Archive for the ‘Justice Department’ Category

Brennan unclear in confirmation hearing as to whether “waterboarding” constitutes “torture” (with transcript)—The John Brennan File #2

Thursday, February 14th, 2013

The transcript of John Brennan’s confirmation hearing, before the Senate Select Committee on Intelligence on February 7, 2012, deserves a very close examination by the Senators and the public before the nominee to be Director of Central Intelligence (CIA Director) is confirmed.

See United States Senate Select Committee on Intelligence, “Open Hearing on the Nomination of of John O. Brennan to be Director of the Central Intelligence Agency,” Washington, D.C., February 7, 2013.

(Members Present: Senators Feinstein, Chambliss, Rockefeller, Burr, Wyden, Risch, Mikulski, Coats, Udall, Rubio, Warner, Collins, Heinrich, King, & Levin)

The following exchange, in a hearing to confirm an official whose job will require that he prevent those under him from engaging in or being complicit in acts of torture, is particularly revealing:

SENATOR LEVIN: Thank you.

Thank you for your willingness to serve here, Mr. Brennan.

You’ve said publicly that you believe waterboarding is inconsistent with American values; it’s something that should be prohibited, and it goes beyond the bounds of what a civilized society should employ.

My question is this: in your opinion, does waterboarding constitute torture?

MR. BRENNAN: The attorney general has referred to waterboarding as torture. Many people have referred to it as torture. The attorney general, premiere of law enforcement officer and lawyer of this country. And as you well know, and as we’ve had the discussion, Senator, the term “torture” has a lot of legal and political implications. It is something that should have been banned long ago. It never should have taken place in my view. And, therefore, if I were to go to CIA, it would never, in fact, be brought back.

SENATOR LEVIN: Do you have a personal opinion as to whether boarding is torture?

MR. BRENNAN: I have a personal opinion that waterboarding is reprehensible, and it’s something that should not be done. And, again, I am not a lawyer, Senator, and I can’t address that question.

SENATOR LEVIN: Well, you’ve read opinions as to whether or not waterboarding is torture. And I’m just — do you accept those opinions of the attorney general? That’s my question.

MR. BRENNAN: Senator, you know, I’ve read a lot of legal opinions. I’ve read an Office of Legal Counsel opinion in the previous administration that said in fact waterboarding could be used. So, from the standpoint of that, you know, I cannot point to a single legal document on this issue.

But, as far as I’m concerned, waterboarding is something that never should have been employed, and, as far as I’m concerned, never will be, if I have anything to do with it.

SENATOR LEVIN: Is waterboarding banned by the Geneva Conventions?

MR. BRENNAN: I believe the attorney general also has said that it’s contrary, in contravention, of the Geneva Convention.

Again, I am not a lawyer, or a legal scholar, to make a determination about what is in violation of an international convention.

–Transcipt, pp. 73-74.

The Trenchant Observer can point to a single document on the issue of waterboarding and torture.

Under the U.N. Convention Against Torture and and Other Cruel, Inhuman or Degrading Punishment or Treatment, the United States, which is a party to the treaty, is obligated to prosecute or extradite individuals found within its jurisdiction who evidence suggests are guillty of torture.

Torture is defined in Art. 1(1) of the Convention as:

…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

There are no exceptions to the prohibition against torture, and superior orders are no excuse. Art. 2(2) and Art. 2(3) provide:

2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Mr. Brennan’s responses to Senator Levin’s question suggest that the nominee to be CIA Director still has a big problem saying the word “torture”.

The euphemistic term “enhanced interrogation techniques”, referred to by Brennan and some Senators in the hearing as “EITs”– in an Orwellian formulation that surpasses even the original– does not wholly occlude the terror involved in waterboarding.

Waterboarding, beyond any scintilla of a doubt, constitutes “torture” under both U.S. and international law. The reservations the U.S. entered upon depositing its ratification of the U.N. convention in no way dilute this statement of fact.

The Convention Against Torture, the Geneva Conventions, and other international law, as well as U.S. law, prohibit the commission of acts of torture by any individual, not just lawyers, with or without the illusory protection of a twisted legal opinion.

If John Brennan doesn’t know that waterboarding constitutes torture and is an international crime, how can he lead the CIA and its employees in a manner that ensures that no acts of torture will be committed or tolerated?

The Trenchant Observer

See also the following previous articles by The Trenchant Observer:

Drone Killings, the Constitution, International Law, and the John Brennan File, February 7, 2013.

Key CIA official involved in Bush torture program criticizes “Zero Dark Thirty” for inaccurate depiction of “enhanced interrogation techniques”
Monday, January 7, 2013

REPRISE: “A time to break silence”: Dr. King on the Vietnam war, and President Carter on America’s human rights violations, January 6, 2013

REPRISE: Consorting with the Devil? The Debate over the Efficacy of Torture, May 15, 2011

REPRISE: “A time to break silence”: Dr. King on the Vietnam war, and President Carter on America’s human rights violations

Sunday, January 6th, 2013

[This is a lengthy article. The reader may wish to read it, and listen to the recordings, in three parts.]

Originally published June 27, 2012 (revised June 28, 2012)

“And I’ve long since learned that to be a follower (of) Jesus Christ means taking up the cross. And my bible tells me that Good Friday comes before Easter. Before the crown we wear, there is the cross that we must bear. Let us bear it–bear it for truth, bear it for justice, and bear it for peace. Let us go out this morning with that determination. And I have not lost faith. I’m not in despair, because I know that there is a moral order. I haven’t lost faith, because the arc of the moral universe is long, but it bends toward justice.”

–Dr. Martin Luther King, Jr., “Why I am opposed to the war in Vietnam,” Sermon at Ebenezer Baptist Church on April 30, 1967.

There is a powerful connection between the April, 1967 sermons on Vietnam of Dr. Martin Luther King, Jr., President Jimmy Carter’s recent New York Times op-ed piece on American human rights violations, and the policies currently being carried out by President Barack Obama. It is important to understand this connection, details of which are set forth below.

I. Jimmy Carter’s Op-Ed in the New York Times, Criticizing America’s Violations of Human Rights

Ex-president Jimmy Carter published an Op-Ed piece in the New York Times on June 24, in which he hashly criticized President Obama, and also former president Bush, for “the widespread abuse of human rights over the last decade, (which) has been a dramatic change from the past, signifying the fact that “the United States is abandoning its role as the global champion of human rights.”

See Jimmy Carter, “A Cruel and Unusual Record,” New York Times (op-ed), June 24, 2012.

Carter continued,

Revelations that top officials are targeting people to be assassinated abroad, including American citizens, are only the most recent, disturbing proof of how far our nation’s violation of human rights has extended. This development began after the terrorist attacks of Sept. 11, 2001, and has been sanctioned and escalated by bipartisan executive and legislative actions, without dissent from the general public. As a result, our country can no longer speak with moral authority on these critical issues.

These policies and actions, he wrote, signaled “a dramatic change from the past”, when the United States exercised bold leadership in securing the adoption of the Universal Declaration on Human Rights by the U.N. General Assembly in 1948, as “the foundation of freedom, justice and peace in the world.” Its adoption, wrote Carter,

…was a bold and clear commitment that power would no longer serve as a cover to oppress or injure people, and it established equal rights of all people to life, liberty, security of person, equal protection of the law and freedom from torture, arbitrary detention or forced exile.

The declaration has been invoked by human rights activists and the international community to replace most of the world’s dictatorships with democracies and to promote the rule of law in domestic and global affairs.

But, he continued,

It is disturbing that, instead of strengthening these principles, our government’s counterterrorism policies are now clearly violating at least 10 of the declaration’s 30 articles, including the prohibition against “cruel, inhuman or degrading treatment or punishment”.

Recent legislation has made legal the president’s right to detain a person indefinitely on suspicion of affiliation with terrorist organizations or “associated forces,” a broad, vague power that can be abused without meaningful oversight from the courts or Congress (the law is currently being blocked by a federal judge). This law violates the right to freedom of expression and to be presumed innocent until proved guilty, two other rights enshrined in the declaration.

He noted further, that

(R)ecent laws have canceled the restraints in the Foreign Intelligence Surveillance Act of 1978 to allow unprecedented violations of our rights to privacy through warrantless wiretapping and government mining of our electronic communications…

Carter harshly criticized the use of drone attacks, writing that

Despite an arbitrary rule that any man killed by drones is declared an enemy terrorist, the death of nearby innocent women and children is accepted as inevitable. After more than 30 airstrikes on civilian homes this year in Afghanistan, President Hamid Karzai has demanded that such attacks end, but the practice continues in areas of Pakistan, Somalia and Yemen that are not in any war zone. We don’t know how many hundreds of innocent civilians have been killed in these attacks, each one approved by the highest authorities in Washington. This would have been unthinkable in previous times.

These policies were counterproductive in terms of American foreign policy, he observed, noting that

Top intelligence and military officials, as well as rights defenders in targeted areas, affirm that the great escalation in drone attacks has turned aggrieved families toward terrorist organizations, aroused civilian populations against us and permitted repressive governments to cite such actions to justify their own despotic behavior.

