Archive for the ‘Pakistan’ Category

Karzai reportedly involved in massive fraud favoring Ghani in Afghan presidential run-off

Saturday, August 23rd, 2014

Stunning details of the massive fraud in the Afghan presidental run-off election have been published in the New York Times, in an article by veteran Afghan correspondent Carlotta Gall.

It appears that President Hamid Karzai was deeply involved in the fraud, which greatly and implausibly favored Ashraf Ghani, as his opponent Abdullah Abdullah has charged since shortly after the second-round election was held.

See

(1) “Leading Afghan presidential candidate, Abdullah Abdullah, narrowly escapes assassination in Kabul,” The Trenchant Observer, June 6, 2014.

(2) “Afghanistan Presidential Election: Abdullah Calls for Halt to Vote-Counting Alleging Fraud by the Electoral Commission,” The Trenchant Observer, dJune 18, 2014.

(3) “Obama Snubs Abdullah During Latter’s Trip to Washington,” The Trenchant Observer, May 22, 2010.

(4) “NEWS TO NOTE Deal by U.S. with Pakistan Military to Undercut Abdullah in Final Discussions?” The Trenchant Observer, November 11, 2009.

(5) “KARZAI’S FIGHT FOR SURVIVAL IN AFGHANISTAN—THE REAL EXTENT OF THE ELECTORAL FRAUD, ABDULLAH’S CHANCES, AND WASHINGTON’S RESPONSE,” the Trenchant Observer, October 16, 2009.

See also other articles listed on the Afghanistan page, in the upper right-hand corner of the home page, which can be reached by clicking on the banner above.

The Trenchant Observer

Brazil, Russia and the Crimea: BRICS grouping serves interests of two greatest authoritarian states, as three great democracies ignore aggression

Tuesday, July 15th, 2014

Developing

If you want to understand why the future of the international political and legal order is fraught with uncertainty, consider Brazil’s position on the Russian invasion and annexation of the Crimea.

The so-called “BRICS”, a term originally developed by foreign investors to identify the largest emerging economies, have met in Brazil and agreed to establish an investment bank which some of them fancy might come to rival the IMF. The group is comprised of Brazil, Russia, India, China and South Africa.

This group is a monumental credit to the cynical opportunism of the two greatest authoritarian states in the world, and their ability to take advantage of the naivete and vain nationalism of three of the world’s great democracies in the developing world.

The grouping has already paid dividends to the authoritarians, with the abstention of Brazil, India, and South Africa in the vote on the General Assembly resolution condemning–in the absolute mildest of terms–the Russian invasion and annexation of the Crimea.

The calculus of the authoritarians is clear: gain access to greater trade and commercial benefits while at the same time building support among Brazil, India and South Africa to abstain or not object to military aggression and violation of human rights.

The calculation on the side of India has a strategic dimension: to foster ties with Russia which has traditionally served as a counterweight to China and Pakistan, while at the same also building ties to China. Having itself invaded and annexed the Portuguese enclave of Goa in 1961, India may also not be in the best position to criticize Russia for the invasion and annexation of the Crimea. Worsening relations with the United States may also be playing a role, following the extraordinarily ill-considered and inept arrest in the U.S. of an Indian consular official last year in a case involving her former housekeeper.

As for Brazil, which already enjoys strong trade relationships with China, it is hard to understand what advantages its leaders hope to gain through the “BRICS” grouping, other than to thumb their noses at the United States, which has angered government officials by its spying activities. These caused President Dilma Roussef to cancel a state visit to Washington last fall, and are a continuing source of anger against the U.S.

Why Brazil would turn its head the other way in view of China’s and Russia’s human rights violations, particularly given Brazil’s own history in this regard and the fact that Rousseff was herself directly affected, defies logic.

Similarly, given the fact that Brazil fought in Europe alongside the Allies to defeat Hitler and German aggression and annexation of foreign territories, it is difficult to understand why Brazil now would find itself in the position of explaining to the world why it cannot take a position on as simple a question as Russian aggression in the Ukraine and annexation of the Crimea. The reasons given by the Itamaraty (foreign ministry) officials cited by Clovis Rossi in his column in the Folha de São Paulo today (see below) amount to no more than a pathetic parroting of Russian propaganda.

Brazil should be careful, however, as the president of Russia, Vladimir Putin, has just concluded a nuclear cooperation agreement with Argentina during his visit to Buenos Aires. Given the deteriorating international situation and the likelihood of further nuclear proliferation, starting with Iran, the possibility of a renewed nuclear arms race between Argentina and Brazil cannot entirely be ruled out.

It is a terrible shame that Brazil, India, and South Africa have failed to stand solidly on the side of those defending the fundamental principles of the United Nations Charter, including the prohibition of the threat or use of force, in order to pursue the chimera of solidarity with the world’s two greatest authoritarian states.

