Posts Tagged ‘rule of law’

Putin’s “State of the Union” speech on December 4, 2014 (with link to text)

Friday, December 5th, 2014

To understand Russia, it is important to observe closely the public face the President puts on the actions and policies of the Russian government. Of course, it is equally important to pay careful attention to what the President and his subordinates actually do on the ground, in reality. The latest presentation of the public face took place on Thursday.

President Vladimir Putin delivered an important speech on November 4, 2014, in which he set out his views on the challenges facing Russia. One topic was the Ukraine.

See

Presidential Address to the Federal Assembly, December 4, 2014. The English txt of the speech is found here.

Excerpts follow:

Of course, we will talk about this year’s landmark events. You know that a referendum was held in Crimea in March, at which its residents clearly expressed their desire to join Russia. After that, the Crimean parliament – it should be stressed that it was a legitimate parliament that was elected back in 2010 – adopted a resolution on sovereignty. And then we saw the historical reunification of Crimea and Sevastopol with Russia.

It was an event of special significance for the country and the people, because Crimea is where our people live, and the peninsula is of strategic importance for Russia as the spiritual source of the development of a multifaceted but solid Russian nation and a centralised Russian state. It was in Crimea, in the ancient city of Chersonesus or Korsun, as ancient Russian chroniclers called it, that Grand Prince Vladimir was baptised before bringing Christianity to Rus.

In addition to ethnic similarity, a common language, common elements of their material culture, a common territory, even though its borders were not marked then, and a nascent common economy and government, Christianity was a powerful spiritual unifying force that helped involve various tribes and tribal unions of the vast Eastern Slavic world in the creation of a Russian nation and Russian state. It was thanks to this spiritual unity that our forefathers for the first time and forevermore saw themselves as a united nation. All of this allows us to say that Crimea, the ancient Korsun or Chersonesus, and Sevastopol have invaluable civilisational and even sacral importance for Russia, like the Temple Mount in Jerusalem for the followers of Islam and Judaism.

And this is how we will always consider it.

We cannot fail to mention today our perspective on the developments in Ukraine and how we intend to work with our partners around the world.

It is well known that Russia not only supported Ukraine and other brotherly republics of the former Soviet Union in their aspirations to sovereignty, but also facilitated this process greatly in the 1990s. Since then, our position has remained unchanged.

Every nation has an inalienable sovereign right to determine its own development path, choose allies and political regimes, create an economy and ensure its security. Russia has always respected these rights and always will. This fully applies to Ukraine and the Ukrainian people.

If for some European countries national pride is a long-forgotten concept and sovereignty is too much of a luxury, true sovereignty for Russia is absolutely necessary for survival.

Primarily, we should realise this as a nation. I would like to emphasise this: either we remain a sovereign nation, or we dissolve without a trace and lose our identity. Of course, other countries need to understand this, too. All participants in international life should be aware of this. And they should use this understanding to strengthen the role and the importance of international law, which we’ve talked about so much lately, rather than bend its standards to suit someone’s strategic interests contrary to its fundamental principles and common sense, considering everyone else to be poorly educated people who can’t read or write.

It is imperative to respect the legitimate interests of all the participants in international dialogue. Only then, not with guns, missiles or combat aircraft, but precisely with the rule of law will we reliably protect the world against bloody conflict. Only then, will there be no need to scare anyone with imaginary self-deceptive isolation, or sanctions, which are, of course, damaging, but damaging to everyone, including those who initiate them.

Speaking of the sanctions, they are not just a knee-jerk reaction on behalf of the United States or its allies to our position regarding the events and the coup in Ukraine, or even the so-called Crimean Spring. I’m sure that if these events had never happened – I want to point this out specifically for you as politicians sitting in this auditorium – if none of that had ever happened, they would have come up with some other excuse to try to contain Russia’s growing capabilities, affect our country in some way, or even take advantage of it.

The policy of containment was not invented yesterday. It has been carried out against our country for many years, always, for decades, if not centuries. In short, whenever someone thinks that Russia has become too strong or independent, these tools are quickly put into use.

However, talking to Russia from a position of force is an exercise in futility, even when it was faced with domestic hardships, as in the 1990s and early 2000s.

Next year, we will mark the 70th anniversary of Victory in the Great Patriotic War. Our Army crushed the enemy and liberated Europe. However, we should not forget about the bitter defeats in 1941 and 1942 so as not to repeat the mistakes in the future.

In this context, I will touch on an international security issue. There are many issues related to this. These include the fight against terrorism. We still encounter its manifestations, and of course, we will participate in the joint efforts to counter terrorism on the international level. Of course, we will work together to deal with other challenges, such as the spread of infectious diseases.

However, in this case I would like to speak about the most serious and sensitive issue: international security. Since 2002, after the US unilaterally pulled out of the ABM Treaty, which was absolutely a cornerstone of international security, a strategic balance of forces and stability, the US has been working relentlessly to create a global missile defence system, including in Europe. This poses a threat not only to Russia,but to the world as a whole – precisely due to the possible disruption of this strategic balance of forces.

I believe that this is bad for the US as well, because it creates the dangerous illusion of invulnerability. It strengthens the striving for unilateral, often, as we can see, ill-considered decisions and additional risks.

The period ahead will be complex and difficult, when much will depend on what each one of us do at our workplaces. The so-called sanctions and foreign restrictions are an incentive for a more efficient and faster movement towards our goals.

