Archive for the ‘Justice Department’ Category

New sanctions, the U.S., Russia and the Ukraine: The smartest people in the room are blundering idiots in foreign policy

Monday, April 28th, 2014

The Editorial Board of the Washington Post addressed the contradiction between Russia’s actions and whatis happening on the ground in Ukraine in terms that cut to the heart ofthe matter:

VLADIMIR PUTIN’S assault on Ukraine has been relentless and increasingly
reckless: Forces working with Russian personnel in eastern Ukraine are torturing and murdering opponents and holding international observers hostage. In contrast, President Obama’s response has been slow and excruciatingly measured. New U.S. sanctions announced Monday fall well short of the steps that senior officials threatened when the Russian offensive in eastern Ukraine began three weeks ago.

No wonder that, even as he announced them, Mr. Obama expressed skepticism that they would work. “We don’t expect there to be an immediate change in Russia’s policy,” a top aide told reporters. This official acknowledged that the United States could take steps that would impose “severe damage on the Russian economy” but was holding them back. The obvious question is: Why would the United States not aim to bring about an immediate change in Russian behavior that includes sponsorship of murder, torture and hostage-taking?

–Editorial, “Obama’s half-measures give Vladi­mir Putin little to fear,” Washington Post, April 28, 2014 (1:38 p.m. ET).

The fine-tuned “targeted sanctions” imposed on Russia by the U.S. and the West are like mosqito bites on Putin and Russia’s leaders. Meanwhile, as Europe and America debated which Step II sanctions to impose this week, Russia’s invasion with special operations forces and others under its direction and control continued to spread unrest in the eastern Ukraine, as Kiev increasingly lost authority and control in the region.

Angela Merkel is reported to have told Barack Obama, after a conversation with the Russian president, that Putin is in another world.

But in point of fact it is Barack Obama, and his extraordinarily weak foreign policy team, who are in another world. Their world is one in which a dictator who has invaded and annexed the Crimea, sent special operations teams into the eastern Ukraine to stir up and coordinate unrest and rebellion, and who has 40,000 to 80,000 troops in combat-ready status poised for an all-out invasion, will be deterred by sanctions prohibiting defense exports “that will increase the capability of the Russian military”.

Barack Obama, the highly-touted and self-proclaimed “smartest man in the room”, in foreign policy and when it comes to dealing with Russia is in fact an amateur, one of the more cluelss members of the group in the room.

His fine intellectual distinctions have had no impact in the Crimea, or now in the eastern Ukraine.

Russian decision making is not attuned to or responsive to such fine intellectual distinctions.

While Russia and its followers are assassinating opponents in the eastern Ukraine, and town after town slips from Kiev’s control–as evidenced above all by the refusal of local police to defend local leaders or buildings, or pro-Kiev demonstrators—Obama thinks of his next round of “smart sanctions” targeted at individuals and companies in Russia.

There is no strong evidence that targeted individual sanctions, alone, have ever worked. Obama is betting the future of Europe on the proposition that, with Russia and the Ukraine, they will.

Obama’s and Europe’s policy toward Russia has been flawed from the start, when they failed to react with serious economic sanctions and other measures in response to Russia’s invasion of the Crimea, and again when Russia annexed The Crimean peninsula.

As made clear in the Geneva meeting on April 17, they clearly signaled to Putin that they would accept a return to business as usual despite the annexation of the Crimea, provided Russia committed no further aggression in the esstern Ukraine. Their statements left the impression that only the movement of regular troops in an invasion of the eastern Ukraine would trigger real economic sanctions–the so-called “Step III” sanctions.

The slaps on the wrists that they ordered have had no apparent impact on Putin or Russian leaders.

When the tale is told by historians of how Barack Obama lost the Crimea to Russia, and then the Ukraine, the story will revolve around an incometent foreign policy team, and the deep roots of pacifism and appeasement that guide Barack Obama, and other U.S. and European decision makers.

Obama’s policy of “slap-on-the-wrist” sanctions has failed. He and Europe have failed to deter Russian intervention in the eastern Ukraine, which is currently proceeding.

