Archive for the ‘Justice Department’ Category

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

Friday, March 7th, 2014

Updated March 7, 2014

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

Telephone Calls to Putin

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

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

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

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

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

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

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

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

(Quote from Kissinger)

Trying to Force the Russians to meet with Ukrainian Officials

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

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

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

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

American Efforts to Assert its Leadership in Rsponding to Russia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Summary of Recommendations

In sum, the Observer’s advice is:

1. Stop the telephone diplomacy with Putin.

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

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

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

The Trenchant Observer

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

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

Thursday, February 13th, 2014

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


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

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

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

Consider the factors discussed in the previous article reproduced below.

First published on April 7, 2010

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

The Washington Post reports today that,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Trenchant Observer

Comments are invited, in any language. If in a language other than English, please provide an English translation. A Google translation will be sufficient.

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

Friday, December 20th, 2013

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

The Trenchant Observer

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

Tuesday, December 17th, 2013

UPATE (December 19, 2013)

There is more to this case than first appears.


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

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

Original article published on December 18, 2013

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

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

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

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

The arrest has caused outrage and reprisals in India.


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

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

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

The 1963 Vienna Convention on Consular Relations establishes the following:

Article 41


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

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

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

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

What were they thinking?

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

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

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

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

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

And to pass the final exam.

The Trenchant Observer

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

Monday, May 13th, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

The Trenchant Observer

Senate confirms John Brennan as CIA Director—with tally and breakdown of vote

Friday, March 8th, 2013

The United States confirmed the nomination of John Brennan to be Director of Central Intelligence on Thursday afternoon, March 7, 2013, by a vote of 63-34, with three Senators not voting.

See the official vote tally, with a break-down by senator, state, and party, here.


Senator Rand Paul’s filibuster on March 6 succeeded in enlisting a large number of Republicans to vote against the Brennan nomination.

The questions Paul raised go far beyond whether a president may kill an American citizen in the United States by a drone strike. A number of questions raised by Paul, and other critics including The Trenchant Observer, remain unanswered.

They are not academic questions. They call out not for more fancy legal analysis, bur rather for actions by Senators, Congressmen, and citizens to stop the Obama administration from violating international law and the Constitution, and to force the administration to publish—for all—their secret legal memoranda, so that citizens can react to uphold the rule of law, and leading scholars, foreign countries, and the judges of international tribunals may answer U.S. claims in their writings, state practice (official reactions by other countries), and judicial decisions.

The Trenchant Observer

UPDATE (MARCH 6) WITH LINKS TO SENATOR RAND PAUL FILIBUSTER; REPRISE: Secret Laws, the John Brennan vote, and the rule of law

Sunday, March 3rd, 2013


At 12:39 a.m. EST, Senator Rand Paul concluded a filibuster on the floor of the U.S. Senate that lasted more than 12 hours, conducting a rare “speaking” filibuster of the confirmation vote for John Brennan to be CIA Director. Brennan was approved by the Senate Select Committee on Intelligence earlier by a vote of 12-3.

The filibuster was carried live on C-Span II.

See C-SPAN for the archived debate up to the present, here.

Brennan is expected to be confirmed shortly.

But historians will look back at this dark period in which America abandoned the rule of law, and ask, “Who Spoke Up? Who opposed such actions?” Rand Paul will have a privileged place in the history they write. At least one Senator took this set of issues beyond the comfort zone. Others will stand up in voting against the Brennan nomination, some for the reasons set forth by Paul and in the article reproduced below.


REPRISE: Secret Laws, the John Brennan vote, and the rule of law

We must bear witness to the truth and fight to uphold the rule of law.

Originally published February 24, 2013

Let  us step back for a moment from the details of what John Brennan is saying now in order to get confirmed by the Senate as CIA Director.

The Senate Select Intelligence Committee vote on his confirmation, like the full Senate vote that may follow, poses fundamental moral and political questions for the Senators who will be voting.  Because the Brennan confirmation itself raises key questions regarding the struggle against terrorism and the rule of law, they will in effect be voting for a definition of American democracy as it exists today, in 2013.

Moreover, because the U.S. has been been viewed over the centuries as a beacon of liberty, their votes will have far-reaching impacts throughout the world, where the nature of democracy is also at issue.

Most importantly, perhaps, their votes will engage their own individual moral responsibilty for government actions which they, whether by acquiescence or affirmation, in effect approve of by their votes on the Brennan nomination.