The 39th president of the United States also criticized the fact that the Guantánamo Bay facility remains open, with 169 prisoners still detained there. While “about half have been cleared for release,” their chances of ever obtaining their freedom are slim, he asserted.

Some of those being tried have been tortured, Carter noted, writing:

American authorities have revealed that, in order to obtain confessions, some of the few being tried (only in military courts) have been tortured by waterboarding more than 100 times or intimidated with semiautomatic weapons, power drills or threats to sexually assault their mothers. Astoundingly, these facts cannot be used as a defense by the accused, because the government claims they occurred under the cover of “national security”. Most of the other prisoners have no prospect of ever being charged or tried either.

In conclusion, former president Carter argued,

At a time when popular revolutions are sweeping the globe, the United States should be strengthening, not weakening, basic rules of law and principles of justice enumerated in the Universal Declaration of Human Rights.

U.S. violation of international human rights is counterproductive, he asserted, because it “abets our enemies and alienates our friends.” As “concerned citizens”, we must now persuade Washington “to reverse course and regain moral leadership according to international human rights norms that we had officially adopted as our own and cherished throughout the years.”

This forceful critique of American human rights violations made by Jimmy Carter, the American president most closely associated with U.S. leadership in the field of human rights, will undoubtedly have a significant impact over time, both abroad and at home.

II. Dr. King and Vietnam: A Time to Break Silence—Bearing the Cross for Truth, Justice and Peace

When I read ex-President Jimmy Carter’s op-ed piece in the New York Times on June 24, calling out President Barack Obama for his human rights violations, both domestic and foreign, I was reminded of the afternoon I was driving in my car and first heard Dr. Martin Luther King, Jr., also a Nobel Prize winner, deliver a powerful speech criticizing President Johnson and his conduct of the Vietnam war.

The feeling then, in 1967, was one of enormous relief. At last there was a figure of great and almost unparalleled national and international prominence, the winner of the Nobel Peace Prize in 1964, who had the courage to speak the truth as he saw it, according to his best lights, and his deep faith, however unpopular that truth might be.

Martin Luther King, Jr. gave two sermons on Vietnam in April, 1967. The first, “Beyond Vietnam: A Time to Break Silence” is a detailed but courageous speech that draws on many of the details of the history of Vietnam and the war which were familiar to his audience. It is delivered in a calm, reasoned tone. The second, a sermon delivered at the Ebenezer Baptist Church in Atlanta where he was pastor, is a strong sermon delivered in the cadences of the powerful preacher who King was. Entitled, “Why I am opposed to the war in Vietnam,” it hits the main points of the April 4 sermon, with greater emotional emphasis. It is probably more accessible to readers and listeners not familiar with the history and details of the Vietnam conflict. Links to both are found below. See

Rev. Martin Luther King, “Beyond Vietnam: A Time to Break Silence,” April 4, 1967, at a meeting of Clergy and Laity Concerned at Riverside Church in New York City).

The text is found here.

The audio is found here.

David Bromwich, “Martin Luther King’s Speech Against the Vietnam War,” Antiwar.com, May 16, 2008 (summary and analysis, with extensive excerpts).

See also:

Martin Luther King, Jr., “Why I am opposed to the war in Vietnam,” Sermon at the Ebenezer Baptist Church, April 30, 1967. Excerpts from the audio and text are found here.

The complete audio (in RealAudio) is found here.

The original written text is found here.

NOTE: The two sermons are often confused, with the audio for the April 30 sermon often being attributed to the April 4 “Beyond Vietnam” sermon.

“The Obamians”, as James Mann has termed President Obama and his younger group of closest foreign policy advisers, in his new and revealing book on the foreign policy team in the White House, would especially benefit from listening to King’s speech, and his April 30, 1967 sermon. Their eyes reportedly glaze over when other advisers, usually older, refer to the Vietnam war and its lessons. They, and particularly the most important Obamian, President Obama himself, should listen to Martin Luther King’s speech and sermon, and reflect on what they hear, taking the moral authority of the speaker into account.

They might also bear in mind and take to heart the famous dictum,

“Those who cannot remember the past are condemned to repeat it” (George de Sanayana, from “Life of Reason I”).

Mann’s book is fascinating. See

The Obanians: The Struggle Inside the White House to Redefine American Power (Viking Penguin/The Penguin Group, 2012)

Dr. Martin Luther King, Jr. was assassinated on April 4, 1968, exactly one year after his speech or sermon entitled, “”Beyond Vietnam: A Time to Break Silence.”

III. Jimmy Carter’s Contribution to Human Rights

Jimmy Carter’s op-ed piece should grab the public’s attention in the United States.

But the coverage in the U.S. press suggests the public may have become far too accustomed to the targeted killings, or “assassinations” in the words of Jimmy Carter–which is the correct term when the killings are conducted outside the framework of international law, far too accustomed to the debate over the efficacy of torture, far too complacent over the violation of bedrock principles of the U.S. Constitution, to pay much attention.

The press reaction in different countries is quite revealing, even if it takes a lot of work to uncover, due to the “filter bubble” Google and most other search engines now use, displaying search results only from our own country and in our own language. If you are in the United States and Google “Jimmy Carter” you won’t see the incisive articles published in the United Kingdom in The Guardian, The Telegraph or The Independent. You’ll see articles and blogs published in the United States.

We now live in information ghettos, where the opinions of those in other countries are filtered out of our consciousness. Moreover, due to the use of our previous search histories to filter the results that are displayed in, e.g., a Google search, within this subset of news and opinion we may even see news that leans more to the left or the right, depending on who we have read in the past.

Jimmy Carter has demonstrated in his op-ed that there are still Democrats in the United States with the courage to defend our civil liberties, and to fight for a foreign policy based on furthering human rights and democracy abroad, and compliance with the basic norms of international law, including those relating to human rights.

When historians of the future write about this period, they may mention Jimmy Carter’s op-ed piece, and wonder how the people of this time in the U.S. went along with such egregious violations of the U.S. constitution and the most fundamental norms of international law.

Now the question is whether others will have the courage to speak out, even if the president committing these violations is from their own party–and the party they want to win in the November elections.

It is a stark moral choice. Listen to the audio of Martin Luther King’s April 4, 1967 speech and especially to the audio of his April 30, 1967 sermon at Ebenezer Baptist Church. He speaks of stark moral choices.

One is reminded not only of Martin Luther King, Jr., but also of those other defenders of civil liberties and democracy, such as Nelson Mandela, Mahatma Ghandi, Vacslav Havel, and Lech Walensa. One is also reminded of humanity’s project of building international peace through the establishment of international law and institutions, and compliance with their norms.

In the field of human rights, President Jimmy Carter was one of those men. His support of human rights started a process in Latin America (and elsewhere) which led to the end of dictatorships and authoritarian rule, and the gradual consolidation of democracy throughout the hemisphere.

His push for human rights led to the ratifications of the American Convention on Human Rights which resulted in its entry into force on July 18, 1978. His support of the Inter-American Commission on Human Rights, and the establishment of the Inter-American Court of Human Rights in San José Costa Rica, pursuant to the provisions of the American Convention, strengthened in the Americas a system of international protection of human rights similar in form to that established in Europe under the European Convention on Human Rights, in force since 1953.

Regrettably, the United States has never ratified the American Convention on Human Rights, which President Jimmy Carter signed and submitted to the Senate for ratification. Nonetheless, the U.S. is still bound to observe the rights set forth in the American Declaration of the Rights of Man, adopted by the members of the newly founded Organization of American States in Bogotá in April, 1948, months before the adoption of the Universal Declaration of Human Rights on December 10 of that year.

But the Inter-American system was called upon to protect human rights in the face of social and political realities that were vastly different from those in Europe in 1978, though one must recall that the European system too had its origins in tumultuous times following the end of World War II. The European Convention entered into force on September 3, 1953, establishing a Commission which functioned until 1998, and the European Court of Human Rights to which citizens since 1998 may now appeal directly without going through the Commission, which was abolished in 1998.

The Inter-American system, with that of Europe, also set a powerful example for Africa, which adopted the African Charter on Human and Peoples’ Rights, which entered into force on October 21, 1986. The African Commission on Human and Peoples’ Rights has established an important body of precedent, and now the African Court of Human and Peoples’ Rights, created pursuant to a protocol to the Charter which entered into effect on January 25, 2005, has also been established, and may one day soon merge with the African Court of Justice. The African Commission and Court are having an increasing impact on the achievement and consolidation of democracy and the rule of law on the continent.

All three of these regional systems were inspired by, and gave further expression to, the ideals and norms contained in the Universal Declaration on Human Rights, adopted by the United Nations General Assembly on December 10, 1948. Worth noting is that the Nobel Peace Prize is awarded on December 10 of each year.