Unless radical changes are immediately made in the responses of the U.S. and the West, the eastern Ukraine will soon be lost.

These are the fruits of pacifism and appeasement in the face of Russian aggression in Europe.

The Trenchant Observer

Der Scharfsinniger Beobachter
L’Observateur Incisif
El Observador Incisivo

The April 17 Geneva meeting on the Ukraine: Aggressor and appeasers on the road to Munich II

Wednesday, April 16th, 2014

As Russia, the U.S., the EU and Ukraine meet on April 17 in Geneva, it is useful to consider previous analysis and the latest commentary from Germany and the United States.

Essentially, Russia has already committed an “armed attack” against the eastern Ukraine by sending in forces and agents under its control who have conducted armed takeovers of government buildings in a number of cities, particularly in the Donetsk region. This is a flagrant violation of the prohibition against the threat or use of force contained in the bedrock principle of the U.N. Charter, expressed in Article 2 paragraph 4. It is no exaggeration to state that the entire postwar international military and security order rests on observance of this principle, and its vigorous defense whenever it is violated.

This is the second major Russian violation of the principle in the Ukraine, following the invasion of the Crimea and its annexation in March.

A third, ongoing violation of Article 2(4) of the U.N. Charter consists in massing 40,000 combat-rady troops on the border with Ukraine, threatening invasion if the Kremlin’s conditions are not met.

The West and the international community have failed to respond with really serious economic sanctions, and as we write seem prepared to accept the Russian invasion and annexation of the Crimea. Leaders who support the actions that have led to this state of affairs have not thought matters through.

There is still one sanction whose logical basis is absolutely clear, and which the U.S. and the EU should still impose now:

A total ban on financial transactions and doing business with any entity in the Crimea, or with any non-Crimean company or entity engaged in financial tranansactions or doing business with such Crimean companies or entities. This should be a permanent sanction, to be lifted only when the annexation has been undone and the situation returned to the status quo ante.

The sad truth is that the West is now led by a generation of leaders who have little memory of Nazi Germany’s and the Soviet Union’s depredations in the 20th century. They have succumbed to a deeply-rooted pacifism and readiness to accept appeasement in response to aggression.

On April 17, they will sit down with the aggressor to essentially beg the aggressor to halt its offensive activities in the eastern Ukraine, while there seems to be little evidence that they will demand a return of the Crimea to the Ukriane and a withdrawal of Russian forces to the level at which they were in the status quo ante, before the invasion.

These Western leaders are unaccustomed to dealing with diplomats and presidents like Lavrov and Putin who repeatedly and shamefacedly tell blatant lies, orchestrate propaganda campaigns full of lies aimed at inciting civil strife and rebellion in the Ukraine, and launch Russian aggression by “stealth” with “little green men”, who are heavily armed and are in fact either Russian soldiers or directed and controlled by Russian soldiers, or both.

They couldn’t believe the true evil and atrocities they saw in Syria, involving the commission of war crimes and crimes against humanity on a massive scale–with active Russian support, and were unable to formulate actions that would do anything to stop them. Russia learned from this experience.

There is no more reason to expect any progress in Geneva on April 17 than there was to expect any progress at the Geneva II conference on Syria last June, where all hopes proved to be illusory.

The pacifist leaders of the West who are prepared to accept the annexation of the Crimea and the takeover of regions of the Eastern Ukriane by Soviet military aggression, have already traveled well down the road to total appeasement of Putin and the Russian bear.

What the world will look like after that, nobody knows.

For background, see the following articles by The Trenchant Observer:

(1) Russia threatens further aggression against the Ukraine: The response of the West has been a bad joke; Putin must be stopped, April 8, 2014.

(2) The language of actions: Russia, the Ukraine, and the response of the West
April 10, 2014.

(3) Munich II: The meeting in Geneva between the U.S., the EU, the Ukraine and Russia, April 11, 2014.

(4) Kiev caves in to Russian military threats, offering far-reaching concessions in eastern Ukraine; Pacifism and appeasement grip Wasington and Europe; First signs of Russian military intervention appear, as troops on border are poised to strike, April 12, 2014.

