Archive for the ‘Justice Department’ Category

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.

Holder’s Investigations into Torture and Covert Operations Leaks–An Obama Cover-up?

Tuesday, June 26th, 2012

Barack Obama thinks he’s always “the smartest person in the room”, and that he is a lot smarter than we are. Or maybe, accustomed as he is to a sycophantic press, he just thinks he is more clever than we are, and that he can sneak things by us and we won’t notice.

Obama, the Torture Convention, and Holder’s Investigations into Cases of Torture

An early example of the foregoing was the way President Obama dealt with the issue of potential prosecution of past and present officials for their involvement in the torture policy of the Bush administration.

First, Attorney General Eric Holder initiated an investigation into cases of alleged use of harsh interrogation techniques by the CIA, on August 24, 2009. At the same time he exempted from eventual prosecution all those who had acted pursuant to legal advice from the Justice Department, stating:

On January 2, 2008, Attorney General Michael Mukasey appointed Assistant United States Attorney John Durham of the District of Connecticut to conduct a criminal investigation into the destruction of interrogation videotapes by the Central Intelligence Agency. On August 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. I made clear at that time that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute.

Second, the Justice Department concluded in a report on February 19, 2010, that the legal guidance drafted by Justice Department officials authorizing the full range of “harsh interrogation techniques” did not constitute professional misconduct.

Third, Holder announced on June 30, 2011 that the review of cases was complete and that only two cases, which involved the death in custody of detainees, would be prosecuted. None of the other cases warranted prosecution, he concluded, stating:

Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.
–”Statement of the Attorney General Regarding Investigation into the interrogation of certain detainees, National Journal, June 30, 2011 (full text of statement),

See Eric Lichtblau and Eric Schmitt, “U.S. Widens Inquiries Into 2 Jail Deaths,” New York Times, July 1, 2011

The authors of the legal guidance authorizing torture (as it is defined in the Convention on Torture) were exonerated from “professional misconduct”. In other words, the Justice Department concluded that their drafting and approvals of legal memoranda authorizing torture did not constitute misconduct–i.e., that what appear to be clear violations of the torture convention do not constitute “misconduct”.  This is a rather extraordinary conclusion. 

The due obedience defense adopted by Holder protected all the individuals directly involved in executing acts of torture against detainees, with the two exceptions mentioned above. The policymakers at higher levels were never investigated for potential violations of the Torture Convention.

Obama and Holder thus avoided their legal duty, under both U.S. law and the Convention on Torture, to prosecute those responsible for the torture policy and its implementation. By June 30, 2011, the press and the media had long since turned their attention away from torture.  No one really cared about, even if they noticed, Obama’s and Holder’s legerdemain in excluding from the investigation both the principal policymakers involved in the formulation of the policy and those who actually carried it out.

The price paid by America in proceeding in this manner, in terms of international law, was high. The United States adopted the “due obedience” defense in cases involving torture (and by implication other international crimes), despite the fact that the “due obedience defense” was explicitly rejected in the Nuremberg Principles and at the Nuremberg trials of Nazi war criminals following World War II, and by the U.N. Convention Against Torture, to which the United States is a party. The Convention on Torture provides the following:

Article 2 (3). An order from a superior officer or a public authority may not be invoked as a justification of torture.

In addition, the Defense Department acted to remove the issue of torture from public debate through an order on November 11, 2009, which prohibited the release of any photographs depicting torture from September 11, 2001 through January 22, 2009.

See also Alexander Abdo, “The White House’s blemished record of disclosure on Bush-era torture; Since publishing the ‘torture memos’, the Obama adminstration has obfuscated far too much about CIA interrogation techniques,” The Guardian, June 26, 2012.

Nonetheless, under the Torture Convention other countries which are parties to the treaty have a continuing obligation to assume jurisdiction over individuals responsible for torture, including its planning and coordination, when such individuals are found within their territory. The second state must then inquire of the United States whether it wishes to prosecute the individual, and if it receives a negative reply, it is under a continuing obligation to prosecute the individual concerned.