In supporting these developments, and continuing his struggle for democracy and human rights since he left office in January, 1981, Jimmy Carter deserves the most profound respect and thanks of the world community, including the people of the United States. During his time in office, while mistakes were made, he carried forward the torch of human rights. For his work, he was awarded the Nobel Peace Prize in 2002.

For speaking out now against violations of the most fundamental norms of human rights and international law, and even and particularly when those violations were and are committed by his own government, Jimmy Carter deserves our highest praise.

Thank you, President Carter.

And thank you, Dr. King. For your example, moral clarity, and courage, which we hope will guide us now.

The Trenchant Observer

observer@trenchantobserver.com
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Hillary Clinton and “The Benghazi Triangle”—where careers and reputations vanish without a trace

Monday, December 17th, 2012

The Bermuda Triangle is a well-known area where ships have been known to vanish without a trace, and without any cogent explanation. It seems that since September 11, 2012, there is also some kind of “Benghazi Triangle”–where careers and reputations vanish without a trace.

After steadfastly maneuvering to avoid “The Benghazi Triangle”, it now appears that Secretary of State Hillary Clinton risks ultimately being caught up in its vortex.

Clinton certainly did not want to be involved with Benghazi, where one of her ambassadors and three other Americans were killed by heavily-armed militants on the evening of September 11, 2012.

After a grueling week, she “declined” to appear on the Sunday talk shows on September 16, leaving the White House to delegate that task to Susan Rice, the U.S. Ambassador to the United Nations. Rice, once a leading candidate to become secretary of state in Barack Obama’s second term, was ultimately forced to withdraw herself from consideration for that post, in part due to the firestorms which erupted following her September 16 talk show appearances.

She had entered “The Benghazi Triangle” which, perhaps due to the fierce energies unleashed by the CIA “black operations” there, has been a zone where careers, ambitions, and reputations vanish without a trace.

Preceding Rice’s withdrawal from consideration for the secretary of state position, David Petraeus, the most celebrated general in recent times, had seen his career go up in smoke after entering into “The Benghazi Triangle”. Petraeus had had the temerity to insist on publishing the CIA version of what happened at Benghazi, on November 2, incurring the displeasure of other intelligence chiefs and government officials whose roles in the affair now came more fully into view. Days later, on November 6, 2012, the FBI called James Clapper, the head of the Directorate of National Intelligence (DNI), to inform him that Petraeus had had an affair with Paula Broadwell–which had ended four months earlier.

Clapper, without missing a beat, called Petraeus and urged him to resign.  Petraeus offered his resignation to Obama in a meeting on Thursday, November 8. The president thought about it overnight, and accepted it on Friday, November 9. 

Petraeus, in subsequent testimony before Congress on November 16, made clear that the CIA had not altered “the Benghazi talking points” it had originally prepared, which made specific reference to al-Qaeda affiliates’ participation in the Benghazi attacks on September 11.  This is an interesting point, since Michael Morrell, now Acting Director of the CIA, gave different accounts when meeting with Senators on November 27, 2012.

(An example of the misleading information being supplied to Congress and to the public is provided by the following excerpt from the Christian Sciene Monitor regarding meetings on November 27 of Susan Rice and CIA Acting Director Michael Morell with Republican Senators.)

…Republican senators said the meeting with Rice and Morell left them with more concerns than before. In a statement McCain, Graham and Ayotte said there was now more confusion about who had made changes in the talking points before they were given to Rice.

Morell told the senators during the meeting that the FBI had removed references to al Qaeda from the talking points “and did so to prevent compromising an ongoing criminal investigation” of the attack on the U.S. mission, the statement by McCain, Graham and Ayotte said.

“However, at approximately 4:00 this afternoon, CIA officials contacted us and indicated that Acting Director Morell misspoke in our earlier meeting. The CIA now says that it deleted the al-Qaeda references, not the FBI. They were unable to give a reason as to why,” the statement said (emphasis added).

–Tabassum Zakaria and Susan Cornwell (Reuters),”Controversy over Susan Rice’s Benghazi comments continues,” Christian Science Monitor, November 27, 2012.

See also The Trenchant Observer, “Lies, Spies and Politics: The Incredible Evolution of the Benghazi “Talking Points” Narrative–Part II,” November 27, 2012.

Morrell is reported to be a leading candidate to lead the CIA in Obama’s second term. Whether he can avoid “The Benghazi Triangle” remains to be seen. Certainly, if he is nominated, he will face some sharp questioning at his confirmation hearings.

Secretary of State Clinton avoided testifying about Benghazi in the first round of hearings, in November, due to her travel schedule which placed her out of the country. That schedule, apparently, was more important to her than testifying before Congress about what was arguably the worst foreign policy disaster during her term of office.

Now Clinton, the one key witness who could testify about what she–and President Obama–knew and when they knew it, has fallen and hit her head, suffering a concussion. Consequently, she will be unavailable for this week’s hearings, though she apparently will be working from home.

Everyone hopes she has a speedy recovery. As soon as she is well, the congressional hearings should resume, and she should be called again–for the third time–to provide critical information about what happened in and in relation to Benghazi, and what she and the president knew, and when they knew it.

If these questions are not promptly and satisfactorily answered, they may serve as an epitaph on her term as Secretary of State and all the diligence and hard work she has unquestionably brought to the job. Such an epitaph would undoubtedly affect judgments over the next four years regarding the viability of a Clinton candidacy for president in 2016.

In any event, her career and her reputation are at high risk, as she has ventured into “The Benghazi Triangle”–where careers and reputations vanish without a trace.

The Trenchant Observer

All Eyes on Benghazi: The Petraeus Affair, Allen’s e-mails, and other distractions

Tuesday, November 13th, 2012

Marcellus; “Something is rotten in the state of Denmark.”
–Hamlet, Act I, Scene 4, 87-91

If President Barack Obama had schemed with his closest confidantes to come up with a set of diversions that could distract journalists’ and the nation’s attention from the colossal national security failures which occurred at Benghazi on September 11-12, he could not have come up with a better narrative than the Petraeus affair, including the latter’s liaison with Paula Broadwell and General John Allen’s relationship with Broadwell’s nemesis, Jill Kelly.

Yet as salacious and suspenseful as the unraveling of the downfall of David Petraeus may be, the gravity of matters of state requires that we maintain our attention intently focused on what happened before, during, and after the events in Benghazi on September 11-12.

Petraeus’ testimony to Congress about Benghazi would have been riveting. Instead, he was forced out between Tuesday, November 6, and Friday, November 9.

Why? Who did the pushing? Are we to really believe that James Clapper prevailed on Petraeus to resign without running it by Obama first?

Observe closely the following chronology of events:

1.  Petraeus traveled to Libya within the last few weeks to meet with the CIA station chief, and would have brought this first hand information to the Congressional hearings at which he was to testify this week, beginning November 13, had he not been forced out.

2.  The FBI concluded that no security issue arose and no crime had been committed by either David Petraeus or Paula Broadwell, and communicated to them in late October that there would not be any further pursuit of the investigation.

3.  Nonetheless, around 5:00 p.m. on the evening of November 6, someone at the FBI reportedly called James Clapper, the Director of National Intelligence and Petraeus’ immediate superior, to inform him that Petraeus had had an affair with Broadwell.

Who made this call? Why, and on whose direction was the call made?

4. Clapper then called Petraeus later Tuesday evening (November 6), and informed him of the call from the FBI. In that call or in a subsequent call on Wednesday morning, Clapper urged Petraeus to resign.

See

“Timeline of events surrounding CIA Director Petraeus’ resignation”, Reuters, November 11, 2012.

P. J. Tobia, “Timeline of Events Revolving Around Gen. David Petraeus’ Resignation,” PBS Newshour, November 12, 2012.

Heidi Moore, “Petraeus scandal: a readers’ guide to the clandestine soap opera and its cast; As the story entangles more characters, use our guide to keep track of the details that would make a TV writer’s head spin, ” The Guardian, November 14, 2012 (11:23 EST).

Clapper, as Director of National Intelligence overseeing 16 intelligence agencies, including the CIA, the FBI, the DIA, and the NSA, was Petraeus’ immediate superior.

5.  On Wednesday, Clapper called an official at the National Security Council (probably Donilon) and told him of the affair and that Petraeus was likely to resign.

6.  On Wednesday Petraeus reportedly called Tom Donilon, the President’s National Security Adviser, and requested an appointment with the President.

7. Petraeus met with President Obama on Thursday and offered his resignation.

8. On Friday, November 9, Obama called Petraeus and accepted his resignation.

Aside from the palace intrigue surrounding Obama and his national security team, the central importance of Petraeus is that he promised to be a witness before Congress who could tell the nation what really happened at Benghazi before and on the night of September 11-12.

The following questions are of critical importance, and deserve the highest priority from investigative reporters–and urgent answers:

1. Did the CIA alone prepare the talking points to prepare Susan Rice before she went on the Sunday talk shows on October 16, to give the impression the government believed the attack in Benghazi grew out of a spontaneous demonstration against an anti-Muslim film which, as the administration knew then, never occurred?  What was the motive behind providing this information? Who in the CIA, at the direction of whom, prepared and presented these talking points to Rice?  Did Whit House officials have a hand in preparing the talking points?