(5) Ukraine: U.N. Security Council meeting, latest news reports, and opinion (with link to April 13 Security Council meeting webcast), April 13, 2014. Excerpts:

We should not be fooled by the faux outrage of Russia and its calling of an emergency meeting of the U.N. Security Council today, Sunday, April 13.

Everyone knows who the fox in the chicken coop is, and no one is fooled by the fox’s loud complaints that it is being attacked by the chickens.

While the statements made tonight in the Security Council were informative, they should not distract our attention from what is taking place on the ground, and the actions we need to take to effectively counter ongoing Russian aggression.

For these actions the United States should immediately impose broad and deep sanctions against Russia itself, not merely 38 targeted individuals and two companies (a Russian bank, and the seized gas company of the Crimea). As soon as they can reach agreement, the 28 states of the EU should adopt similar sanctions.

A good start would be an immediate ban on all financial transactions involving the Crimea or companies doing business in the Crimea, and all financial transactions or doing buiness with any companies that are engaged in such activities.

In the forthcoming meeting in Geneva on April 17 with Russian Foreign Minister Sergey Lavrov, the U.S., the EU, and the Ukraine should begin the discussions with an absolute demand for Russia to undo the annexation of the Crimea and to return the situation to the status quo ante existing prior to the Russian invasion.

Latest Commentary from Germany and the United States

(1) Stefan Kornelius (Kommentar), “Moskau als Choreograf der Krise: Putins Druck auf die Ukraine ist übermächtig,” Süddeutsche Zeitung, 16. April 2014.

Es gibt nur einen Weg, eine Katastrophe in der Ukraine abzuwenden: Russlands Präsident Putin muss die Übergriffe seiner Spezialeinheiten und Agenten stoppen und den militärischen Druck von der Grenze nehmen. Die Indizien für den subversiven Einfluss Moskaus sind erdrückend. Die Ukraine soll keine Chance haben.

(2) Florian Eder (Straßburg), “Schwerwiegendste Krise in Europa seit 1945; Moskau, Kiew, die EU und die USA verhandeln am Donnerstag in Genf über eine friedliche Lösung der Ukraine-Krise; Russland rüstet propagandistisch weiter auf; Die Atmosphäre ist frostig,” Die Welt 16. April 2014.

(3) Olexander Motsyk, “Ukraine deserves international support in stopping Russian aggression, Washington Post, April 16, 2014 (5:23 p.m.). Motsyk is Ukraineś Ambassador to the U.S.

(4) David Ignatius, “The cost of Putin’s adventurism in Ukraine, Washington Post, April 15, 2014.

Ignatius reports on the current thinking of U.S. Analyst in Chief, Professor Barack Obama.

(5) Daniel Henninger, “Cold War 2.0, the Videogame: Obama’s uninterest in Ukraine forgets history,” Wall Street Journal, April 16, 2014 (7:13 p.m. ET).

The Trenchant Observer

Der Scharfsinniger Beobachter
L’Observateur Incisif
El Observador Incisivo

To influence Putin: Strong action by the West is required—Analysis and further commentary on the Ukraine

Friday, March 14th, 2014

The Crimea is going ahead with its referendum, on Sunday, on whether it wants to be annexed by Russia. The Russian parliament or Duma is poised to annex the Crimea next week.

Vladimir Putin is now making decisions on the Ukraine only with a small inner circle of hawkish advisers heading the nation’s various security Forces. He is apparently not listening to foreign minister Sergey Lavrov or foreign ministry officials.

There are only two decisions which just possibly might be averted or reversed before they are finally made.

The first is whether to immediately proceed to have the Duma vote to annex the Crimea, following the referendum on Sunday.

The second is whether to continue to stir up strife in the Eastern Ukraine in order to provide a pretext for Russian military intervention beyond the Crimea.

Without the Crimea, pro-Western parties are quite likely to win the Ukrainian national elections scheduled for May 25, resulting in a decisive turn toward the West and eventual membership in the European Union, if not NATO. These factors will inevitably figure in Putin’s decisions in the coming days and weeks.