At some point in the future, this requirement could complicate travel plans for U.S. officials from the Bush administration–including some still in the the government, such as John Brennan, the president’s counter-terrorism adviser.

See The Trenchant Observer, “The Clock is Ticking: U.S. Application of the Torture Convention,” February 20, 2010.

If one can draw one overriding lesson from the way the torture investigations were handled, it would have to be that Obama and Holder were using sleight of hand to give the impression they were investigating those potentially responsible for violating the Torture Convention, when they were not. They are clever lawyers, who need to be watched very carefully in order to fully understand what they are actually doing, and not just what they give the appearance of doing.

Obama’s Coverup of the White House Leaks?

Now, President Obama appears to be engaged in a similar act of legerdemain.

First, following a number of news stories in recent weeks and months which are obviously based on classified information, at a press conference on June 8, 2012, the president was asked by David Jackson of USA Today the following question:

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?

In a lengthy (four minutes) but opague response, the president seemed to say that he would not tolerate such leaks, that mechanisms were in place to find and punish anyone guilty of leaking such classified information, which in some cases is even illegal, and that he would act to identify the source of the leaks.

For videos of his response, see White House Press Office, video, June 8, 2012.

The video also follows below:

Or see the C-Span video here.

The question and answer on this issue begins at minute 23:00 of the video.

A transcript of the question and answer regarding leaks follows:

THE PRESIDENT: Good morning. I just want to say a few words about the economy, and then I will take some of your questions.

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 PRESIDENT: Well, first of all, I’m not going to comment on the details of what are supposed to be classified items. Second, as Commander-in-Chief, the issues that you have mentioned touch on our national security, touch on critical issues of war and peace, and they’re classified for a reason — because they’re sensitive and because the people involved may, in some cases, be in danger if they’re carrying out some of these missions. And when this information, or reports, whether true or false, surface on the front page of newspapers, that makes the job of folks on the front lines tougher and it makes my job tougher — which is why since I’ve been in office, my attitude has been zero tolerance for these kinds of leaks and speculation.

Now, we have mechanisms in place where if we can root out folks who have leaked, they will suffer consequences. In some cases, it’s criminal — these are criminal acts when they release information like this. And we will conduct thorough investigations, as we have in the past.

The notion that my White House would purposely release classified national security information is offensive. It’s wrong. And people I think need to have a better sense of how I approach this office and how the people around me here approach this office.

We’re dealing with issues that can touch on the safety and security of the American people, our families, or our military personnel, or our allies. And so we don’t play with that. And it is a source of consistent frustration, not just for my administration but for previous administrations, when this stuff happens. And we will continue to let everybody know in government, or after they leave government, that they have certain obligations that they should carry out.

But as I think has been indicated from these articles, whether or not the information they’ve received is true, the writers of these articles have all stated unequivocally that they didn’t come from this White House. And that’s not how we operate.

Q Are there leak investigations going on now — is that what you’re saying?

THE PRESIDENT: What I’m saying is, is that we consistently, whenever there is classified information that is put out into the public, we try to find out where that came from.

Okay? Thank you very much, everybody. Thank you.

–Remarks by the President, June 8, 2012.

Subsequently, also on June 8, Attorney General Holder announced that he had appointed two Justice Department prosecutors (in the chain of command) to conduct investigations into at least some of the leaks. Republicans, meanwhile, have been calling for the appointment of an Independent Prosecutor.

Significantly, leaks relating to procedures employed and the president’s role in conducting “targeted killings” may not have been referred to Attorney General Holder for investigation, at least according to some reports.

See “White House adviser rebuffs questions on leak probe, amid warnings of security risk,” FoxNews.com, June 17, 2012. According to Fox News,

“Recent leaks on sensitive programs have contributed to two New York Times stories, one on the campaign of cyberwarfare against Iran and one on the president’s involvement in approving the “kill list” of terror targets for U.S. drone strikes — as well as the Associated Press newsbreak on a foiled bomb plot out of Al Qaeda in the Arabian Peninsula.