Are we to believe that Rice, now reported on background to be Obama’s choice for Secretary of State, blindly relied on these talking points, and did not check with officials in the State Department to learn their version of events? Was Obama involved in any way with the decisions that led her to present the story to the talk shows that the attack grew out of a demonstration against the anti-Muslim film?

2. Did Petraeus and/or President Obama participate in the decisions about whether the CIA security forces at the Annex should come to the rescue of the Ambassador and others at the consulate? What was the precise timing of those decisions? Did Obama make other decisions not to send more robust assistance to defend the consulate? At what time did the attack on the consulate begin?

3. What role did Africa Command (Africom) commander General Carter Ham play in efforts to send backup security or military forces to defend the consulate and annex in Benghazi? Why was the fact that he was to be replaced suddenly and unexpectedly announced on October 18, only a year and a half after beginning the assignment? What were the reasons that led General Ham on October 30 to announce his retirement? If, as has been rumored, he disobeyed an order to stand down, why wasn’t he immediately fired, and then prosecuted under the Uniform Code of Military Justice?

4. Were there naval units in the region that might have dispatched forces to defend the consulate and annex in Benghazi? If so, why were they not used to come to the aid of Christopher Stevens and the other Americans at the consulate and the Annex?

5.  What is the explanation for the rescue force arriving at the airport and being held for hours before they were able to get through immigration?

6.  Finally, the elephant in the room, which journalists seem afraid to touch:  What were the CIA agents at the annex doing there?

The Trenchant Observer

No time for cowboys: U.S. preparation for reprisals against Libyan targets

Wednesday, October 3rd, 2012

News report

WASHINGTON — The United States is laying the groundwork for operations to kill or capture militants implicated in the deadly attack on a diplomatic mission in Libya, senior military and counterterrorism officials said Tuesday, as the weak Libyan government appears unable to arrest or even question fighters involved in the assault.

The top-secret Joint Special Operations Command is compiling so-called target packages of detailed information about the suspects, the officials said. Working with the Pentagon and the C.I.A., the command is preparing the dossiers as the first step in anticipation of possible orders from President Obama to take action against those determined to have played a role in the attack on a diplomatic mission in the eastern city of Benghazi that killed Ambassador J. Christopher Stevens and three colleagues three weeks ago.

–Eric Schmitt and David D. Kirkpatrick, “U.S. Is Tracking Killers in Attack on Libya Mission,” New York Times, October 2, 2012 (October 3, 2012 print edition).

Several facts have now become clear regarding the attacks on the U.S. consulate and other buildings in Benghazi on September 11-12, which resulted in the death of Ambassador Christopher Stevens and three other Americans.  They include:

1.  The Ambassador, and the consulate in Benghazi, were woefully unprotected in terms of security.  The State Department had refused numerous requests for more robust security arrangements in view of the changing risk environment in eastern Libya.

2.  The CIA and/or other U.S. government agencies were conducting a major “black” or secret  operation in Benghazi, without the knowledge of ranking Libyan officials.

3.   The lack of any warning of the imminence or possibility of the attacks on September 11-12 against the consulate, and a second compound at some remove from the consulate (often referred to as a “safe house”), constituted an enormous intelligence failure on the part of the Obama administration.

4.  The failure of the “black ops” group to anticipate the attacks reveals a stunning lack of effectiveness of intelligence operatives whose precise task was to track activities among anti-American and extremist groups.

5.  As one official told the New York Times, the attacks in Benghazi and the withdrawal of the U.S. intelligence operatives meant that the U.S. had had its “eyes poked out”  in Libya, or at least in eastern Libya.

Among the more than two dozen American personnel evacuated from the city after the assault on the American mission and a nearby annex were about a dozen C.I.A. operatives and contractors, who played a crucial role in conducting surveillance and collecting information on an array of armed militant groups in and around the city.

“It’s a catastrophic intelligence loss,” said one American official who has served in Libya and who spoke on the condition of anonymity because the F.B.I. is still investigating the attack. “We got our eyes poked out.”

The C.I.A.’s surveillance targets in Benghazi and eastern Libya include Ansar al-Sharia, a militia that some have blamed for the attack, as well as suspected members of Al Qaeda’s affiliate in North Africa, known as Al Qaeda in the Islamic Maghreb.

–Eric Schmitt, Helene Cooper and Michael S. Schmidt, “Deadly Attack in Libya Was Major Blow to C.I.A. Efforts,” New York Times, September 23, 2012.

6.  Obama administration officials, including Secretary of State Hillary Clinton, provided misleading information about who was responsible for the attack on the consulate, in a series of constantly-changing stories over a period of weeks.  In particular, these officials pushed a narrative that the attacks were the result of demonstrations in front of the consulate that were a reaction to the movie trailer for “The Innocence of Muslims,” which gave rise to demonstrations throughout a number of Muslim countries, when the known facts strongly suggested this was not the case.

7.  Obama administration officials have apparently leaked information regarding the preparation of target options or “packages”, to be executed against those responsible for the attacks in Benghazi, if President Obama gives the go-ahead. 

8.  The last two points continue a pattern in which leaks by government officials seek to portray President Obama as a “macho” president who is extremely tough on national defense and national security.

Two extremely dangerous factors seem to be converging that could lead the president to undertake disastrous actions against targets in Libya.

The first is the dominance within Obama’s national security councils of CIA and military advocates of using force against targets in other countries without regard for their sovereignty, including a special attachment to drone stikes and special operations attacks conducted outside the framework of international law.

International law establishes with great clarity that the conduct of reprisals within the territory of another state is a violation of bedrock principles of international law prohibiting the use of force (e.g., Article 2(4) of the U.N. Charter), and are not permissible under international law as lawful exercises of the right to self-defense under Article 51 of the Charter.

The second factor is the presidential election to be held on November 6, and the ongoing campaign including the first debate between  Barack Obama and Mitt Romney to be held tonight, October 3, 2012.  Romney has criticized Obama sharply for some of the failures mentioned in the points above.

Obama’s argument throughout the campaign has been that he has effectively reduced the threat of Al Qaueda and terrorists against the United States.  The Libyan failures do not fit well within this narrative.

Washington’s misleading statements about what happened in Benghazi suggest, to this observer at least, that the CIA and other intelligence agencies have been very keen to distract attention from what the black operations group was doing in Libya, without the permission of the Libyan government.  The administration’s objectives in making these misleading statements seem to have been to avoid discussion of this sensitive issue, and to keep the whole Libyan mess out of the presidential campaign.

This tactic of issuing misleading statements has now backfired.

The great risk at the moment is that President Obama, in order to shift the conversation away from his administration’s failures in Libya, will resort to the direct use of force against those believed to be responsible for the death of Ambassador Stevens and the other Americans in Benghazi, without the consent and cooperation of the Libyan authorities.

The electoral logic is powerful, but the risk is that such actions could inflict enourmous damage on U.S. foreign policy and public attitudes toward the United States not only in Libya, but also throughout the Middle East and in other Muslim countries.

The United States should not react to the attacks in Benghazi like a tribe which demands immediate blood vengeance for the killing of one of its members. Rather, it should act as a great democracy and example to the world, dedicated to the rule of law, and proceed to identify those responsible for the attacks, and then over time seek to bring them to justice through cooperation with the governments of the countries in which they may be found. This is the example which will have a real and lasting impact in the Middle East, and beyond.

The cowboys who have grown accustomed to conducting drone attacks in other countries without regard for international law, or for the reactions of the peoples and governments in the territories where they direct their strikes, should be sent back to the corral.

They should not be allowed to call the shots on this one.  Nor should the Obama campaign operation be allowed to undermine U.S. foreign policy in the region for the sake of electoral politics.

Above all, if President Obama is wearing a cowboy hat, he should take it off.

The Trenchant Observer

The punishment of presumed innocents: From the Vatican, and Afghanistan, cautionary tales for our times

Tuesday, October 2nd, 2012

Excerpt

Pope Benedict’s former butler, on trial for stealing papal documents, told a Vatican court on Tuesday that during the first weeks of his detention he was held in an isolation room so small he couldn’t stretch out his arms and with light on constantly.

Domenico Giani, the head of the Vatican police, issued a statement saying the room conformed to “standards used by other countries in similar situations”.

The Case of Paolo Gabriele, the Pope’s Butler

From the Vatican, we receive news that the impact of “standards used by other countries in similar situations” include holding suspects presumed to be innocent in sooms so small they cannot extend their arms. Reuters reports,

VATICAN CITY (Reuters) – Pope Benedict’s former butler, on trial for stealing papal documents, told a Vatican court on Tuesday that during the first weeks of his detention he was held in an isolation room so small he couldn’t stretch out his arms and with light on constantly.