The last chance to influence these decisions, at least in the short term, depends on the seriousness of the responses of the West to the Sunday referendum in the Crimea.

Step 2 (of 3) of the sanctions response of the EU is likely to be decided upon Monday in Brussels, and next week in Washington. Unless the sanctions are really sharp, including a number of recently-imagined “Step 3″ sanctions, they are not likely to be seen by Putin as anything other than a sign of weakness on the part of Europe and the West.

Paradoxically, the best chance for Europe and the West to avoid a total breakdown in economic and commercial relations with Russia depends on their imposing very stiff sanctions now. If Putin changes course, they can be relaxed.

It should be clearly understood in the West, however, that Obama’s risible statements that there will be “costs” or “consequences” if the Russians don’t back down are probably seen in Moscow as a show of utter weakness.

Obama’s fine intellectual distinctions and diffidence in his choice of words in all likelihood only confirm Putin’s belief that Obama is a weak character, unable even to pull the trigger on military strikes against Syria in response to al-Assad’s crossing His “red line” by using chemical weapons at Ghouta on August 21, 2013 (and actually much earlier, on multiple occasions).

It is time for Obama and Europe’s leaders to speak forthrightly, and to eschew the diplomatic and euphemistic niceties that now make no sense, if they ever did, in dealing with a rogue state which has committed naked aggression against the Ukraine.

Russia has seized part of its territory by military force, employing subterfuge, lies, and “The Big Lie” that Russian citizens and Russian-speaking Ukrainians were the object of threats and attacks against their lives and safety. Moreover, Russia continues to threaten further aggression, while moving troops and engaging in military exercises near the Ukrainian border to back up its threats.

We are no longer dealing with the logic of words and hopes to persuade by logic, in dealing with men who have taken over the territory of another country, and who menacingly threaten to expand the geographical scope of their military intervention.

As suggested here earlier, NATO should not only express receptiveness to the Ukraine’s request for military equipment and intelligence cooperation, made by its prime minister in his meetings with President Obama in Washington on Thursday, but also indicate clearly that the request will be granted if Russia proceeds with annexation of the Crimea.

To forestall further Russian aggression in other parts of the Ukraine, NATO should actively consider and make contingency plans for moving 10,000 to 20,000 troops into the Ukraine, in response to any request from the latter for assistance in exercise of the inherent right of individual and collective self-defense, in accordance with Article 51 of the U.N. Charter.

This is not a time to focus, first of all, on what individual countries might or might not be willing to do, but rather a moment to assess the requirements of the situation if desired results are to be achieved, and to reflect deeply on the consequences of failure.

Above all, it is a time for action.

It is not a time for announcing actions that will or may be taken in the future, but rather the occasion for implementation of really tough and far-reaching sanctions, to take effect immediately or in the shortest time possible.

With armies on the move and Putin caught in the “groupthink” of a small circle of hardline national security chiefs, anything less is not likely to capture his attention.

A further point is of fundamental importance. Only the strongest of sanctions are likely to bolster the position of officials within Putin’s government who have a broader understanding of the world and the dire consequences continuing aggression are likely to bring down on Russia. Strong action by the West is required, above all, to shift the constellation of advisers which surround Putin (and the views they represent), and consequently the flow of information and advice upon which he bases his understanding of the situation and decides to take action.

Thus, to pierce Putin’s delusional bubble, to broaden his sources of information and advice, and to counter the “groupthink” which appears to hold him and his narrow circle of national security advisers in its grip, the West must act forcefully, enacting strong sanctions and taking other hard actions, with immediate effect.

For countries deciding how tough the measures can be which they will take, one final consideration should weigh heavily in the balance. Ukraine gave up its nuclear weapons in 1994 in exchange for guarantees of its territorial integrity, sovereignty, and political independence from the Russian Federation and the United States, guaranteed in the 1994 Budapest Memorandum.

As Ukrainian Prime Minister Arseniy Yatsenyuk eloquently argued at the Security Council meeting on March 13, if Russian military intervention in the Crimea is allowed to stand, no nation in the future will agree to give up nuclear weapons.