“Fox News has confirmed that investigations are currently looking into the leaks on the anti-Iran campaign and the bomb plot — it’s unclear whether any probe will examine leaks on the drone program.”

If true, this would appear to be a clear departure from what President Obama said he would do at the press conference on June 8, and to constitute either an admission that those leaks came from the White House or a coverup to hide the identities of the leakers.

In the meantime, judging from the time taken to conduct investigations into cases of individuals involved in torture, and the results, we are likely to be well past the presidential elections in November before any results of the investigations are announced. One can only speculate on what prosecutions, if any, might be undertaken, and when the corresponding individuals might be brought to trial.

The significant point here is not that the individuals who leaked this information must be tried, though certainly in the case of the cyber warfare against Iran a very strong case might be made.

It must be acknowledged that we as citizens depend on probing investigative reporting on covert and classified actions by our government, in order to have some sense of the policies the government is carrying out in our name. In general, journalists should not be prosecuted for gathering and reporting such information, or for maintaining the confidentiality of their sources.

The point is that Obama’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”.

If he wasn’t, as we noted on June 10, we may be witnessing a “Watergate moment”. 

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.

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

Saturday, June 23rd, 2012

A lot of wasted time and diplomatic effort could be saved if the world’s leaders insisted on their top international lawyers sitting in on critical decisions affecting foreign policy and national security.

The latest example is provided by the floating of the idea of the United Kingdom giving Bashar al-Assad a grant of immunity from prosecution (“clemency”) for the crimes he has committed–and is committing today–against the Syrian people, including war crimes, crimes against humanity, and other grave violations of fundamental human rights.

See David Usborne and Alastair Beach (Mexico City), “Assad could be offered new clemency deal,” The Independent, June 21, 2012.

Patrick Wintour (political editor), “Assad may be offered clemency by Britain and US if he joins peace talks: Initiative comes after Cameron and Obama received encouragement from Putin during G20 talks in Mexico,” The Guardian, June 20, 2012.

According to The Guardian,

Britain and America are willing to offer the Syrian president, Bashar al-Assad, safe passage – and even clemency – as part of a diplomatic push to convene a UN-sponsored conference in Geneva on political transition in Syria.

The initiative comes after David Cameron and Barack Obama received encouragement from Russia’s President Vladimir Putin in separate bilateral talks at the G20 in Mexico.

…Britain is willing to discuss giving clemency to Assad if it would allow a transitional conference to be launched. He could even be offered safe passage to attend the conference.

During talks at the G20, British and American officials were convinced Putin was not wedded to Assad remaining in power indefinitely, although even this limited concession is disputed in Moscow.

On the basis of these discussions, the US secretary of state, Hillary Clinton, will now seek to persuade the former UN secretary general, Kofi Annan, to change the format of his plans to construct a contact group on Syria, and instead host a conference using the transition on Yemen as the model.

Participants would include representatives of the Syrian government, leading figures in the opposition, the five permanent members of the UN security council and key figures in the region, such as Turkey and Saudi Arabia. Russia has been pressing for Iran to be able to attend.

The meeting, under Annan’s chairmanship, would be held by the end of the month with an objective of establishing a broader-based government leading to elections in 18 months time.

A Small Problem: The U.N. Convention Against Torture

The United Kingdom, the U.S. and Switzerland are all parties to the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention on Torture”).

The Convention defines “torture” as follows:

Article 1
(1) For the purposes of this Convention, 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….

Article 2 establishes:
(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.

Article 4 provides:
(1) Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
(2) Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Finally, and of particular relevance here, Article 5 establishes:
(1) Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(i) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(ii) When the alleged offender is a national of that State;
(iii) When the victim was a national of that State if that State considers it appropriate
(2) Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.

Al-Assad’s pervasive use of torture is well-documented.