Paolo Gabriele said that during those weeks he had suffered damage to his eyesight and had felt under psychological pressure. On the first night in the room in the Vatican’s police station, “even a pillow was denied me”, he said.

A judge ordered an investigation of the police force after Gabriele, speaking confidently and smiling often, made the assertions on the second day of a trial that has embarrassed the Vatican.

Gabriele, who is accused of passing to a journalist documents alleging corruption in the Vatican, pleaded not guilty to charges of aggravated theft.

Asked by his lawyer Cristiana Arru if it was true that for the first weeks after his arrest on May 23 he was held in a room so narrow he could not stretch out his arms, he said: “Yes.”

In answer to a question by the judge, Gabriele said:

“For the first 15-20 days the light was on 24 hours a day and there was no switch. As a result my eyesight was damaged.”

He said he was subjected to what he and his lawyer called psychological pressure.

Domenico Giani, the head of the Vatican police, issued a statement saying the room conformed to “standards used by other countries in similar situations”.

It said the light had been kept on for general security reason, to keep Gabriele from harming himself and that the prisoner had been given an eye mask. He denied that Gabriele had not been given a pillow and said Gabriele was later moved to a larger room in the Vatican police station.

–Reuters, “Vatican Orders Investigation of Police for Abuse of Butler After Arrest”, New York Times, October 2, 2012.

“Standards Used by Other Countires in Similar Circumstances”

In 1764, Cesare Beccaria wrote in his seminal work entitled, Of Crimes and Punishments (published in Italian), the following words regarding torture:

Of Torture.

The torture of a criminal during the course of his trial is a cruelty consecrated by custom in most nations. It is used with an intent either to make him confess his crime, or to explain some contradictions into which he had been led during his examination, or discover his accomplices, or for some kind of metaphysical and incomprehensible purgation of infamy, or, finally, in order to discover other crimes of which he is not accused, but of which he may be guilty.

No man can be judged a criminal until he be found guilty; nor can society take from him the public protection until it have been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorise the punishment of a citizen so long as there remains any doubt of his guilt? This dilemma is frequent. Either he is guilty, or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary, if he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent whose crime has not been proved. Besides, it is confounding all relations to expect that a man should be both the accuser and accused; and that pain should be the test of truth, as if truth resided in the muscles and fibres of a wretch in torture. By this method the robust will escape, and the feeble be condemned. These are the inconveniences of this pretended test of truth, worthy only of a cannibal, and which the Romans, in many respects barbarous, and whose savage virtue has been too much admired, reserved for the slaves alone.

–Cesare Beccaria, Of Crimes and Punishments (1764), Chapter “On Torture”.

The presumption of innocence is well-established in the constitutions of the world and international human rights law including the International Covenant on Civil and Political Rights (1966, in force 1976).

Article 14(2) of the Covenant provides: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”

Article of 1(1) of the U.N. Convention Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984, in force 1987) defines “torture” as follows:

Article 1

1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The Convention also provides, in Article 16 the following with respect to treatment that does not rise to the level of torture:

Article 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.

Observations

The rough treatment of suspects “presumed to be innocent” has become rather commonplace in the United States and other countries.

From the “perp walk” arrested suspects are forced to undergo when entering the courthouse in many jurisdictions in the United States, to the treatment of John Walker Lindh, “the American Taliban”, when he was first captured and held in Afghanistan in 2001, from the CIA’s use of so-called “harsh interrogation techniques” (in violation of the Torture Convention) to the conditions in which suspects have been held in Guantánamo and Bagram prisons, the presumption of innocence seems to have frayed around the edges.  The use of various forms of pressure on suspects, including interrogation techniques banned by the Torture Convention, international human rights law, and the laws of war seems to have become widespread, even if the most egregious of those techniques have now been banned by President Barack Obama by Executive Order.

The Treatment of John Walker Lindh While Detained in Afghanistan

A second case which throws light on contemporary practice regarding the presumption of innocence is that of John Walker Lindh, the so-called American Taliban. The following descriptions detail the conditions under which John Walker Lindh was detained in Afghanistan in 2001:

December 8-9, 2001: John Walker Lindh Kept in Metal Box for Two Days, Denied Medical Treatment According to government papers, later quoted by defense lawyers for captured “American Taliban” John Walker Lindh (see Late morning, November 25, 2001), “A Navy physician present at Camp Rhino recounted that the lead military interrogator in charge of Mr. Lindh’s initial questioning told the physician ‘that sleep deprivation, cold, and hunger might be employed’ during Mr. Lindh’s interrogations.” This interrogator later says, “he was initially told to get whatever information he could get from the detainee. However,… once it was determined from their initial questioning of Lindh that he was an American, which was done within an hour or so, [the military interrogator] informed a superior and was told they were done questioning him.” Lindh nevertheless is subjected to “sleep deprivation, cold, and hunger.” The metal container Lindh is kept in has no light or heat source. Only two small holes in the sides of the container allow some light and air to enter, through which military guards frequently shout swearwords at Lindh and discuss spitting in his food. According to his defense attorneys, “Mr. Lindh’s hands and feet remained restrained such that his forearms were forced together and fully extended, pointing straight down towards his feet. The pain from the wrist restraints was intense. Initially, Mr. Lindh remained fully exposed within the metal container, lying on his back; after some time had passed, one blanket was placed over him and one beneath him. While in the container the first two days, Mr. Lindh was provided minimal food and little medical attention. He suffered from constant pain from the plastic cuffs on his wrists and the bullet wound in his thigh. Because the metal container was placed next to a generator, the loud noise it generated echoed within the container. According to government disclosures, Mr. Lindh repeatedly said he was cold and asked for more protection from the weather. When Mr. Lindh needed to urinate, his guards did not release him from the restraints binding him to his stretcher, but instead propped up the stretcher into a vertical position. Due to hunger, the cold temperature, the noise, and the incessant pain caused by his wounds and the position in which he was restrained, Mr. Lindh was unable to sleep. Mr. Lindh was held under these conditions continuously for two days.” [United States of America v. John Walker Lindh, 6/13/2002 ]

–History Commons, War in Afghanistan, John Walker Lindh

Lindh’s father describes these conditions of confinement as follows:

On December 7 John was flown to Camp Rhino, a U.S. Marine base approximately 70 miles south of Kandahar, where he was taunted and threatened, stripped of his clothing, and bound naked to a stretcher with duct tape wrapped around his chest, arms, and ankles. It was winter in Afghanistan, and John shivered uncontrollably in the bitter cold. Still blindfolded, he was placed in a metal shipping container that sat on the desert floor. It was especially cold at night, and the pain from plastic restraints that had been tightened about his wrists was severe.

After two days in the container, he was taken into a building at Camp Rhino. When his blindfold was removed, John found himself in front of a man who identified himself as an FBI agent and then read from an advice-of-rights form. When the agent reached the part that concerned right to counsel, he said, “Of course, there are no lawyers here.” John was not told that his parents had retained an attorney for him who was ready and willing to travel to Afghanistan. Worried that he would be returned to the container if he did not sign the form, John signed the waiver.

A two-day interrogation followed, after which U.S. military personnel put John back in the metal shipping container, although this time his leg- and handcuffs were loosened and he was no longer bound by duct tape or blindfolded. On December 14 he was placed on board the USS Peleliu, where Navy physicians observed that he was suffering from dehydration, hypothermia, and frostbite, and that he could not walk. On December 15 the bullet was finally removed from his leg in a surgical procedure conducted more than two weeks after he had been transferred to the custody of the U.S. military.

–Frank R. Lindh, “The Crimeless Crime: The Prosecution
of John Walker Lindh,” DC Bar, Taking the Stand, May 2005.

Analysis and Further Observations

What are we witnessing when we see something like the “perp walk” of Dominique Strauss Kahn in New York when he was arrested for sexual assault in New York in 2011, but before he was found guilty by a court? In this New York case, in fact, he was never found criminally guilty by a court.

What does it mean when we see John Walker Lindh taped naked to a table in a container bin in Afghanistan, in freezing conditions, before he has been convicted of any crime? He was, of course, later convicted. The point, however, is that he had not been convicted at the time, and in any event the conditions of his confinement almost certainly represented a violation of the laws of war.

Are we witnessing a kind of militarization of the criminal justice process, where those who are arrested are treated as if they were guilty by the authorities, just as suspected terrorists may be treated, or even killed by drones in the infamous “signature strikes” where they are convicted by perceptions of their patterns of activity without even knowing their names?

Just what does the presumption of innocence mean today, in the United States, the Vatican and other countries? Does it mean, legally, that the accused are to be treated as if they are innocent?

That seemed to be the original idea, going all the way back to Cesare Beccaria. Where do we as a society, as an international community, stand with respect to that idea today?

What happened?

The Trenchant Observer

Archbishop Desmond Tutu calls for prosecution of Blair and Bush for Iraq invasion; Torture investigations end in U.S.