The United States has failed utterly in managing its alliance relationships in Latin America, as the actions of Brazil reveal. It hasn’t done so well in managing its alliance relationships with Europe and the NATO countries either, as demonstrated by French President François Hollande’s breaking the isolation of Putin by inviting him to the 70th anniversary celebration of the Normandy invasion, then a state dinner at the Elysée Palace (meeting Barack Obama earlier in the evening at a restaurant), and at the same time announcing that France would complete the sale of two Mistral-class warships to Russia beginning in the fall, over the strenuous objections of the U.S. and several other NATO countries. Russian sailors are already training in France to learn how to operate the vessels, one of which is to be named “The Sevastopol” and both of which, while initially destined for Pacific ports, could ventually be based in the Russian-occupied Ukrainian port of Sevastopol.

For her part, German Chancellor Angela Merkel has effectively blocked the imposition of third-stage sanctions against Russia, however earnestly and with whatever peremptory deadlines threats of their adoption may have been made.

The failure of the EU and of the U.S. to follow through on serious sanctions against Russia, as it continues its “stealth invasion” (with less and less stealth), has also done little to underline the importance of fundamental U.N. Charter principles and the need to uphold them, in particular by imposing serious and permanent sanctions against Russia for its annexation of the Crimea.

But this is no excuse for India, South Africa, and Brazil. By their actions and statements, they have demonstrated that they are not ready to play leading roles in the building and maintenance of international peace and security. To reach that level, they will need to move beyond reacting to the U.S. and Europe, and themselves assume, independently, responsibility for the building and protection of international society. This they can never do by ignoring grave violations of the U.N. Charter’s fundamental norms.

Brazil is to be congratulated for holding a magnificent and successful 2014 FIFA World Cup series.

That is no substitute, however, for taking ownership of its responsibilities as a great democracy to uphold international human rights and the prohibition of the threat or use of force across international frontiers.

See

Clóvis Rossi, “Dilma e os dois lados da Ucrânia,” Folha de São Paulo, 15 de julho 2014.

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

SENATOR RAND PAUL FILIBUSTER UPDATE

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

The vote on John Brennan’s confirmation to be CIA Director: Opinion and Commentary

Wednesday, February 27th, 2013

Recent Commentary and Opinion

“It is not going too far to say that American foreign policy has become completely subservient to tactical domestic political considerations.”

This stern verdict comes from Vali Nasr, who spent two years working for the Obama administration before becoming dean of the Johns Hopkins School of Advanced International Studies. In a book called “The Dispensable Nation,” to be published in April, Nasr delivers a devastating portrait of a first-term foreign policy that shunned the tough choices of real diplomacy, often descended into pettiness, and was controlled “by a small cabal of relatively inexperienced White House advisers.”

–Roger Cohen, “Beltway Foreign Policy,” New York Times,
February 18, 2013

Shaun Waterman, “Vote on Brennan for CIA post put off; On Benghazi attack, questions remain, “The Washington Times, February 27, 2012.

Dana Milbank, “‘Trust me’ is not enough on drone warfare,” The Washington Post, February 8, 2023 (02:38 PM EST)

Glenn Greenwald. “Debating Zero Dark Thirty and John Brennan; Both the critics’ favorite film of 2012 as well as Obama’s nominee for CIA Director are supporters of torture,” The Guardian, January 8, 2013 (18.01 EST)

See also the following articles by the Trenchant Observer:

What difference does it make if John Brennan is confirmed?
February 27, 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)
February 25, 2013

Secret Laws, the John Brennan vote, and the rule of law
February 24, 2013

Imagine: The Collapse of International Order, Syria, and Berlin in 1945
February 20, 2013

Brennan unclear in confirmation hearing as to whether “waterboarding” constitutes “torture” (with transcript)—The John Brennan File #2
February 14, 2013

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

The Trenchant Observer

What difference does it make if John Brennan is confirmed?

Wednesday, February 27th, 2013

In the end, what difference does it make if John Brennan is confirmed as CIA Director by the Senate?

1. Well, for one thing, it may be the last chance for the Senate to get control of a failed foreign policy, and to actually put someone in who would complement Secretary of State John Kerry–as a member of a team that can get the nation’s foreign policy back on a track that might avoid further disasters, and maybe even lead to some successes.

Vali Nasr, the Dean of the Johns Hopkins School of International Affairs, is publishing a book, The Dispensable Nation, which is coming out in April and is already making waves as one of the first hard-hitting assessments of Obama’s foreign policy in his first term.. And the story isn’t pretty. Obama has led the nation into one failure after another, but liberals and Democrats have been unwilling to hold him accountable. The president, after all, perfectly represents the mood of the American people, by and large, who just want to get out of Bush’s wars and focus on domestic issues.

But the world exists, regardless of what the public in general want, and it keeps turning. It keeps spinning, in fact, in ways that often seem adverse to U.S. interests, and sometimes it seems even to be spinning out of control.