While the United States is quite accustomed to not prosecuting individuals involved in violations of the Torture Convention, the same cannot be said for the United Kingdom and Switzerland (the site of the proposed conference), who do not share the Obama administration’s disdain for international law. In the case of the U.S., a number of officials directly involved in the Bush torture policy have not been prosecuted, in violation of Article 5(2) of the Convention. These include, notably, John Brennan, President Obama’s direct assistant in selecting targets (and advisor on “just war theory”) in decisions regarding targeted executions.

In a word, the idea of granting safe passage and even clemency to Bashar al-Assad, to enable him to attend a conference in Geneva being arranged by Kofi Annan, is a total non-starter.

It would be the height of folly to begin an attempt to resolve the Syria question by committing violations of the U.N. Convention on Torture.

Obama and Cameron would know this if they were listening to their top international lawyers. The fact that Obama isn’t is not very surprising. But the fact that the British Prime Minister is apparently similarly unadvised is, in the context of British politics, somewhat shocking.

These leaders should do their homework before they start leaking to the press about the latest bright idea they have had.

For that matter, they might also bear in mind, in seeking to emulate “the Yemen model”, that Yemen itself is a party to the Convention on Torture and that, further, Saleh’s amnesty in Yemen is not only highly dubious under international law, but also not likely to stand up over time, as precedents in other countries such as Argentina and Chile suggest. Russia is also a party to the Convention on Torture.

Hiding Behind the Kofi Annan Smokescreen

As for the idea of organizing a conference under Kofi Annan’s leadership, the effort is just a continuation of the 6-point peace plan and the smokescreen the U.S., the U.K. and others have thrown up to give the impression they are doing something to stop the killing in Syria, when they are not–at least not publicly.

Kofi Annan and the Security Council’s adoption of his six-point peace plan, and the subsequent establishment of the UNSMIS monitoring mission in Syria, have been a total disaster. Nothing has been achieved, while thousands more have died and the country hurtles toward an all-out sectarian civil war as a direct result of the time that has been lost.

It is interesting to try to identify the indicators that would constitute a failure of the Kofi Annan plan, of his failure as a mediator, or of the failure of his latest effort to keep control of the action (acting on Russia’s behalf, many would say) by creating a “contact group” or organizing a political transition conference.

If these indicators or parameters of failure cannot be identified, we must necessarily conclude that the Kofi Annan plan is a plan that cannot fail, that Kofi Annan is a mediator who cannot fail, and that his next act, whether a “contact group” or a conference in Geneva, cannot fail either.

Who could oppose a peace plan that cannot fail, and a mediator who cannot fail? How, indeed, could anyone oppose a conference in Geneva that cannot fail?

Of course, one’s perspective could influence one’s answer. Unfortunately, those who have died and who will die in Syria as a result of the peace plan that cannot fail, the mediator who cannot fail, and the peace conference in Geneva that cannot fail, cannot speak. So, we cannot really know what they would have to say.

But we can use our imaginations.

It is as if one were living in and directly experiencing the war crimes and crimes against humanity of Adolf Hitler during the Third Reich, in 1943, and at the same time calling for a peace conference in Switzerland with representatives of all the participants in Germany and the leading outside powers to reach an agreement on the future of Germany.

It will not work, and much time will be lost.  The proposal plays directly into the hands of al-Assad, who can drag out the negotiations forever as he continues his atrocities. Similarly, it plays directly into the hands of the Russians, who seem to be able to keep the Americans and the British on the hook by continually dangling in front of their eyes the illusion that someday, somehow, Russia might go along with a Security Council resolution with some teeth in it.

If the U.S., NATO, the Arab countries and the other civilized countries of the world have not yet learned that any agreement signed by al-Assad would not be worth the paper it was written on, they have taken historical stupidity to a new height.

As the head of the editorial page of  the Daily Star, Michael Young, wrote on February 23, 2012, some months and many thousands of lives ago, the policy of the U.S. in Syria is “pathetic”.

It consists of cynically pretending there is a community of interests with respect to Syria among Russia, China and Iran, on the one hand, and the United States, NATO, the Arab countries and rest of the civilized world, on the other, while unbridled barbarism continues to unfold before our eyes.