Monday, September 3rd, 2012

South African Archbishop Tutu Withdraws from Conference, Suggests Blair and Bush should be Prosecuted for Invasion of Iraq

Former Anglican Archbishop Desmond Tutu, the renowned anti-apartheid leader and recipient of the 1984 Nobel Peace Prize, has written an op-ed piece in The Observer explaining why he withdrew from attending the Discovery Invest Leadership Summit in Johannesburg last week, a conference attended by Tony Blair.

“As the date drew nearer, I felt an increasingly profound sense of discomfort about attending a summit on “leadership” with Mr Blair. I extend my humblest and sincerest apologies to Discovery, the summit organisers, the speakers and delegates for the lateness of my decision not to attend.”

–Desmond Tutu, “Why I had no choice but to spurn Tony Blair; “I couldn’t sit with someeone who justified the invasion of Iraq with a lie,” The Observer, September 1, 2012 (opinion).

See also Tony Helm (Political Editor) “Tony Blair should face trial over Iraq war, says Desmond TutuAnti-apartheid hero attacks former prime minister over ‘double standards on war crimes’”, The Guardian, September 1, 2012.

In his op-ed piece, Archbishop Tutu wrote:

The immorality of the United States and Great Britain’s decision to invade Iraq in 2003, premised on the lie that Iraq possessed weapons of mass destruction, has destabilised and polarised the world to a greater extent than any other conflict in history.

Instead of recognising that the world we lived in, with increasingly sophisticated communications, transportations and weapons systems necessitated sophisticated leadership that would bring the global family together, the then-leaders of the US and UK fabricated the grounds to behave like playground bullies and drive us further apart. They have driven us to the edge of a precipice where we now stand – with the spectre of Syria and Iran before us.

Explaining that he had called Condolezza Rice on the eve of the invasion asking for more time for the U.N. weapons insprectors to complete their tasks, and that she had responded that there wasn’t enough time, the former Archbiship of Cape Town asked, “If leaders may lie, then who should tell the truth?”

The 1984 Nobel Peace Prize laureate continued:

The cost of the decision to rid Iraq of its by-all-accounts despotic and murderous leader has been staggering, beginning in Iraq itself. Last year, an average of 6.5 people died there each day in suicide attacks and vehicle bombs, according to the Iraqi Body Count project. More than 110,000 Iraqis have died in the conflict since 2003 and millions have been displaced. By the end of last year, nearly 4,500 American soldiers had been killed and more than 32,000 wounded.

On these grounds alone, in a consistent world, those responsible for this suffering and loss of life should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in the Hague.

Returning to the theme of why he had withdrawn from the conference, Archbishop Tutu argued,

Leadership and morality are indivisible. Good leaders are the custodians of morality. The question is not whether Saddam Hussein was good or bad or how many of his people he massacred. The point is that Mr Bush and Mr Blair should not have allowed themselves to stoop to his immoral level.

If it is acceptable for leaders to take drastic action on the basis of a lie, without an acknowledgement or an apology when they are found out, what should we teach our children?

My appeal to Mr Blair is not to talk about leadership, but to demonstrate it….

U.S. Attorney Gerneral Announces End of Last Torture Investigations

Ironically, just days earlier, on August 30, 2012, U.S. Attorney General Eric Holder announced that the last torture investigations had been concluded, and that the last few individuals under investigation would not be prosecuted.

Attorney General Eric H. Holder Jr. announced Thursday that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the C.I.A.

–Scott Shane, ” No Charges Filed on Harsh Tactics Used by the C.I.A., New York Times, August 30, 2012.

See also

“Justice Department Ends Investigation on Alleged Use of Torture by CIA,” PBS Newshour, August 31, 2012.

“ACLU Comment on Closure of Justice Department’s CIA Torture Investigation,” ACLU.org, August 30, 2012.

The Trenchant Observer, previous articles on torture (find using the SEARCH box in the upper right-hand corner of the home page).

As a result of Holder’s decision, domestic investigations into the Bush torture policy and those responsible for torture as it is defined in the U.N. Convention Against Torture have now concluded, opening the way for other countries to apprehend and try U.S. officials responsible for torture when they are found within their jurisdiction.

The outrageous irony here is that Holder has concluded that not even these lower-level officials can be prosecuted due to the lack of sufficient “admissible evidence” to secure a conviction. In the United States justice system, evidence obtained through the use of torture is not admissible, and evidence relating to the administration of such torture may not be admissible because it is “classified”. If this phalanx of legal defenses is not sufficient to bar prosecution, the government can always invoke the relatively new state secrets doctrine in order to secure the dismissal of the case.

So, this U.S. administration is not going to prosecute those responsible for the Bush torture policy or for carrying it out. As the Attorney General previously announced, the Justice Department excluded from its investigations all cases where the acts using so-called “enhanced interrogation techniques” (i.e., torture under the terms of the U.N. Convention on Torture) were carried out pursuant to legal guidance by the Department of Justice.

Until reversed, these decisions stand for the acceptance by the United States of the “due obedience” defense to international crimes.

This defense was explicitly rejected at Nuremberg, in the Rome Statute of the International Criminal Court, and in numerous prosecutions against those responsible for international crimes in a number of countries and before a number of international tribunals.

It is a shameful policy for the United States to uphold.

Now, over the coming years and decades, it will fall upon the initiative of other countries which are parties to the U.N. Convention Against Torture to bring to justice those responsible for the torture policy of the Bush years.

Bush administration officials involved in those policies and their execution desiring to avoid accountability under international law would be well-advised to carefully consider their foreign travel plans in the future.

The Trenchant Observer

Kofi Annan proves Karl Marx right: “History repeats itself, first as tragedy, then as farce”—Obama’s Debacle in Syria — Update #59 (July 9)

Monday, July 9th, 2012

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

“Oh, what a beautiful castle in the sky! Kofi Annan—the Illusionist, the moral cowardice of the world, and the end of the United Nations dream—Obama’s Debacle in Syria — Update #58 (July 2)”
July 2, 2012

“Immunity or safe-conduct for al-Assad? Can Kofi Annan fail? Conference before cease-fire?—Obama’s Debacle in Syria — Update #56 (June 23),” June 23, 2012

“The League of Authoritarian States”—Obama’s Debacle in Syria — Update #50 (June 9),” June 9, 2012

“Stop the UN farce!—Obama’s Debacle in Syria — Update #37 (May 15),” May 15, 2012

“Kofi Annan is not God—Obama’s debacle in Syria — Update #15,”
March 23, 2012

Karl Marx, after all, was right: History does repeat itself, for the first time as tragedy and for the second time as farce.

Kofi Annan must be on his fourth or fifth repeat of history, but it is still farce.

When I saw the news report that he met with Bashar al-Assad today in Damascus to discuss a common approach to stop the fighting, and that he said the discussions were promising, I almost fell off my chair.

The premise of any such discussions would have to be that Bashar al-Assad’s agreement–to anything!–would have some significance.

But only a fool, or a government playing us all for fools, could accept such a proposition, in the face of the absolutely overwhelming evidence to the contrary that has accrued.

Does this man–the Envoy–have no shame?

Thousands and thousands of people have died because of the illusions he has fed to the U.N. Security Council and to the world, and the false hopes he has raised, helping Russia to block any effective Security Council action to halt the killing in Syria, or any effective action outside the framework of the Security Council itself that might halt the killing.

Is there a single person left in the thinking world who believes Kofi Annan is acting on behalf of anyone other than himself, the Russians, and even al-Assad himself?

Is there a single leader in the thinking world who will speak out, and shout from the rooftops:

“Get this man off the stage!”

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then use the “Search” Box or consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here. The Articles on Targeted Killings page can also be found here.

The Obama Leaks: The issue is not the leaks, but whether the president lied to the American people

Wednesday, July 4th, 2012

“The lady doth protest too much, methinks.”
–William Shakespeare, Hamlet, Act III, scene II

The key question relating to the so-called “national security leaks” (“or “White House leaks” or “Obama leaks”) is not so much who in the White House and the government was responsible for the leaks, but rather whether the President lied to the American people in his press conference on June 8, 2012, in response to a direct question about them.

[O]bama’s White House appeared to be leaking highly classfied information for political purposes, to portray the president as a strong and decisive leader on foreign policy. If this is true, it reflects the hubris and unprincipled partisanship of President Obama and his “foreign policy juggernaut”, as well as the incompetence of “the gang who couldn’t shoot straight”.

We deserve to know, soon, if that was the case and who the leakers were.

We also deserve to know if the president, at the June 8 news conference, was telling the truth in responding to the reporter’s question, in general, and in particular with respect to leaks regarding “targeted killings”.

–The Trenchant Observer, “Holder’s Investigations into Torture and Covert Operations Leaks–An Obama Cover-up?” June 26, 2012.

See also The Trenchant Observer, “Did the White House authorize recent leaks on covert programs?” June 10, 2012.

Cora Currier of ProPublica has now provided a detailed examination of the leaks that are being investigated and those that are not, with an explanation of the law governing leaks.