Brennan’s confirmation will tilt the balance of Obama’s foreign policy team back to the place where it has been for the last four years, with Obama mainly interested in killing terrorists by drones, while at the same time dragging his feet in other international crIsis arenas, such as Syria, Mali, or even Libya (until the French and the British dragged the U.S. into it, once Security Council authorzation was secured). Obama, in the end, is not interested in foreign policy, and doesn’t know how to conduct it. So he, and we, need a strong team.

2. Brennan is the High Priest of the war on terror, the Holy Warrior leading “The Last Crusade” against the Islamic terrorist infidels. And the strategy is simple–simply to kill them before they kill us. He is not plagued by self-doubt. Obama, in becoming a warrior himself, may have modeled himself on Brennan.

The only problem is that we may have been so busy fighting this war of  targeted executions that we failed to notice, much less try to influence, strategic developments of enormous significance.

While Brennan was busy managing the “kill lists” and coordinating drone strikes on the infidels, Obama was giving up the ship to Mohamed Morsi and the Muslim Brotherhood in Egypt, offering Morsi  support and not criticism when he launched his legal coup d’etat on November 22, abrogating the rule of law in the nascent democracy of Egypt. Morsi pushed through his illegitimate constitution, shutting down the Constitutional Court with brown-shirt tactics in the street.

What difference does that make?

Well, for one thing, al-Azhar university, which is the highest center of Islamic learning in the city which is the cultural capital of the Arab world, is now facing increasing pressure from the Muslim Brotherhood and the Salafists to assume a more fundamentalist approach to religious issues. These include those covered by the sharia, or Islamic law, now raised to a position of preeminence in Morsi’s Islamist constitution.

In effect, Brennan was leading Obama to go and try to kill terrorist leaders with drones, while the geotectonic plates of the Middle East were shifting in Egypt. As this was taking place, Obama and Hillary Clinton remained frozen, unable to act as events unfolded in Egypt. Yet the success of terrorism in the Middle East and North Africa is likely to be determined much more by developments at al-Azhar that by mid-level terrorists being killed by drones in Yemen

3. Then there are the moral issues. Torture. Extraordinary renditions to states which torture. Secret CIA “black prisons”, hidden from everyone, even the International Committee of the Red Cross. And targeted executions, including “signature” strikes against unknown individuals who evidenced a pattern of activities indicating they were terrorists. Any male over 14 killed in a drone attack was automatically deemed to be a terrorist, which was one way of keeping civilian casualties down–at least for those living within the White House bubble.

It is interesting how Brennan makes his legal arguments purporting to justify targeted killings.  He paints a picture of the ideal case. The  real cases, however, where unknown boys 14 years of age or older merit having their guts spattered in the sand, are cases we don’t know about, and whose justifying legal memoranda we will never see, because they are secret, indeed if in individual cases they exist at all. A legal opinion to support an execution would have to be individual, taking the specific facts of the case into account, and public, and presented to a competent judicial authority.

4. There are also issues of individual moral responsibility, and guilt, incurred by killing people outside the civilizing strucures of law, including international law.

Senators voting on Brennan face this moral responsibility, and potentially moral guilt from sanctioning actions which, in strictly legal terms, might be characterized as presumptive war crimes or other international crimes.

Like the Argentine politicians and generals who argued they faced the cancer of terrorism, Brennan’s supporters may find plausible arguments for going along with international crimes.

Then there is the argument that we should let bygones be bygones. Just turn the page, and move on.  Of course that was not the position adopted by Justice Robert Jackson at Nuremberg.

If there is one book the Senators might want to read before voting on the Brennan nomination, it is “The Question of German Guilt”, by the famous German philosopher Karl Jaspers. Jaspers, in a series of lectures at the University of Heidelberg in 1948, articulated with elegant distinctions the kinds of criminal, political, moral and existential guilt Germans might feel or be accused of, as the blinders came off about what Hitler and the Nazis had done in the Third Reich. His analysis is exceedingly pertinent to “The Question of American Guilt”.

There are also a few films the Senators might want to watch before voting on the Brennan nomination. One of the best is “The Official Story”, winner of an Academy Award for Best Foreign Film in 1985, which addresses questions of individual moral responsibility in the Argentine context. “Judgment at Nuremberg”, with Spencer Tracy starring as Justice Jackson, would be another.

Given Brennan’s use of the “cancer” metaphor to describe terrorism’s advances, the Senators might benefit from watching “Z”, Costa-Gavras’ film about the right-wing coup in Greece. Then there is always “Missing”, a film starring Jack Lemon which in the context of Agusto Pinochet’s coup in Chile powerfully conveys the impact on individuals and families of those who abandon law in favor of pure force in their battle against the “cancer” of terrorism–as they see it.

5. We must bear witness to the truth and fight to uphold the rule of law. Just as the excesses of the “Palmer raids” in 1919, or the internment of Japanese citizens in World War II, came to be understood as great deviations from the rule of law, so too some day future historians will ask, “Did no one oppose these outrageous violations of fundamental rights, or seek to prevent them from being carried out?”