To be sure, in the shadows (but leaked to the press), the United States is now actively assisting and coordinating the provision of arms to the rebels in Syria, together with Qatar, Saudi Arabia and other countries including Turkey.

This covert policy is being pursued without any public legal justification, which as we have suggested in previous articles is readily available. Whatever relative weaknesses such a legal justification might have, they would pale in comparison with the defects in the U.S. legal justification for the use of drones in Somalia and Yemen, in general, and for their use in “signature strikes” against unknown individuals, in particular.

Will the U.S. strategy of overtly supporting Kofi Annan and his hopeless plans while at the same time coordinating the supply of weapons to the insurgents in Syria help President Obama get past the finish line of the November elections? Or will it lead to Syria blowing up, a powerful Republican challenge to Obama on foreign policy, and his losing the election? Republican candidate Mitt Romney has been relying on kind of a Team B for foreign policy advice up until now. Once the party’s foreign policy heavyweights, from Henry Kissinger to Condi Rice, enter into the fray, joining John McCain, a formidable challenge to Obama could arise. Stay tuned.

You don’t negotiate a cease-fire or an armistice at a peace conference. The idea of trying to do so is absolutely wrong-headed, as wrong-headed as trying to use 300 unarmed peace monitors to force al-Assad to stop the killing.

The assumption that you can negotiate with al-Assad, and that if he agreed to any settlement it would mean anything, is contradicted by every piece of evidence that we have.

The whole idea of Kofi Annan and a conference in Geneva, or a “contact group”, is just one more installment in the U.S. foreign policy fiasco in Syria brought to you by President Obama, “the covert commander-in-chief”, and his foreign policy juggernaut, “the gang who couldn’t shoot straight”.

Somehow, the word “pathetic” seems too weak.

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.

Baltasar Garzón presenta recurso de amparo al Tribunal Constitucional contra su condena en el caso de las escuchas Gürtel

Monday, May 14th, 2012

La justicia en España tiene un chance más para salvaguardar su prestigio.

Baltasar Garzón, como era esperado, ha apleando ante el Tribunal Constitucional la sentencia en el caso de las escuchas Gürtel, que le costá su puesto y su carrera en la Audiencia Nacional.

Véase

Julio M. Lázaro, “Garzón alega ante el Constitucional que el Supremo vulneró su independencia; El exjuez recurre en amparo la sentencia que le condenó a 11 años de inhabilitación,” El País, 9 de mayo de 2012.

Como se trata de un recurso de amparo, no es obligatório que el Tribunal Constitucional conozca de fondo la sentencia recurrida.

Pero visto que el conjunto de casos contra Garzón y la manera por la cual fueron manejados por el Tribunal Supremo, y especialmente los gravísimos errores en el caso de las escuchas Gürtel, invitan una comparación con la injusticia del ínfamo Caso Dreyfus de Francia a fines del siglo XIX, hay que esperar que el Tribunal Constitucional abre el proceso de conocimiento del fondo, a la brevedad.

El Observador Incisivo
(The Trenchant Observer)

Stop the killing: Stop al-Assad, Putin, and Kofi Annan’s peace plan—Obama’s Debacle in Syria — Update #27 (April 21)

Saturday, April 21st, 2012

News Update
See Alexandra Sandels, “Syria street protests met with force; On a day when U.N. monitors are missing, Syria government forces try to prevent demonstrations, firing on protesters in some cases, activists say. Continued shelling and at least 57 deaths are reported,” Los Angeles Times, April 21, 2012.

It is time to stop the charade of Kofi Annan’s six-point peace plan, NOW.

It makes no sense to send ceasefire monitors into Syria when there is no ceasefire to monitor. It makes no sense to reach “agreement” with al-Assad on anything, as his word is absolutely worthless.

The flawed concept that you can or should negotiate cessation of the commission of war crimes and crimes against humanity with a war criminal, in exchange for a “peace” that will enable him to remain in power and to continue his reign of terror, is a cynical cop-out and surrender to the forces of evil in Damascus, Moscow, Bejing, and Tehran.