Consequently, in addition to the more obvious issues, the nuclear non-proliferation regime hangs in the balance, as do the 5 + 1 talks, and whether Iran becomes a nuclear weapons state.

Recent Opinion and Commentary

For illuminating commentary on the Ukraine crisis, and the long-term impact of Putin’s aggression against the Ukraine both forn him and for Russia, see the following articles:

(1) “Ukraine Crisis: Putin, the Loser”

Nikolaus Blome(Kommentar), “Ukraine-Krise: Putin, der Verlierer,” Der Spiegel, 14 Marz 2014 (11:11 Uhr).

(2) “The Agent in his Labyrinth”

Roger Cohen, “The Agent in His Labyrinth, New York Times, March 13, 2014.

(3) “Obama Has Made America Look Weak”

John McCain, “Obama Has Made America Look Weak (John McCain on Responding to Russia’s Aggression),” New York Times, March 14, 2014.

(4) “Putin’s ‘Honest Brokers’”

Maxim Trudolyubov, “Putin’s Honest Brokers,” New York Times, March 14, 2014.

The Trenchant Observer

Der Scharfsinniger Beobachter
L’Obervateur Incisif
El Observador Incisivo

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

On floor of Senate, Senator Feinstein speaks of grave constitutional violations by CIA (with video link)

Wednesday, March 12th, 2014

(Developing)

See:

Corine Lesnes (Washington), “Menacée par un rapport sur la torture, la CIA soupçonnée de piratage du Sénat américain, Le Monde, 12 mars 2012 (12.03.2014 (Mis à jour à 07h19).

Scott Wilson, “CIA feud with Senate panel puts lack of post-9/11 accountability in spotlight,” Washington Post, March 11, 2014.

Video: Sen. Dianne Feinstein (D-Calif.) spoke Tuesday on the Senate floor for almost 40 minutes about a controversy between the Senate Intelligence Committee and the CIA. Here are the highlights.

“Key moments from Senator Feinstein’s soeech,” Washington Post, March 12, 2014 (video).

Mark Mazzetti and Jonathan Weisman, “Conflict Erupts in Public Rebuke on C.I.A. Inquiry,” New York Times, March 11, 2014.

For background, see also the following article and articles cited therein:

“Torture and torture memos pose serious obstacle to confirmation of Carolyn Krass as CIA General Counsel,” The Trenchant Observer, December 20, 2014.

The Trenchant Observer

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

Friday, March 7th, 2014

Updated March 7, 2014

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

Telephone Calls to Putin

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

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

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

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

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

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

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

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

(Quote from Kissinger)

Trying to Force the Russians to meet with Ukrainian Officials

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

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

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

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

American Efforts to Assert its Leadership in Rsponding to Russia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Summary of Recommendations

In sum, the Observer’s advice is:

1. Stop the telephone diplomacy with Putin.

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

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

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

The Trenchant Observer

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

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

Thursday, February 13th, 2014

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

See

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

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

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

Consider the factors discussed in the previous article reproduced below.

First published on April 7, 2010

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

The Washington Post reports today that,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Trenchant Observer

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

Friday, December 20th, 2013

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

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

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

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

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

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

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

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

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

See

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

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

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

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

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

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

The Trenchant Observer

New York police arrest Indian consular official in apparent flagrant violation of international law (Updated December 19)

Tuesday, December 17th, 2013

UPATE (December 19, 2013)

There is more to this case than first appears.

See

Saurabh Shukla (New Delhi), “Devyani Khobragade case reveals how row over maid’s visa lead to this diplomatic incident,” India Today, December 19, 2013 (updated 09:40 IST).

Juan Cole, “India Flap derives from America’s Gulag Practices and Far-Right Supreme Court,” Informed Consent (blog), December 19, 2013.

Original article published on December 18, 2013

On December 17, the New York Times reported the following:

(An Indian) diplomat, Devyani Khobragade, the deputy consul general in New York, was arrested last Thursday and accused of submitting false documents to obtain a work visa for her housekeeper and paying the housekeeper far less than the minimum legal wage. Indian officials said that Ms. Khobragade was arrested and handcuffed on the street as she was leaving her daughter at school, and that she was kept in a holding cell with drug addicts before she was released on $250,000 bail.