We and others, at least, must speak out–as loudly and effectively as we can–so that there is some evidence that people opposed these outrages upon the Constitution and the rule of law. The challenges we face are not as great as those faced by Sophie Scholl, who distributed pamphlets in Hitler”s Germany, for which she was executed, or others who faced the power of totalitarian states, yet nonetheless spoke out.

In seeking to answer the historians’ question, the vote of individual Senators on the Brennan nomination will be duly noted, and the judgment of history will be entered, and it will fall upon those who vote, or abstain or are absent, on the Brennan nomination in the Senate.

Did this or that Senator stand up for the rule of law, and vote against a confirmation that would send a clear signal to the world that America endorses holy warriors who have no regard for international law and human rights? Or not?

How did these Senators, on the dates of these votes, define the nature of American Democracy in 2013? That is the question historians will ask, and about which they will write.

The Trenchant Observer

Imagine: The Collapse of International Order, Syria, and Berlin in 1945

Wednesday, February 20th, 2013

There is nothing inevitable about international order.

The lessons of two world wars which informed the creation of the United Nations in 1945, and the maintenance of international peace and security for over 60 years, can be forgotten.

It is entirely conceivable that without decisive leadership from either Europe or the United States, the international order that has existed for many decades could start to wobble and even collapse.

And it is nearly impossible to conceive of such leadership emerging any time soon.

The rubble in Syria resembles the rubble in Berlin and the destruction in Germany in 1945, which occurred the last time the international order collapsed.

How bad could it get?

You could have wars like the one in Syria devastating countries in Africa, a nuclear attack on Los Angeles from North Korea, Iran with nuclear weapons and delivery systems within 5-10 years, and Israel surrounded by hostile Islamist states.

Things could fall apart.

Imagine a world without law, without international law governing the use of force which is generally observed and which states seek to uphold when it is violated.

Imagine a  world in which states use force without acknowledging they have acted, and without any obligation to publicly justify the legitimacy of their actions by reference to international law.

That is the direction in which we are heading.

The Trenchant Observer

Drone Killings, the Constitution, International Law, and the John Brennan File

Thursday, February 7th, 2013

Developing story
Check back for updates

Recent News Reports and Commentary

Michael Isikoff (National Investigative Correspondent, NBC News), “Justice Department memo reveals legal case for drone strikes on Americans; A secretive memo from the Justice Department, provided to NBC News, provides new information about the legal reasoningbehind one of the Obama administration’s controversial policies. Now, John Brennan, Obama’s nominee for CIA director, is expected to face tough questions about drone strikes on Thursday when he appears before the Senate Intelligence Committee,” Open Channel on NBC News.com, February 4, 2013.

Chris McGreal (New York), “John Brennan faces grilling over drone leak as senators demand answers; Nominee for CIA director set for tough confirmation questions from senators angered by lack of White House clarity on drones,” The Guardian, February 5, 2013 (13.51 EST).

Spencer Ackerman, “How Obama Transformed an Old Military Concept So He Can Drone Americans,” Wired, February 5, 2013 (10:16 AM).

Department of Justice, White Paper, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al Qa’ida or an Associated Force,” MSNBC, February 5, 2012.

John Brennan’s Senate Confirmation Hearings to be the Director of the CIA

It is clear that the confirmation of John Brennan by the U.S. Senate should at the very least be delayed until a number of very disturbing questions have been answered relating to the U.S. drone operations and kill lists directed by Brennan from the White House and by other agencies.

The leaking on February 4 and subsequent acknowledgment by government officials of an unclassified “Department of Justice White Paper” on the legal justification forthe killing of U.S. citizens in particular, and the drone operations in general, has raised more questions than it has answered, and led to calls by Senators for release of the full classified legal memorandum upon which it the White Paper was based.

Suddenly, Barack Obama’s secrecy bubble within which he and Executive branch officials convinced themselves that the drone strikes at targets on their kill lists, including the execution of American citizens such as Anwar al Aulaqi, are justified under the U.S. constitution, by domestic law, and under international law, has burst.

Now their legal justifications must be examined in the light of day.

Outside President Barack Obama’s secrecy bubble, the self-assurance of officials who have been talking essentially to themselves for the last four years, and longer, will necessarily give way to to a more objective consideration of their legal arguments, and also of the strained efforts the Bush and Obama administrations have undertaken to keep their actions and legal arguments from judicial review.

The very idea of a “secret” legal memorandum justifying the execution of individuals, including U.S. citizens, is at variance with bedrock principles of democracy and the rule of law. The “state secrets doctrine” used by the government to prevent judicial review of its legal arguments, e.g., in the al-Aulaqi case, turns the Constitution on its head.

One cannot meaningfully speak of “the rule of law” when the legal justifications the government advances for its actions are held in secret.