See Cora Currier, “Classified Confusion: What Leaks Are Being Investigated, and What’s the Law on Leaks?” ProPublica: Journalism in the Public Interest, July 2, 2012.

The leaks relating to the drone attacks and targeted killing program of the Obama administration, which (to some eyes) show the president in a very favorable light, as a strong and decisive leader who assumes moral responsibility and who acts decisively against Americá’s enemies, are apparently not being investigated, despite Obama’s statements at the press briefing on June 8.

In her rundown of the various leaks and the extent to which they are currently being investigated, Courier reports,

Leak: The CIA’s drone program

The CIA’s drone program and targeted strikes have been written about for years [8], but recent articles from Newsweek [9] and the New York Times [10] got particular attention.

Sources: Too many [11] to count. The Times article alone [10] cites “three dozen of [Obama’s] current and former advisers.” Staffers from the House and Senate Intelligence committees—whose members have been among the most vocal [12] in their concern about leaks—were cited [13] just last week in an article on CIA drone strikes.

Investigation: Apparently not. The CIA reportedly hasn’t filed a report [4] on drone leaks. Unnamed officials told Reuters one reason is that the CIA’s drone program has already been so openly discussed [14] (this despite the government’s position in a [15] separate case that the public doesn’t know the program exists). A Justice Department official recently noted to Congress that agencies sometimes don’t request an investigation because of “wide dissemination 16]” of the leaked information.

As the reader may recall, President Obama was asked the following question on June 8:

All right. David Jackson.

Q Thank you, sir. There are a couple of books out with, essentially, details about national security issues. There are reports of terrorist kill lists that you supervise and there are reports of cyber-attacks on the Iranian nuclear program that you ordered. Two things. First of all, what’s your reaction of this information getting out in public? And secondly, what’s your reaction to lawmakers who accuse your team of leaking these details in order to promote your reelection bid?

The question directly addressed “terrorist kill lists which you supervise”.

Daniel Klaidman, in his new book, Kill or Capture: The War on Terrorism and Soul of the Obama Presidency (New York and Boston: Houghton Mifflin Harcourt, 2012) reports on the drone attacks and targeted killing programs referred to by Jackson in his question at the press briefing on June 8. His book was clearly one of the two books referred to by Jackson in his question.

Klaidman specifically addresses targeted killings and kill lists at pp. 21-23, 39-43, 117-127, and 199-223 of his book.

In his “Note on Sources” (pp.xiii-xv), Klaidman explains:

When I quote President Obama or other key characters, I do so only if that quote was relayed to me by a source who personally heard it. Where possible, I have checked those quotes against contemporeous notes taken by participants in meetings. Ultimately, I am dependent on the memory of my sources.

Occasionally I write about the emotional state and interior thoughts of President Obama and his top aides. In doing so, I am not taking lkiterary license. Those accounts are based on reporting–either from specific comments the president has made that directly express his state of mind, or from reasonable inferences from sources I have interviewed who have observed and spoken to him.

–David Klaidman, Kill or Capture, p. xiv.

The other book Jackson was referring to was David E. Sanger, Confront and Conceal: Obama’s Secret Wars and Surprising Use of american Power (New York: Crown Publishers / Random House, Inc. 2012).

An excellent overall account of the targeted killing program, its operation, and the president’s involvement in its activities, is found in the following articles published in the New York Times:

Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, May 29, 2012.

Jo Becker and Scott Shane, “Assessing Obama’s Counterterrorism Record, New York Times,” May 29, 2012.

See also The Trenchant Observer, “President Obama as ”Executioner in Chief,” June 1, 2012, and the sources cited therein.

So, there we are, on this July 4, 2012, with one of the biggest questions out there being whether the president has lied to the American people about a matter of the utmost national security importance.

Did he do so at his press conference on June 8 when, with the clever phrasing of a highly-trained lawyer, he seemed to deny the leaks came from the White House?  

One is reminded of the famous statement by Queen Gertrude, Hamlet’s mother, “The lady doth protest too much, methinks.” Hamlet, Act III, scene II.

No doubt Bill Clinton thought he had cleverly avoided perjury when he stated, at a press briefing on January 26, 1998,  “I did not have sex with that woman, Miss Lewinsky.”

Does it matter whether the president told the truth?

Yes, because his credibility is at issue. If he didn’t tell the truth in this instance, what are we to believe in other instances?

Let the reader be the judge.

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then use the “Search” Box or consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here. The Articles on Targeted Killings page can also be found here.

“A time to break silence”: Dr. King on the Vietnam war, and President Carter on America’s human rights violations (revised June 28)

Wednesday, June 27th, 2012

“And I’ve long since learned that to be a follower (of) Jesus Christ means taking up the cross. And my bible tells me that Good Friday comes before Easter. Before the crown we wear, there is the cross that we must bear. Let us bear it–bear it for truth, bear it for justice, and bear it for peace. Let us go out this morning with that determination. And I have not lost faith. I’m not in despair, because I know that there is a moral order. I haven’t lost faith, because the arc of the moral universe is long, but it bends toward justice.”

–Dr. Martin Luther King, Jr., “Why I am opposed to the war in Vietnam,” Sermon at Ebenezer Baptist Church on April 30, 1967.

There is a powerful connection between the April, 1967 sermons on Vietnam of Dr. Martin Luther King, Jr., President Jimmy Carter’s recent New York Times op-ed piece on American human rights violations, and the policies currently being carried out by President Barack Obama. It is important to understand this connection, details of which are set forth below.

I. Jimmy Carter’s Op-Ed in the New York Times, Criticizing America’s Violations of Human Rights

Ex-president Jimmy Carter published an Op-Ed piece in the New York Times on June 24, in which he hashly criticized President Obama, and also former president Bush, for “the widespread abuse of human rights over the last decade, (which) has been a dramatic change from the past, signifying the fact that “the United States is abandoning its role as the global champion of human rights.”

See Jimmy Carter, “A Cruel and Unusual Record,” New York Times (op-ed), June 24, 2012.

Carter continued,

Revelations that top officials are targeting people to be assassinated abroad, including American citizens, are only the most recent, disturbing proof of how far our nation’s violation of human rights has extended. This development began after the terrorist attacks of Sept. 11, 2001, and has been sanctioned and escalated by bipartisan executive and legislative actions, without dissent from the general public. As a result, our country can no longer speak with moral authority on these critical issues.

These policies and actions, he wrote, signaled “a dramatic change from the past”, when the United States exercised bold leadership in securing the adoption of the Universal Declaration on Human Rights by the U.N. General Assembly in 1948, as “the foundation of freedom, justice and peace in the world.” Its adoption, wrote Carter,

…was a bold and clear commitment that power would no longer serve as a cover to oppress or injure people, and it established equal rights of all people to life, liberty, security of person, equal protection of the law and freedom from torture, arbitrary detention or forced exile.

The declaration has been invoked by human rights activists and the international community to replace most of the world’s dictatorships with democracies and to promote the rule of law in domestic and global affairs.

But, he continued,

It is disturbing that, instead of strengthening these principles, our government’s counterterrorism policies are now clearly violating at least 10 of the declaration’s 30 articles, including the prohibition against “cruel, inhuman or degrading treatment or punishment”.

Recent legislation has made legal the president’s right to detain a person indefinitely on suspicion of affiliation with terrorist organizations or “associated forces,” a broad, vague power that can be abused without meaningful oversight from the courts or Congress (the law is currently being blocked by a federal judge). This law violates the right to freedom of expression and to be presumed innocent until proved guilty, two other rights enshrined in the declaration.

He noted further, that

(R)ecent laws have canceled the restraints in the Foreign Intelligence Surveillance Act of 1978 to allow unprecedented violations of our rights to privacy through warrantless wiretapping and government mining of our electronic communications…

Carter harshly criticized the use of drone attacks, writing that

Despite an arbitrary rule that any man killed by drones is declared an enemy terrorist, the death of nearby innocent women and children is accepted as inevitable. After more than 30 airstrikes on civilian homes this year in Afghanistan, President Hamid Karzai has demanded that such attacks end, but the practice continues in areas of Pakistan, Somalia and Yemen that are not in any war zone. We don’t know how many hundreds of innocent civilians have been killed in these attacks, each one approved by the highest authorities in Washington. This would have been unthinkable in previous times.

These policies were counterproductive in terms of American foreign policy, he observed, noting that

Top intelligence and military officials, as well as rights defenders in targeted areas, affirm that the great escalation in drone attacks has turned aggrieved families toward terrorist organizations, aroused civilian populations against us and permitted repressive governments to cite such actions to justify their own despotic behavior.

The 39th president of the United States also criticized the fact that the Guantánamo Bay facility remains open, with 169 prisoners still detained there. While “about half  have been cleared for release,” their chances of ever obtaining their freedom are slim, he asserted.

Some of those being tried have been tortured, Carter noted, writing:

American authorities have revealed that, in order to obtain confessions, some of the few being tried (only in military courts) have been tortured by waterboarding more than 100 times or intimidated with semiautomatic weapons, power drills or threats to sexually assault their mothers. Astoundingly, these facts cannot be used as a defense by the accused, because the government claims they occurred under the cover of “national security”. Most of the other prisoners have no prospect of ever being charged or tried either.