These questions go to the heart of what it means to say America is a democratic nation governed by the rule of law.

In a democracy, can the government rule by secret laws?

In a democracy, can secret decrees or interpretations of legal authority be used to authorize or condone acts of torture, extraordinary renditions, or targeted killings?

What is the difference between secret star chamber proceedings in a dictatorship and secret proceedings in the U.S. Executive Branch by which it is decided that the right to life of a U.S. citizen, or a foreign citizen for that matter, is to be extinguished and that individual is then killed?

What does it say about American democracy today, in 2013, if Executive branch claims of legal authority to act extra-judicially to kill citizens of the U.S. or other countries are tacitly accepted, when the legal justifications for such actions are held in secret from the public and the Congress as a whole?

What does it say about American democracy when the constitutionality and legality of such actions, purportedly authorized by secret legal memoranda, are not subject to judicial review as a result of the Executive’s’ invocation of the “state secrets privilege”, whose broad interpretation by the Bush and Obama administrations the courts have not yet had the courage to strike down?

Can the American Democracy be said to be based on the rule of law, in 2013, under these circumstances?

Mr. Brennan is by all accounts the chief architect under Mr. Obama of the targeted killings programs of the Obama administration. In all likelihood, he is the single person who has done the most to persuade Mr. Obama, a former President of the Harvard Law Reviw and a former adjunct professor of Constitutional Law at the University of Chicago Law School, to go over to “the dark side”.

He did so in part by offering Obama moral justifications based on so-called “just war theory” going back to St. Thomas Aquinas, while ignoring the last century of developments in international law and the historical lessons they embodied.

In addition, Mr. Brennan has a deep association with the torture and extraordinary renditions programs of the Bush administration. He was unable, at his February 7, 2013 confirmation hearing before the Senate Select Intelligence Committee, to state clearly that “waterboarding” constitutes torture. Throughout his testimony he referred to acts of torture as “enhanced interrogation technicques” or, in even more Orwellian shorthand, as “EITs”.

Further, if one examines carefully the transcript of the Frebruary 7 confirmation hearing, one finds that he is a master of circumlocution and verbal legerdemain, and of telling political superiors what they want to hear.

Will he be able to enforce U.S. and international legal obligations prohibiting torture within the Central Intelligence Agency?  This appears hardly likely in view of his past, and his unwillingness to admit that even waterboarding is torture.

He has also said that the Bush torture program of enhanced interrogation techniques “saved lives”.  If he believes that to be the case, and the efficacy of torture is the standard to be applied, it is hard to see how he might avoid giving others in the CIA the impression he would give a wink and a nod to any aberrant behavior they felt they had to do.

Nor is Brennan likely to reestablish the human intelligence capabilities of the CIA, with his history of being the chief architect of the “killing lists” and the Obama policy of “targeted killings”–which is merely a euphemism for the words “extrajudicial executions” or “targeted assassinations” whenever they are conducted in  violation of international law (which may be much more often than Obama claims.)

The fact that he is extraordinarily skilled at telling political authorities exactly what they want to hear, and has other Obama officials willing to assert (on background, to be sure) that he is a voice of moral restraint within the White House, or is determined to improve the Agency’s human intelligence capabilities, should not be taken at face value. He is, after all, a spook, a trained expert in deception.  We should look at his history, his actions, and not just what he says today, in reaching any judgment about whether he should be confirmed.

Do we know yet today, for example, what role if any he played in the strange evolution of the Benghazi talking points?  His colleague, acting CIA Director Michael Morrell, could not even get his version of testimony to Congress on the talking points straight in a single day.

Can a democracy kill people on the basis of secret legal memoranda purporting to find legal authority for the Executive for such actions?

Can a democracy conduct extrajudicial killings in other countires without publishing its interpretation of international law that would authorize such killings, without subjecting its legal arguments to evaluation and responses by impartial experts from other countries, other states, and eventually the judges of international tribunals?

Can the Executive in a democracy kill individuals on the basis of secret legal justifications which are are shielded from judicial review and from the public?

That is the question. It is time that Senators take a stand on these issues, and there is no better opportunity or place to take such a stand than on the vote to confirm John Brennan.

By their votes, each Senator will incur individual moral responsibility for the actions he or she condones or rejects, and responsibility before history for the answers each gives  regarding the nature of democracy in America, in 2013.

The Trenchant Observer

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:


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,”, 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

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.

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