It is clear that John Brennan’s confirmation by the Senate should be delayed until the many questions raised by his stewardship of the drone executions of individuals on “kill lists” which he oversaw, to which candidates might be “nominated” by different Executive branch and military officials, has been fully exposed to the light of day, and its legality under both domestic and international law has been fully examined by domestic and international lawyers outside of the Executive Branch, both in and outside the government. 

Before Brennan is confirmed to be the Director of Central Intelligence, a fresh look should also be taken by the Senators who must confirm him into his role in the torture policies of the Bush administration, and decisions not to hold accountable officials in the CIA and other parts of government for their role in the design and execution of these torture or “enhanced interrogation techniques programs”.

Brennan’s role in the “extraordinary renditions” carried out by the Bush administration, including the operation recently condemned by the European Court of Human Rights in a case involving Macedonia, should also be thoroughly explored. Senators should confirm whether or not the U.S. has participated since 2009 in any further “extraordinary renditions” or maintained any “black sites” where detainees were secretly held in foreign countries, including allegations that some were being held or had been held at the CIA black site operation in Benghazi prior to the September 11, 2012 attacks and murder of Ambassador Chris Stevens.

There is a significant possibility that John Brennan, under applicable norms of international law, could in the future be charged in some foreign country with complicity in the international crime of torture, and in war crimes that drone strikes outside the bounds of international law may constitute.

Before he is confirmed, Senators should have clear and persuasive answers to these questions and others related to the legality of drone executions, the Bush torture program, extraordinary renditions, CIA black sites, and John Brennan’s role and actions in each of these areas.

The Trenchant Observer

See also the following articles by Trenchant Observer published earlier, which are listed on the “Targeted Killings Page”, and also below:

The Obama Leaks: The issue is not the leaks, but whether the president lied to the American people
July 4, 2012

“A time to break silence”: Dr. King on the Vietnam war, and President Carter on America’s human rights violations (revised June 28)
June 27, 2012 (updated June 28, 2012)

Holder’s Investigations into Torture and Covert Operations Leaks–An Obama Cover-up?
June 26 2012

Did the White House authorize recent leaks on covert programs?
June 10, 2012

Foreign policy incompetence; further opinion on President Obama as “Executioner in Chief”
June 6, 2012

More news and opinion on President Obama as “Executioner in Chief”
June 3, 2012 (Updated June 4, 2012)

President Obama as “Executioner in Chief”
June 1, 2012

Attorney General Eric Holder offers legal justification for targeted killings of U.S. citizens abroad
March 24, 2012

Obama’s foreign policy juggernaut, including Tom Donilon, and the risks of hubris (updated)
January 27, 2012

Drone Attacks and Other “Targeted Killings” — State Department Legal Adviser Invokes International Law Limits
September 24, 2011

International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World
July 17, 2011

Strategic disarray in Afghanistan
October 3, 2010

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council
June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations
May 20, 2010

Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
April 7, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications
February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

European court of human rights condemns Macedonia for “extraordinary rendition” to cooperating CIA officials, in Khaled el-Masri case

Friday, December 28th, 2012

News to Note

See

Nicholas Kulish, “Court Finds Rights Violation in C.I.A. Rendition Case,” New York Times, December 13, 2012.

Amrit Singh, “European court of human rights finds against CIA abuse of Khaled el-Masri; America must now apologise to the German citizen, a victim of mistaken identity who was kidnapped and beaten by the CIA,” The Guardian, December 13, 2012.

Richard Norton-Taylor, “CIA ‘tortured and sodomised’ terror suspect, human rights court rules; Landmark European court of human rights judgment says CIA tortured wrongly detained German citizen,” The Guardian, December 13, 2012.

For a detailed description of the judment, see “Macedonian Government responsible for torture, ill-treatment and secret rendition of a man suspected of terrorist ties,” Press Release, issued by the Registrar of the Court, Doc. ECHR 453 (2012) 13.12.2012.

The decision was made by a unanimous vote of the 17-member Grand Chamber of the Court, comprised of the following members:

Nicolas Bratza (United Kingdom), President,
Françoise Tulkens (Belgium),
Josep Casadevall (Andorra),
Dean Spielmann (Luxembourg),
Nina Vajić (Croatia),
Peer Lorenzen (Denmark),
Karel Jungwiert (Czech Republic),
Khanlar Hajiyev (Azerbaijan),
Isabelle Berro-Lefèvre (Monaco),
Luis López Guerra (Spain),
Ledi Bianku (Albania),
Işıl Karakaş (Turkey),
Vincent A. de Gaetano (Malta),
Julia Laffranque (Estonia),
Linos-Alexandre Sicilianos (Greece),
Erik Møse (Norway),
Helen Keller (Switzerland)

Commentary

Whoever President Obama’s nominee to be Director of the CIA may turn out to be, the first question in his or confirmation hearings should be to explain the international law underpinnings of this decision, and their implications for extraordinary renditions, torture, and the use of drones under current U.S. policy.