In conclusion, former president Carter argued,

At a time when popular revolutions are sweeping the globe, the United States should be strengthening, not weakening, basic rules of law and principles of justice enumerated in the Universal Declaration of Human Rights.

U.S. violation of international human rights is counterproductive, he asserted, because it “abets our enemies and alienates our friends.”  As “concerned citizens”, we must now persuade Washington “to reverse course and regain moral leadership according to international human rights norms that we had officially adopted as our own and cherished throughout the years.”

This forceful critique of American human rights violations made by Jimmy Carter, the American president most closely associated with U.S. leadership in the field of human rights, will undoubtedly have a significant impact over time, both abroad and at home.

II. Dr. King and Vietnam: A Time to Break Silence—Bearing the Cross for Truth, Justice and Peace

When I read ex-President Jimmy Carter’s op-ed piece in the New York Times on June 24, calling out President Barack Obama for his human rights violations, both domestic and foreign, I was reminded of the afternoon I was driving in my car and first heard Dr. Martin Luther King, Jr., also a Nobel Prize winner, deliver a powerful speech criticizing President Johnson and his conduct of the Vietnam war.

The feeling then, in 1967, was one of enormous relief. At last there was a figure of great and almost unparalleled national and international prominence, the winner of the Nobel Peace Prize in 1964, who had the courage to speak the truth as he saw it, according to his best lights, and his deep faith, however unpopular that truth might be.

Martin Luther King, Jr. gave two sermons on Vietnam in April, 1967. The first, “Beyond Vietnam: A Time to Break Silence” is a detailed but courageous speech that draws on many of the details of the history of Vietnam and the war which were familiar to his audience. It is delivered in a calm, reasoned tone. The second, a sermon delivered at the Ebenezer Baptist Church in Atlanta where he was pastor, is a strong sermon delivered in the cadences of the powerful preacher who King was. Entitled, “Why I am opposed to the war in Vietnam,” it hits the main points of the April 4 sermon, with greater emotional emphasis. It is probably more accessible to readers and listeners not familiar with the history and details of the Vietnam conflict. Links to both are found below. See

Rev. Martin Luther King, “Beyond Vietnam: A Time to Break Silence,” April 4, 1967, at a meeting of Clergy and Laity Concerned at Riverside Church in New York City).

The text is found here.

The audio is found here.

David Bromwich, “Martin Luther King’s Speech Against the Vietnam War,” Antiwar.com, May 16, 2008 (summary and analysis, with extensive excerpts).

See also:

Martin Luther King, Jr., “Why I am opposed to the war in Vietnam,” Sermon at the Ebenezer Baptist Church, April 30, 1967. Excerpts from the audio and text are found here.

The complete audio (in RealAudio) is found here.

The original written text is found here.

NOTE: The two sermons are often confused, with the audio for the April 30 sermon often being attributed to the April 4 “Beyond Vietnam” sermon.

“The Obamians”, as James Mann has termed President Obama and his younger group of closest foreign policy advisers, in his new and revealing book on the foreign policy team in the White House, would especially benefit from listening to King’s speech, and his April 30, 1967 sermon. Their eyes reportedly glaze over when other advisers, usually older, refer to the Vietnam war and its lessons. They, and particularly the most important Obamian, President Obama himself, should listen to Martin Luther King’s speech and sermon, and reflect on what they hear, taking the moral authority of the speaker into account.

They might also bear in mind and take to heart the famous dictum,

“Those who cannot remember the past are condemned to repeat it” (George de Sanayana, from “Life of Reason I”).

Mann’s book is fascinating. See

The Obanians: The Struggle Inside the White House to Redefine American Power (Viking Penguin/The Penguin Group, 2012)

Dr. Martin Luther King, Jr. was assassinated on April 4, 1968, exactly one year after his speech or sermon entitled, “”Beyond Vietnam: A Time to Break Silence.”

III. Jimmy Carter’s Contribution to Human Rights

Jimmy Carter’s op-ed piece should grab the public’s attention in the United States.

But the coverage in the U.S. press suggests the public may have become far too accustomed to the targeted killings, or “assassinations” in the words of Jimmy Carter–which is the correct term when the killings are conducted outside the framework of international law, far too accustomed to the debate over the efficacy of torture, far too complacent over the violation of bedrock principles of the U.S. Constitution, to pay much attention.

The press reaction in different countries is quite revealing, even if it takes a lot of work to uncover, due to the “filter bubble” Google and most other search engines now use, displaying search results only from our own country and in our own language. If you are in the United States and Google “Jimmy Carter” you won’t see the incisive articles published in the United Kingdom in The Guardian, The Telegraph or The Independent. You’ll see articles and blogs published in the United States.

We now live in information ghettos, where the opinions of those in other countries are filtered out of our consciousness. Moreover, due to the use of our previous search histories to filter the results that are displayed in, e.g., a Google search, within this subset of news and opinion we may even see news that leans more to the left or the right, depending on who we have read in the past.

Jimmy Carter has demonstrated in his op-ed that there are still Democrats in the United States with the courage to defend our civil liberties, and to fight for a foreign policy based on furthering human rights and democracy abroad, and compliance with the basic norms of international law, including those relating to human rights.

When historians of the future write about this period, they may mention Jimmy Carter’s op-ed piece, and wonder how the people of this time in the U.S. went along with such egregious violations of the U.S. constitution and the most fundamental norms of international law.

Now the question is whether others will have the courage to speak out, even if the president committing these violations is from their own party–and the party they want to win in the November elections.

It is a stark moral choice. Listen to the audio of Martin Luther King’s April 4, 1967 speech and especially to the audio of his April 30, 1967 sermon at Ebenezer Baptist Church. He speaks of stark moral choices.

One is reminded not only of Martin Luther King, Jr., but also of those other defenders of civil liberties and democracy, such as Nelson Mandela, Mahatma Ghandi, Vacslav Havel, and Lech Walensa. One is also reminded of humanity’s project of building international peace through the establishment of international law and institutions, and compliance with their norms.

In the field of human rights, President Jimmy Carter was one of those men. His support of human rights started a process in Latin America (and elsewhere) which led to the end of dictatorships and authoritarian rule, and the gradual consolidation of democracy throughout the hemisphere.

His push for human rights led to the ratifications of the American Convention on Human Rights which resulted in its entry into force on July 18, 1978. His support of the Inter-American Commission on Human Rights, and the establishment of the Inter-American Court of Human Rights in San José Costa Rica, pursuant to the provisions of the American Convention, strengthened in the Americas a system of international protection of human rights similar in form to that established in Europe under the European Convention on Human Rights, in force since 1953.

Regrettably, the United States has never ratified the American Convention on Human Rights, which President Jimmy Carter signed and submitted to the Senate for ratification. Nonetheless, the U.S. is still bound to observe the rights set forth in the American Declaration of the Rights of Man, adopted by the members of the newly founded Organization of American States in Bogotá in April, 1948, months before the adoption of the Universal Declaration of Human Rights on December 10 of that year.

But the Inter-American system was called upon to protect human rights in the face of social and political realities that were vastly different from those in Europe in 1978, though one must recall that the European system too had its origins in tumultuous times following the end of World War II. The European Convention entered into force on September 3, 1953, establishing a Commission which functioned until 1998, and the European Court of Human Rights to which citizens since 1998 may now appeal directly without going through the Commission, which was abolished in 1998.

The Inter-American system, with that of Europe, also set a powerful example for Africa, which adopted the African Charter on Human and Peoples’ Rights, which entered into force on October 21, 1986. The African Commission on Human and Peoples’ Rights has established an important body of precedent, and now the African Court of Human and Peoples’ Rights, created pursuant to a protocol to the Charter which entered into effect on January 25, 2005, has also been established, and may one day soon merge with the African Court of Justice. The African Commission and Court are having an increasing impact on the achievement and consolidation of democracy and the rule of law on the continent.

All three of these regional systems were inspired by, and gave further expression to, the ideals and norms contained in the Universal Declaration on Human Rights, adopted by the United Nations General Assembly on December 10, 1948. Worth noting is that the Nobel Peace Prize is awarded on December 10 of each year.

In supporting these developments, and continuing his struggle for democracy and human rights since he left office in January, 1981, Jimmy Carter deserves the most profound respect and thanks of the world community, including the people of the United States. During his time in office, while mistakes were made, he carried forward the torch of human rights. For his work, he was awarded the Nobel Peace Prize in 2002.

For speaking out now against violations of the most fundamental norms of human rights and international law, and even and particularly when those violations were and are committed by his own government, Jimmy Carter deserves our highest praise.

Thank you, President Carter.

And thank you, Dr. King. For your example, moral clarity, and courage, which we hope will guide us now.

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then use the “Search” Box or consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here. The Articles on Targeted Killings page can also be found here.