Syria, Russia, China, and Iran–these are the evil actors, the evil forces, which continue to support the wanton commission of war crimes, crimes against humanity, and other widespread and grave violations of fundamental human rights by the government of Syria.

See The Trenchant Observer’s earlier articles on Syria, including the 26 “updates” on “Obama’s Debacle in Syria”, in order to fully understand the “Pied Piper’s path” we have been following as we pursue the chimera of peace under the “Pied Piper” Envoy’s peace plan–which was a craven surrender to the Russians from day one.

We cannot stop the killing by continuing on this path.

The Security Could should not send monitors to Syria at this time.  Indeed,  bearing in mind the experience of the Arab League monitors last year–who al-Assad brilliantly played as fools–the Security Council should not send monitors to Syria until the government of Syria has stopped committing war crimes and crimes against humanity.  Promises and asssurances from the Syrian government are worthless and should be given no credence.  Only facts on the ground should guide actions.

Meanwhile, the time has come for military intervention by the civilized world–which does not include Russia, China and Iran, who by supporting al-Assad are accomplices to the ongoing commission of war crimes and crimes against humanity.

It is time to stop the U.N.’s six-point peace plan process–which is an illusion.

It is an illusion of peace which serves as a shield against military action that might halt the killing–and which serves to maintain al-Assad in power. 

The hope that the Russians might come around and not veto a resolution in the Security Council authorizing the use of military force is also an illusion. It is not going to happen.  Not this year.

It is time to stop playing Russia’s and al-Assad’s game.

It is time to stop the killing in Syria. “by all necessary measures”, with or without Security Council authorization.  There is a basis in international law for such action without Security Council authorization.

In any event, the legal basis in international law for such action is certainly far stronger than the legal basis for targeted killings by U.S. drones and speacial forces in many cases, and particularly those far from the war theater in Afganistan.

Military options should be readied on the most urgent basis, and used soon if not immediately to stop the killing in Syria.

This may take some guts, some courage by leaders in the West, the Arab countries, and the rest of the civilized world.

But if they do not act to effectively stop the killing, the likelihood is this generation of leaders will be remembered as the Neville Chamberlain’s and the Édouard Daladier’s of the 21st century. (Chamberlain and Daladier sold out the Czech people in 1938 at Munich through the infamous “Munich Pact” recognizing Hitler’s annexation of the Sudetenland.)

Or today’s leaders may be remembered as the Dutch U.N. peacekeepers at Srebrenice who watched without raising a finger as over 8,000 men and boys were massacred in July 1995.

It is time to intervene in Syria to stop the killing.

For the sake of humanity.  Pour l’humanité.

The Trenchant Observer

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

For links to other articles by The Trenchant Observer on this topic, and others, click on the title at the top of this page to go to the home page, and then consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here.

Attorney General Eric Holder offers legal justification for targeted killings of U.S. citizens abroad

Saturday, March 24th, 2012

On March 5, 2012, U.S. Attorney General Eric Holder offered a legal justification for U.S. targeted killings directed against U.S. citizens abroad.

For the text of the speech as prepared for delivery, see “Attorney General Eric Holder Speaks at Northwestern University School of Law, Chicago ~ Monday, March 5, 2012,” Department of Justice, March 5, 2012 .

For news reports, see

Peter Finn and Sari Horwitz, “Holder: U.S. can lawfully target American citizens,” Washington Post, March 5, 2012.

Eyder Peralta, “Attorney General Holder Defends Targeted Killings Of Americans,” The Two-Way (NPRs News Blog), March 5, 2012.

Spencer Ackerman, “Here’s Why the Government Thinks It Can Kill You Overseas,” Wired, March 5, 2012.

For earlier articles by the Trenchant Observer, use the search box in the upper right-hand corner of the home page, and search for “targeted killings”, “targeted assassinations”, “extrajudicial executions”, “al-Aulaqi”, and “drones”.