Obama and U.S. intelligence officials, including John Brennan and others in the White House don’t “get” international law.

The confirmation hearings should make sure that they do. International law is the language of international relations in the world today, not 17th century “just war theory” as Brennan, the President and other national security officials would have us believe.

Any nominee to be the head of the CIA sould know every detail of this case by heart, and be able to explain it to any member of the Senate. Obviously, it will also be important to know precisely what the involvement of the nominee, if any, has been in cases of extraordinary rendition, torture, and the use of kill lists and drones to conduct extrajudicial executions, both inside and outside the theater of the war in Afganistan

The Trenchant Onserver

REPRISE: The U.N. Charter, International Law, and Legal Justifications for Military Intervention in Syria—Obama’s Debacle in Syria — Update #90 (December 12, 2012)

Wednesday, December 12th, 2012

This article was first published on September 1, 2012

The situation in Syria (is) unfolding “in front of our eyes”, with the regime deploying fighter jets against the people, in addition to heavy artillery and tanks, (Ahmet DAVUTOĞLU, the Foreign Minister of Turkey, told the Security Council on August 30). “How long are we going to sit and watch while an entire generation is being wiped out by random bombardment and deliberate mass targeting?” he asked. “If we do not act against such a crime against humanity happening in front of our eyes, we become accomplice to the crime,” he warned.

As we wrote following the August 30 meeting of the Security Council,

Everyone wants a ceasefire and an end to the killing. Few seem to have come to grips with the fact that the use of force will be required, outside the framework of the Security Council. There can be little doubt that, within the Security Council itself, there is not going to be any agreement to use force (or even to adopt strong economic sanctions) to bring al-Assad’s barbarism to a halt.

This will have to be done outside the framework of the Security Council. What is needed is for one or more countries, preferably but not necessarily acting as a coalition, to just act to set up the safe zones, and one or more accompanying no-fly zones if that is required as a result of al-Assad’s response.

–U.N. Security Council Meets: More “blah, blah, blah”, and no action—Obama’s debacle in Syria — Update #82 (August 30), August 31, 2012.

Such action should be accompanied by a justification under international law.

That justification should stress that the purpose of the action is to protect the population of Syria against the commission of war crimes and crimes against humanity.

The stated purpose of the operation should not be to overthrow the government of Bashar al-Assad, which is impermissible under international law. On the other hand, it would be permissible if an operation which protected the population against the commission of such crimes also facilitated a process that would bring to account those in Syria who are responsible for the commission of war crimes and crimes against humanity.

While such fine distinctions may seem of little significance to those not versed in international law, they are in fact quite important in terms of limiting the precedent that would be set and obtaining support from other countries for such action, if not immediately at least over time.

For further discussion of legal justifications for intervention in Syria, see the following articles by The Trenchant Observer and the sources cited therein:

Continuing massacres in Syria, at Daraya and elsewhere; legal justification for military intervention — Obama’s Debacle in Syria —Update #78 (August 26), August 26, 2012

REPRISE: Humanitarian Intervention in Syria Without Security Council Authorization—Obama’s Debacle in Syria— Update #68 (July 25), July 25, 2012

Military Intervention to establish “no-kill zones” and humanitarian corridors—Syria Update #9 (February 25), February 24, 2012

The critical issue with respect to legal justifications for establishing and defending “safe zones” or “no-kill zones” in Syria, and the establishment of no-fly zones if required, is whether such action would violate Article 2 paragraph 4 of the United Nations Charter. Article 2(4) provides:

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

On the face of it, the use of force to enforce a no-fly zone, or to defend a “safe zone” from assaults by Syria’s army, would involve an action against the “territorial integrity” of Syria. This is the horn of the dilemma.

Read literally, any permanent member of the Security Council could, through the use of its veto, block any military action by any state within the territory of another state, except in the case of an “armed attack”, no matter what the circumstances. In principle, such a veto could block any action by the civilized nations of the world to bring to a halt a war crimes and crimes against humanity, ethnic cleansing such as occurred in Kosovo, or even genocide such as that conducted by Adolph Hitler during World War II.

Various interpretations of the Charter have proposed ways out of this logical box. One is the so-called “teleological” interpretation, by which Article 2(4) must be interpreted not literally, but rather in the light of the general purposes of the U.N. Charter and its other principles. Using this approach, one might justify the establishment of “no-kill zones” and “no-fly zones” in Syria.

The problem is that such “teleological” interpretations might open Pandora’s box, allowing multiple interpretations and opportunities for abuse by states intervening for their own purposes, e.g., to overthrow the al-Assad regime, while putting a humanitarian argument forward to justify their actions. Or, to cite another example, Israel and the United States might attempt to justify an attack on Iran to take out or greatly degrade its nuclear enrichment capabilities and what they believe is a secret program aimed at developing nuclear weapons, on the rationale that it is necessary to maintain international peace and security.

