid of righteousness; and it becomes a very evil thing if it serves merely as a mask for cowardice and sloth, or as an instrument to further the ends of despotism or anarchy. We despise and abhor the bully, the brawler, the oppressor, whether in private or public life, but we despise no less the coward and the voluptuary. No man is worth calling a man who will not fight rather than submit to infamy or see those that are dear to him suffer wrong. No nation deserves to exist if it permits itself to lose the stern and virile virtues; and this without regard to whether the loss is due to the growth of a heartless and all-absorbing commercialism, to prolonged indulgence in luxury and soft, effortless ease, or to the deification of a warped and twisted sentimentality.

Moreover, and above all, let us remember that words count only when they give expression to deeds, or are to be translated into them (emphasis added). The leaders of the Red Terror2 prattled of peace while they steeped their hands in the blood of the innocent; and many a tyrant has called it peace when he has scourged honest protest into silence. Our words must be judged by our deeds; and in striving for a lofty ideal we must use practical methods; and if we cannot attain all at one leap, we must advance towards it step by step, reasonably content so long as we do actually make some progress in the right direction.

[Footnote] 2. The “Terror” is a term characterizing the conduct of power in revolutionary France by the second committee of Public Safety (September, 1793-July, 1794), sometimes identified as the “Red Terror” to distinguish it from the short-lived “White Terror”, which was an effort by the Royalists in 1795 to destroy the Revolution.

–Theodore Roosevelt, 1907 Nobel Prize Acceptance Speech, delivered May 5, 1910.

Whenever President Obama speaks of Syria, let us remember these words from Teddy Roosevelt.

Let us also, on this Christmas Day, at least not forget to think of the people of Syria, and to say a prayer that some leader or leaders in the world will find the courage not to talk of peace, but to act with force to halt the Syrian government’s ongoing commission of war crimes and crimes against humanity on a massive scale.

See also the following articles by The Trenchant Observer:

“Syria: As Christmas approaches, the assault on civilization continues,” December 22, 2013.

“60,000 killed in Syria—REPRISE II: The Olympic Games, and the Battle for Aleppo, Begin—Obama’s Debacle in Syria — Update #91 (January 2, 2013),” January 2, 2013.

“The Leopard and the Impala: Putin astutely plays Obama for a chump,” September 12, 2013.

“Moral cowardice in Europe and elsewhere: Bad-faith arguments on Syria by Germany and other countries lacking the courage to act,” September 6, 2013.

“Hommage à Homs: Jacques Prévert, “Barbara” (with English translation); Paul Verlaine, “Ariette III”,” February 25, 2012.

“REPRISE: A prayer for the children of Syria,” December 25, 2013.

The Trenchant Observer

The big picture in Egypt: The referendum on the draft constitution on January 14-15, and the government’s crackdown on demonstrators

Monday, December 23rd, 2013

What is going on in Egypt?

The referendum on the draft constitution to be held on January 14-15, 2014 holds the promise of a transition to democracy in the new charter’s text, while the government has cracked down on demonstrations by sentencing three leading human rights leaders to three years in prison.

The referendum will also be a referendum on the “roadmap” for a transition to democracy set out by the Army and the interim government of Adly Mansour, who signed a restrictive law on demonstrations in late November.

See

Patrick Kingsley (Cairo), “Egypt’s interim president Adly Mansour signs ‘anti-protest law'; Rights groups and lawyers say legislation requiring permission to gather will make legal demonstrations almost impossible, The Guardian, 24 November 2013 (11:27 EST).

The government has, in fact, engaged in a number of actions which appear to be anti-democratic and violative of human rights.

While restrictions and violations of human rights should not be condoned, it may be useful to try to understand the strategy the government seems to be pursuing.

The biggest challenge to the government and the draft constitution does not come from human rights activists, but rather from the Muslim Brotherhood. The November law restricting protests was probably aimed at the onongoing protests by Brotherhood supporters above all.

It is important to the military and the government that the referendum be approved both by a high percentage of voters and by a turn-out with broad participation. They are taking no chances that the Brotherhood might turn the referendum to its advantage.

Once the referendum and the “roadmap” have been approved by Egyptian voters, the transition will move into a new phase. After the new constitution enters into force, human rights advocates will have a stronger set of tools with which to wage their struggle for the rule of law. The landscape will shift.

Significantly, two leading liberal parties have just announced that they will join together, and are also calling on other progressive parties to join them. Moreover, they have come out clearly for the holding of presidential elections prior to national assembly elections, which the draft constitution leaves up to the interim government to decide.

Further, liberal political leaders and parties appear to be moving toward acceptance of General Al-Sisi’s running for president, even pledging their support if he decides to run.

See

AP, “Egypt’s Moussa defends draft constitution; As Egypt’s draft national charter set to be put to referendum in near future, head of outgoing constitution-amending committee defends final version,” Ahram Online, December 10, 2013.

“Raid on Egyptian rights group widely condemned; Egyptian human rights organisations condemn police raid on Egyptian Centre for Economic and Social Rights and detention of its staff,” Ahram Online , 19 December 2013.

Youssef Hamza, “Egypt’s charter referendum will be a verdict on Islamism, The National (UAE), December 21, 2013 (updated December 22, 2013 at 07:46).

“Egypt’s Maher, Adel and Douma sentenced to 3 years in jail,” CoptsUnited, December 23, 2013.

“Two liberal parties announce merger,” Aswat Masriya, December 22, 2013.

Whether General Al-Sisi decides to run for president, and whether if elected he would respect the new constitution’s provisions, or rather use the blunt instruments of state power in an attempt to re-establish the old order, are questions which can only be answered over time.

In order to have a successful referendum in January, the government of Adly Mansour would do well to demonstrate its respect for the fundamental human rights established in the draft constitution, whose approval by the people of Egypt is so earnestly sought.

The short-sighted use of heavy-handed tactics could defeat the government’s goals of achieving a large turnout for the referendum, and the legitimacy a resounding vote of approval could confer.

Egypt’s future stability lies in the balance.

The Trenchant Observer

For updated news on Egypt from Egptian sources, see

Al-Ahram Weekly

Egypt Independent

Egypt Daily News

Aswat Masriya

CoptsUnited: A Newspaper for All Egyptians

Egypt Online (Egyptian State Information Service. The site contains the official text of the army statement of July 1, 2013.

Daily News Egypt

Egypt: Final negotiations and votes in the “Committee of 50″, and its adoption of draft constitution

Wednesday, December 4th, 2013

For an incisive analysis of the final negotiations and deliberations of the “Committee of 50″ charged with with drafting Egypt’s new constitution, see

“On the right track: Gamal Essam Al-Din reviews the final draft of Egypt’s new constitution,” Al-Ahram Weekly, December 4, 2013 (01:38 p.m. ET).

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