Among the more astonishing assertions contained in the speech is the claim that the “due process” requirement contained in the Fifth Amendment to the U.S. Constitution does not mean “judicial process”. The implications of this statement are so far-reaching as to be almost mind-boggling, as it would presumably apply also to actions by state governments in the United States whose constitutionality is governed by the “due process” clause of the 14th Amendment.

Further critical comment and analysis will follow.

The Trenchant Observer

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

--A list of the most recent 15 articles (on all subjects) is also found on the home page, on the right.
--A list of all articles by The Trenchant Observer and published here is found on the Articles in Chronological Order page, which has a link in the top right-hand corner of the homepage, or

here.

***

How to find news reports from around the world
–Google and other major search engines use a series of filters amounting to what has been termed a “filter bubble” to limit search results to those keyed to the location, language, and previous search results of the user. See Eli Pariser,
The Filter Bubble (2011).
–To find the latest news from around the world on any subject, you can bypass the “filter bubble” of Google and other search engines by going to and beginning your search at www.startpage.com

***

PNTR and MFN Status: Congress, Russia and Syria—Obama’s Debacle in Syria — Update #4 (March 5)

Monday, March 5th, 2012

For earlier articles on Syria by The Trenchant Observer, see the Articles on Syria page.

***

Congress need not stand idly by while Russia provides arms and ammunition and probably intelligence, financial and other support to Bashar al-Assad’s murderous regime, acting in effect as an accomplice to the the commission of crimes against humanity and war crimes in Syria.

The Senate and the House should consider carefully whether there are any bilatreral measures which might be taken against Russia in response to its support of Bashar Al-Assad’s continuing commission of crimes against humanity and war crimes. 

Whether permanent Most-Favered-Nation (MFN) status–now known as Permanent Normal Trade Relations (PNTR) status should be granted to Russia–thereby revoking the Jackson-Vanik amendment requiring presidential certification of free emingration requirements–is a question now before Congress.

–See William H. Cooper, Congressional Research Service, “Permanent Normal Trade Relations (PNTR)
Status for Russia and U.S.-Russian Economic Ties,” January 30, 2012 (7-5700, www.crs.gov, RS21123).

The establishment of PNTR status for Russia should be removed from consideration until long after the dust has settled in Syria.

There is also a question of whether MFN treatment under the World Trade Organization agreements can be suspended under special circumstances. This issue merits close consideration. 

Other bilateral benefits the U.S. grants to Russia in trade and other areas should also be examined.  If some can be indentified as candidates for suspension, the corresponding bill should be introduced into the House or the Senate at the earliest opportunity.

The Trenchant Observer

observer@trenchantobserver.com
twitter.com/trenchantobserv

The legal essence of the cases of “prevaricación” against Baltasar Garzón

Friday, January 20th, 2012

The most essential legal aspect of two of the cases against Baltasar Garzón, the case relating to the Gürtel network wiretaps (las escuchas Gürtel) and the case relating to “historical memory”, is often obscured by a focus on whether Garzón made the right decisions in these cases, or not.

That aspect is the nature of the judicial error he is accused of committing. It is not unusual for judges to reach decisions that prove to be erroneous when reversed on appeal by a higher court. This is the normal way control of legality and of the actions of judges is maintained.

But what is involved in the Gürtel network case and the “historical memory” case is something altogether different. These cases involve private criminal actions brought by the accused in the Gürtel case and by two right-wing groups in the “historical memory” case. Those who disagree with the judge’s previous decisions are now having their day in court–against the judge–in criminal actions which they themselves have brought.

The nature of the charge is signficant: prevaricación, willful decision against justice.

As the Spanish Supreme Court proceeds to deliberate and issue a decision in the Gürtel network case, after three days of an oral trial at the Court, it is useful to closely reread the texts of Articles 446 and 447 of the Spanish Criminal Code, which are the provisions the criminal action against Garzón are based on. Then, after analyzing carefully the text of the law, the reader can decide whether prevaricación has been committed or is being committed in the case, and by whom.