By far the most troubling part for Indians are assertions that Ms. Khobragade, 39, was strip-searched after her arrest. Some Indian newspapers published reports claiming that she was subjected to repeated cavity searches. The Indian national security adviser, Shivshankar Menon, has called such treatment “despicable” and “barbaric.”

The United States Marshals Service, in a statement, confirmed that Ms. Khobragade had been strip-searched, following “the same search procedures as other U.S.M.S. arrestees held within the general prisoner population in the Southern District of New York.” It said she was “placed in the available and appropriate cell.”

The arrest has caused outrage and reprisals in India.

See

Gardiner Harris, “Outrage in India, and Retaliation, Over a Female Diplomat’s Arrest in New York,” New York Times, December 17, 2013.

Narayan Lakshman,”Detention procedures applicable to Khobragade, US clarifies,” December 18, 2013.

Both the arrest and the manner in which it was carried out would appear to be in flagrant violation of international law.

The 1963 Vienna Convention on Consular Relations establishes the following:

Article 41

PERSONAL INVIOLABILITY OF CONSULAR OFFICERS

1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

2. Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this Article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

It is hard to see how the term “grave crime” could be stretched to include the commission of fraud in assisting a house servant to secure a work permit and failing to pay the minimum wage to that house servant.

What were they thinking?

Maybe they hadn’t heard about the case against the Russian diplomats at the U.N.

In early December, 49 Russian diplomats from the Russian Mission to the United Nations were charged with Medicare fraud. However, they were not arrested due to the fact the authorities had been advised they had diplomatic immunity.

See Benjamin Weiser, “U.S. Says Diplomats Defrauded Medicaid,” New York Times, December 5, 2013.

Is this just sheer incompetence on the part of the Obama administration, or what?

It is clearly time for government officials in New York, Washington and elsewhere to be required to take a basic course in international law as a condition of their employment.

And to pass the final exam.

The Trenchant Observer

Obama and…the AP phone records, Benghazi, the IRS, or Syria?

Monday, May 13th, 2013

It’s hard to know which of today’s news stories in the U.S. is of greatest significance. Here are a few of the possibilities:

1. Obama continues stonewalling on Benghazi. Credibility in free fall.

2. Jay Carney has lost all credibility for truthfullness, and should resign.

3. Obama punts on chemical weapons “red line”, plays Russians’ game in Syria–Again! Just like one year ago. Obama unable to think or act strategically. Iran understands Obama’s threats are just words, not backed by action. Nuclear program proceeds.

4. Obama escalates news management operation with assault on freedom of the press in AP phone records affair, with chilling effect. If you publish a story the Obama team doesn’t want circulating, they will come after you and hurt you. Meanwhile, Holder’s leaks’ investigations go nowhere.

5. Benghazi subjected to terrorists attacks–today! Middle East in revolutionary turmoil, while U.S. strategy is in a shambles, or non-existent.

6. Kerry allows self to be humiliated by Putin, waiting three hours to see the czar. He came to Moscow begging, with a hopelessly weak hand on Syria. What did he expect? At least he might have left for the airport, and arrived in Washington before Russia’s shipment of a new air defense system arrived in Syria.

7. Maduro consolidates Chavista take-over through fraudulent elections in Venezuela. U.S. has forgotten where Venezuela is exactly–just somewhere near Cuba.

8. U.S., unwilling to lead in Syria, fosters divisions among allies in the Persian Gulf

9. Taking a page from Nixon, Obama targets political opponents through IRS.

10. Little hope for coherent US. foreign policy strategy and implementing actions. Kerry’s ineptitude in Moscow shows “the gang who couldn’t shoot straight” will continue to call the shots from the White House.

11. Who does President Obama remind you of more, Winston Churchill or Neville Chamberlain?

Upon reflection, perhaps it’s better not to write about any of these stories, at least not tonight. The disaster is too big. A larger canvas is needed.

The Trenchant Observer