Alternatively, Israel and the United States could in principle attempt to justify an attack on Iran as an exercise of the right of individual and collective self-defense, an exception to the prohibition in Article 2(4) contained in Article 51 of the Charter, which provides:

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The key words in Article 51 are “if an armed attack occurs”, which has been interpreted as embodying the requirements that the armed attack have occurred or be imminent, immediate and leave no time for other actions. Exercise of the right of self-defense has traditionally been subject to the requirements “immediacy, necessity and proportionality”.

See Flavio Paioletti, “The 21st Century Challenges to Article 51,” e-International Relations, June 30, 2011.

The United States and other nations have not always acted within this tight legal framework. In 1999, for example, the United States and NATO conducted a unilateral bombing campaign against Serbia in a successful effort to get the government to stop its policy of ethnic cleansing in Kosovo. Despite its humanitarian purpose, no legal justification was advanced by the U.S. Department of State for the action.

In Iraq, the United States sought to justify its 2003 invasion of that country both on the basis of previous Security Council resolutions and on the basis of the “right” advanced by the Bush administration to “pre-emptive self defense”.

The concern of states and legal scholars from around the world is that by allowing “teleological” interpretations of Article 2(4) or expansive interpretations of what constitutes “an armed attack” creating a right of individual and collective self-defense, such interpretations would open the door to increasingly expansive assertions of the right to use force across international frontiers. It is significant that in the case of Kosovo, no legal justification was offered.

So, we are left with the legal regime brilliantly defined by the founders of the United Nations to establish rules and mechanisms to effectively regulate the international use of force, on the one hand, and the fact that as the populations of more and more countries seek to demand respect for their fundamental human rights, and the right to participate in government, existing dictorships may resort to the appalling use of terror and crimes against humanity and war crimes in defending their hold on power, as has happened recently in Libya and Syria.

Unlike domestic laws and the constitution in the U.S., the United Nations Charter and other international agreements are subject to rules of strict interpretation, as established in the Vienna Convention on the Law of Treaties. This makes sense, as nations are generally extremely wary of ceding authority to international institutions, and rules of strict interpretation are necessary in order to secure participation in international treaties. While the United Nations Charter is something of a special case, since very few countries would consider withdrawal from the organization, acceptance of the compulsory jurisdiction of the International Court of Justice remains voluntary, a fact which underlines the continuing importance of rules of strict interpretation.

Caught in this logical box, are we to stand idly by as tens of thousands or hundreds of thousands of human beings are slaughtered, whenever a permanent member of the Security Council exercises a veto?

The United Nations Charter is 67 years old. It has survived the Korean war, the war in Vietnam, the invasions of Hungary, Czechoslovakia, and Afghanistan (1980), the Balkan wars, genocide in Rwanda and the Sudan, and the U.S. invasion of Iraq.

The fundamental question is whether states should: (1) simply act outside the charter when they feel compelled to do so for humanitarian reasons (e.g., Kosovo); (2) justify their actions on legal grounds, preferably as taken with the support of regional organizations (e.g., NATO) or a broad coalition of nations; or (3) do nothing in the face of acts of barbarism such as those being committed in Syria.

In the case of Kosovo, Russia brought a resolution to a vote in the Security Council which condemned the bombing of Serbia, but the resolution was defeated 12-3.

Perhaps that is as close to 100% compliance with the Charter norms as we can get in the world today.

The ultimate choice is between undertaking effective action that will halt the atrocities in Syria, or sticking with our current policies.

In the case of the U.S., the current policy is carefully calibrated to comply with the requirements on the use of force laid down by the International Court of Justice in 1986 in the Nicaragua case. In that case, the Court held that direction and control of rebel groups was required in order for assistance to rebel groups to constitute an armed attack, thereby triggering a right of individual or collective self defense.

If the decision is made to establish safe zones and associated no-fly zones (if necessary), a final choice is whether to provide some legal justification for such action, or to follow the example of the United States in the NATO bombing of Serbia in 1999, and offer none.

While the choice here is not entirely clear, a strong argument can be made for advancing a highly restrictive legal justification, narrowly tailored to the circumstances in the Syrian case, together with the support of a regional body such as NATO, and undertaken only as a provisional measure of protection until such time as the Security Council can act effectively to protect the population of Syria from the commission of war crimes and crimes against humanity.

Russia may bring a resolution condemning such action in the Security Council. Assuming the resolution is defeated by a healthy margin, as occurred in the case of Kosovo, this may be the closest to compliance with the Charter as is possible today.

The Trenchant Observer

Lies, Spies and Politics: The Incredible Evolution of the Benghazi “Talking Points” Narrative–Part I

Thursday, November 22nd, 2012

DRAFT–developing

Intelligence agencies use deception as a standard operating procedure. CIA operations are by nature secret, and intelligence agencies go to great lenghts to keep them secret, even if their existence sometimes may be leaked if it suits the president’s purposes.