The following analysis is reproduced from The Trenchant Observer, “Garzon’s Accusers are Accused: Abuse of Judicial Power in Garzón Case is Stain on Spanish Judiciary, “The Trenchant Observer, April 13, 2010.

With respect to the case against Garzón, it is not an overstatement to say that the entire Judiciary in Spain is on trial.

It is difficult to comprehend how the Supreme Court of Spain has rejected earlier appeals by Garzón to halt the proceedings. Judge Varela, according to reports in El País, has jumped the gun by characterizing the facts in dispute as constituting the more serious of two possible crimes which the alleged facts could even conceivably have constituted.

The first crime is that of Intentional Unjust Decision (Prevaricación) under Article 446.3 of the Spanish Criminal Code, which provides:

Article 446

The Judge or Magistrate who, knowingly, shall issue a decision or resolution that is unjust shall be punished:

1) With sentence of from one to four years imprisonment in the case of an unjust judgment against the accused in a criminal case for a felony when the sentence has not yet been executed, and with one and a half times the same sentence if the judgment has been executed. In both cases there will be imposed the additional punishment of absolute disqualification for a period of 10 to 20 years.

2) With the sentence of a fine of six to 12 months (wages) and special disqualification from public employment or office for a period of six to 12 years, in the case of an unjust judgment issued against a defendant in the case of a midemeanor (falta),

3) With the sentence of a fine of 12 to 24 months (wages) and special disqualification from public employment or office for a period of 10 to 20 years, when he issues any other decision or resolution that is unjust.

The second crime is that of Grossly Negligent Unjust Decision (Prevaricación) under Article 447 of the Criminal Code, which provides:

Article 447

The judge or magistrate who, by gross imprudence or inexcusable ignorance (imprudencia grave o ignorancia inexcusable), shall issue a decision or resolution which is manifestly unjust shall incur the punishment of special disqualification from public employment or office for a period of from two to six years.

Given the clear precedents that exist in international law, including a judgment by the European Court of Human Rights in 2003 upholding the French conviction of Ely Ould Dah of Mauritania for torture despite the fact that he was not present at the trial and despite a law of amnesty in Mauritania, it is difficult to see how the Spanish Supreme Court could reject the appeal of the denial of Garzon’s motion for dismissal, as they in fact did.

Whether Baltasar Garzón’s decisions were correct or not in accordance with Spanish law is a matter for the Spanish courts, and ultimately the European Court of Human Rights, to decide. The European Convention on Human Rights is itself part of Spanish constitutional law.

Appealing the decisions of a judge on legal grounds is a correct and proper way to express disagreement with a decision, within a democratic state governed by law.

Criminally prosecuting the judge who is the author of that decision in an attempt to end his career, is quite something else.

A travesty of justice has already occurred, at two levels: first, the order of prosecution by Judge Luciano Varela, and second, the decision of the Supreme Court to deny Garzon’s appeal of Varela’s denial of his motion for dismissal.

How long this travesty of justice continues will tell us a lot about the Spanish judiciary and the individuals who currently hold the highest judicial offices in Spain.

The idea that a European judge could have his career in effect ended by the machinations of fellow judges against him, for ordering the investigation of where victims of crimes against humanity (forced disappearances and presumed executions) are buried, is a stain on the Spanish Judiciary, which will remain until Garzón is cleared of these charges and any other charges of a similar nature.

Should the Spanish courts persist in failing to rectify this obvious abuse of judicial power, that stain will ultimately be sealed in history with a judgment against Spain by the European Court of Human Rights.

*****

While the analysis above refers to the “historical memory” case, it applies equally to the Gürtel network case, which was tried in the Supreme Court on January 17, 18 and 19, 2012. We are awaiting the decision in that case.

The trial of Garzón for prevaricación in the “historical memory” case begins next week, on January 24.

Stay tuned.

The Trenchant Observer

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

See also The Trenchant Observer, “The Baltasar Garzón Case: In Spain, justice itself is on trial,” January 17, 2012 (updated January 20, 2012).