Posts Tagged ‘Politico’

The Carolyn Krass nomination to be General Counsel at the CIA, secret legal justifications and memos, and democratic government under the rule of law

Wednesday, December 18th, 2013

Should the President of the United States be able to conduct secret operations and activities without revealing to Congressional oversight committes the legal memoranda on which he is relying in making such decisions?

The subject came up, again, in the Senate Intelligence Committee confirmation hearings for Carolyn Krass to become the CIA’s top lawyer, on December 17, 2013.

The cute argument made in defense of the refusal to hand over certain memos relating to torture and other covert activities, prepared by the Justice Department’s Office of Legal Counsel (OLC), is that they could not be turned over because they were “pre-decisional” and needed to be kept secret to protect free debate among the president’s advisors.

This argument (with its echoes of a claim of Executive Privilege) is misleading and obscures the central fact that, in a democracy, congressional committees with responsibility for oversight of covert activities need to know the legal basis on which the president has authorized certain covert or secret activities. Without access to the written legal justifications upon which the president relied, they cannot effectively exercise oversight of the legality of the activities involved.

What the country needs is for top lawyers, from outside the national security coterie of lawyers who have been in the national security loop in the government while they or other lawyers supported torture, extraordinary renditions, targeted executions, and a whole range of covert activities in different countries, to come in and assume the top legal positions at the CIA, the State Department and other key institutions.

Such new lawyers from the outside will bring with them a fresh perspective, and a fresh approach to what is really legal or not. That is both the reason their appointment will be fiercely resisted and the reason such resistance must be overcome. Those in the government who have been working on these issues may well have an inkling of how an unbiased eye might appraise their work.

Only then will the Congress and the American people have confidence in the constitutionality of the covert actions undertaken, and in their legality under international law.

Government of the people, by the people, and under the rule of law cannot abide secret legal justifications for covert activities, whose very occurrence is itself wrapped in secret.

See Josh Gerstein, “Judge orders Obama foreign aid order released, Politico, December 17, 2013 (6:16 p.m. EST).

See also, on the question of whether in a democracy the government can rule by secret laws, upheld by secret courts, and never exposed to the light of day,

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

Secret laws, secret legal analyses, secret legal memoranda, and secret judicial decisions, it should be recognized, represent key building blocks for a totalitarian state.

See “The Disposition Matrix”: Is Obama laying the foundations of a future totalitarian state?” The Trenchant Observer, July 18, 2013, (Updated July 27, 2013).

In this article, the Observer explains,

The disposition matrix is just one piece of architecture which when used by others in the future could form part of a totalitarian state.

Other elements would be total surveillance of individuals in society who might pose a challenge, any challenge, to those who control the machinery of the state. Another would be the ability of the government to influence and move public opinion by using personal data to sway voters in electoral campaigns, as the Democrats and Obama did so successfully in the 2012 elections.

Another element would be the use of secret laws and secret legal justifications, and the state secrets privilege, to avoid public debate and public challenges in the courts to governmental actions violating basic constitutional rights (e.g., free speech, due process, Fourth Amendment protection against unreasonable searches and seizures, etc.).

A final element would be control of the flow of information, an enterprise in which Google has been obtaining vast experience, dealing with authoritarian regimes throughout the world.

No nominee to be General Counsel of the CIA or any nominees for to be a top legal official at another agency should be confirmed if he or she is unwilling to commit to sharing with the Senate and House Intelligence Committees the legal basis, expressed in written analyses and memorands, for covert activities and operations authorized and carried out by the President of the United States.

The essential and core elements of a democratic state governed by the rule of law are at stake.

There can never exist such a thing as the secret “rule of law”.

The very concept is an oxymoron. The reality of efforts to use secrecy to avoid accountability before the law (as interpreted not only by the Executive but also by the Congress and by the Supreme Court) represents a mortal threat to any democracy, including the American Democracy.

The Trenchant Observer

More news and opinion on President Obama as “Executioner in Chief”

Sunday, June 3rd, 2012

From: A Man for All Seasons (1966)

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
–Attributed to Sir Thomas More, in the film A Man for All Seasons (1966)

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[Developing--please check back for updates. Update June 4, 2012.]

Opinion

Paul Harris, “Drone wars and state secrecy – how Barack Obama became a hardliner; He was once a liberal law professor who campaigned against the Iraq war. Now, according to revelations last week, the US president personally oversees a ‘kill list’ for drone strikes in Yemen and Pakistan. Then there’s the CIA renditions, increased surveillance and a crackdown on whistleblowers. No wonder Washington insiders are likening him to ‘George W Bush on steroids’,” The Guardian, June 2, 2012 (15.56 EDT).

Medea Benjamin, “Obama and Drone Warfare: Will Americans Speak Out?” CODEPINK, May 30, 2012.

Daphne Eviatar, “Obama’s drone policy misreading international law,” Politico, May 3, 2012 (opinion).

Doyle McManus, “Coming clean on drones,” The Los Angeles Times, May 6, 2012 (op-ed).

Earlier Trenchant Observer Articles on Targeted Killings

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

The Trenchant Observer

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

The risk of uttering a scintilla of truth: Gen. Allen fires Maj. Gen. Fuller in Afghanistan

Saturday, November 5th, 2011

The top American commander in Afghanistan fired one of his senior officers Friday for comments made about Afghan President Hamid Karzai.

At a conference in the U.S., Maj. Gen. Peter Fuller, faced with a question about Karzai’s recent statement that Afghanistan would side with Pakistan in a war with the United States, responded to Politico as follows,

“Why don’t you just poke me in the eye with a needle! You’ve got to be kidding me . . . I’m sorry, we just gave you $11.6 billion and now you’re telling me, ‘I don’t really care’?” Fuller also referred to Karzai as “erratic”.
–See “U.S. general is fired for Karzai comments.” Washington Post, Nov. 4, 2011

For the Politico interview, see Tim Mak, “U.S. general: Afghan leaders ‘isolated from reality’”, Politico, November 3, 2011.

Under current Marine discipline in Afghanistan, the slightest statement reflecting a kernel of truth now appears to be a firing offense. One can imagine the answer Gen. Allen might have given to the question. The following statement regarding Maj. Gen. Fuller’s dismissal offers a clue:

“These unfortunate comments are neither indicative of our current solid relationship with the government of Afghanistan, its leadership, or our joint commitment to prevail here in Afghanistan,” said Marine Gen. John R. Allen, who oversees U.S. and NATO forces in the country. “The Afghan people are an honorable people, and comments such as these will not keep us from accomplishing our most critical and shared mission — bringing about a stable, peaceful and prosperous Afghanistan,” he added.

–Joshua Partlow and Greg Jaffe, “U.S. general fired for criticizing Hamid Karzai,” Washington Post, November 5, 2011

The idea is simple: stricter thought control among the U.S. officer corps, and lockstep unity pushing the party line when speaking to the press.

At last the United States seems to have hit on a decisive strategy for defeating the Taliban!

The Trenchant Observer

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Comments are invited.