It should come as no surprise, therefore, that the reporting by American reporters on the Benghazi attacks has been mostly based on off-the-record interviews with administration officials, and that the latter have presented their revelations and confirmations in ways which pursue their own objectives, on background, usually on deep background where even the agency of the source is not revealed. Such reporters seem quite content to simply pass on the latest “revelations”, without vetting them against other known facts and statements. Often, it does not add up.

The constantly evolving narrative of the CIA “talking points” used by Susan Rice on the Sunday talk shows on September 16 illustrates the confusion of such spinning by intelligence officials whose modus operandi is deception and secrecy. First we learn that the so-called talking points were drafted by the CIA. Then we learn they were changed by someone, but all the intelligence chiefs testified that they didn’t know by whom. Then we learn that the CIA draft was not changed by the intelligence agencies, but sent up to the NSC Deputies Committee. Wednesday we learn that the DNI now says that they edited the talking points, as did other agencies.

None of the edits were necessary for national security reasons, in the original opinion of the CIA. Intelligence officials on background justify their edits on the grounds that leaving in the references to al-Queda affiliates and sympathizers would have revealed methods and sources, thereby revealing methods and sources.

On Wedneday, Susan Rice reiterates that she only told the talk shows what was in the talking points. The media fail to point out that she also included references in her statements on those shows to “armed individuals” and “small groups of armed individuals” in an effort to stress the disorganized nature of the attack, when such presumably classified information was not in her “talking points”.

The first duty of a journalist used to be to get to the bottom of things, to sort out all the conflicting evidence and tell the audience what it means, not simply to pass it on. The Washington press corps has, by and large, failed to get to the bottom of things. That is why, two months and 11 days after the attacks at Benghazi, we the public still don’t know for sure exactly what happened, or exactly what the CIA black operation was doing in Benghazi.

Were they providing arms to the Syrian rebels?

The press has failed, spectacularly, to provide an answer to this question, which lies at the heart of the Benghazi affair.They have done so, presumably, because they were asked to withhold those details by the Obama administration’s intelligence agencies. With very few and limited exceptions, the fact that they have published no further details about the CIA’s black operation in Benghazi demonstrates the extent to which the Washington press corps has become a servile instrument of the Obama administration’s foreign policy.

The fact that the administration was able to control the media’s reporting of the CIA’s black operation in Benghazi should be a matter of extraordinary concern to citizens of a free country who are utterly dependent on a free press, and a free press which to be meaningful must aggressively seek out and publish the facts even when the government wants to keep them secret.

Indeed, more broadly, there has been precious little fundamental criticism of Obama’s foreign policies and the details and quality of their implementation.

What were the CIA’s operatives doing in Benghazi?

The answer is of overriding importance for the development and implementation of an effective U.S. foreign policy. From a policy perspective, there is a fundamental question of whether the nation’s interests have been served by Obama’s covert operations relating to Syria, or would have been better served by an open and public policy of support for those forces in Syria who are seeking to bring to an end al-assad’s barbarism, involving widespread commission of war crimes and crimes against humanity. Such attacks have not been seen in a modern state at least since the Balkan wars of the 1990’s, and possibly since the atrocities of the German Nazi state of Adolph Hitler before and during World War II.

Some 40,000 Syrians have died as a result of the inaction of the international community, and the failure of leadership of the Obama administration. Obama has even blocked the efforts of other states to bring force to bear to halt Bashar al-Assad’s assault on the civilization and people of Syria.

Quite simply, the United States has failed to lead, and whatever beneficial results it has achieved through covert operations have come at a heavy cost. The Saudi defense minister is reportedly playing a key role in coordinating the covert supply of weapons to the Syrian opposition, just as he did with respect to supplying the insurgents in Afghanistan in the 1980’s following the Soviet invasion of that country, when he was ambassador to Washington. We are still dealing with the “blowback” from that operation, as the war in Afghanistan grinds on in its 11th year.

It should come as no surprise that Islamist groups are benefitting from this arrangement at the expense of more secular groups. This is a direct result of the U.S. pursuit of a covert policy in Syria, instead of an open policy that might have led to early confrontation with al-Assad and the saving of tens of thousands of lives.

The spill-over effects of this covert war are being felt throughout the region. Hamas was emboldened by the visit of the leader of Qatar in recent weeks. A looming confrontation between Syria and Turkey, with NATO involvement in supplying Patriot missiles to Turkey while Russia vehemently objects, demonstrations in Jordan including calls for the end of the monarchy, and a continuing threat against the independence of Lebanon, are only some of the knock-on effects of Obama’s covert policy and lack of leadership on Syria. In the

The foreign policy of the United States towards Syria should be debated in public, and carried out in public.

The press has a crtical role to play in guaranteeing that this occurs. Its job is to search out the truth and to report it to its readers and its electronic audience. That truth, and only that truth, can guide the nation in choosing a wise and effective foreign policy.

The Trenchant Observer