There is much we need to do. We need to create new technologies, a competitive environment and an additional margin of strength in the industries, the financial system and in the training of personnel. We have a large domestic market and natural resources, capital and research projects for this. We also have talented, intelligent and diligent people who can learn very quickly.

The most important thing now is to give the people an opportunity for self-fulfilment. Freedom for development in the economic and social spheres, for public initiatives is the best possible response both to any external restrictions and to our domestic problems. The more actively people become involved in organising their own lives, the more independent they are, both economically and politically, and the greater Russia’s potential.

In this context, I will cite one quote: “He who loves Russia should wish freedom for it; above all, freedom for Russia as such, for its international independence and self-sufficiency; freedom for Russia as a unity of Russian and all other ethnic cultures; and finally, freedom for the Russian people, freedom for all of us: freedom of faith, of the search for truth, creativity, work, and property.” Ivan Ilyin. This makes a lot of sense and offers a good guideline for all of us today.

Readers are invited to read these excerpts, and to contribute to the analysis in the Comments box below or be e-mail.

Further analysis will follow.

The Trenchant Observer
observer@trenchantobserver.com

Outlook for 2014 and beyond: Technology and the creation of increasingly powerful instruments of totalitarian control

Saturday, January 4th, 2014

“Power tends to corrupt, and absolute power corrupts absolutely.”
–Lord Acton (1834-1902)

“All that is necessary for the triumph of evil is for good men to do nothing.”
–Edmund Burke

The onward push of technology in general, and information technology in particular, brings George Orwell’s vision of Nineteen Eighty-Four (1949) and Aldous Huxley’s vision in Brave New World (1932) more clearly, more palpably into view.

For a more contemporary example, see the German film, Das Leben der Anderen (“The Lives of Others”), which received an Oscar nomination for Best Foreign Film in 2006. The movie is available in English, French, and Spanish, as well as the original German.

Technology’s relentless push places new capabilities in government officials’ hands, as new tendencies toward the creation of totalitarian instruments of oppression appear to sweep past all legal, historical and cultural restraints.

The new mantra of governments in democractic countries where minimal oversight and control of government actions still exists to some degree is that, “We do it because we can do it.”

Justifications are not lacking, for zealous officials in their efforts to control terrorist and other threats.

“What if,” they ask, “a nuclear bomb were exploded by terrorists in a major city?” Citing such examples, they conclude that everything is justified, and nothing is excluded.

The requirements of necessity and proportionality that existed in the past are increasingly lost. Thus, to protect society against terrorists, military and intelligence agencies move relentlessly toward doing everything they can to forestall both perceived and inchoate threats.

The relationship between ends and means–of central importance in both domestic and international law–is lost among officials which have succeeded in forging a secret dominion of secret action, where they are not in any meaningful sense held to account. Over time, they secure the acquiescence if not the enthusiastic support of elected government officials, and even of some judges. They develop doctrines such as the “state secrets privilege” which governments invoke to avoid judicial review of the  legality and constitutionality of their actions and programs.

At the same time, the number of individuals employed by the government and its contractors to protect the population and the state grows astronomically. Powerful commercial interests become fused with the technologoical imperatives and the drive to create ever greater capabilities–and to use them.

The national security officials pushing these programs frequently come from intelligence backgrounds where they are not accustomed to conducting their activities in a manner in which they are held to account before the constitution and the law.

Consequently, as we enter 2014 we are being pushed headlong into a future where the state holds in its hands incredibly powerful instruments of totalitarian control. The government, citing the need for secrecy and the classified nature of the information required for legal challenges, does everything it can to avoid effective judicial and constitutional review of its actions. Legal memoranda justifying secret programs are themselves held secret on the theory that their publication would undermine free and vigorous debate among government officials.

The paradoxical result is that while government lawyers are arguably freed up to produce legal justifications that will never see the light of day, citizens and their representative are denied their right to assess whether the government is acting within the law and the Constitution.

In the end, because in a democracy secret legal justifications lack validity and can have no legitimizing force, the government in effect simply fails to offer any legal justifications for its secret operations. The rule of law is broken, as the government operates outside the framework of legal and constitutional accountability which is the bedrock of a democratic state governed by law.

These are matters which are abundantly clear to first-year law students, but not apparently to ranking lawyers within the Executive Branch in Washington.

A government which proceeds in this manner has gone outside the framework of constitutional government under law. Secret laws, secret legal analyses, secret programs and secret activities whose legality cannot be assessed, are deadly assaults on the rule of law.

Yet they continue. They continue with the full backing of President Barack Obama, as revealed through his actions. Here, as elsewhere, we need to watch what the president does, and not what he says.

We assure ourselves that our elected representatives will safeguard our freedoms even in this new world where everything is known by government officials, and large private organizations such as Google and Facebook.

Yet when someone like the Director of the CIA, David Petraeus, is suddenly forced to resign over an affair after his e-mails somehow become known to intellgence officials shortly after the FBI tells him that their investigation has ended and that he will not be the subject of further inquiry, no one insists on knowing what legal authority the FBI used to secure these e-mails.  No one demands to know why FBI Deputy Director Sean Joyce called David Clapper, the head of the NSA, on November 6, 2012 (as election results flowed in), and told Clapper about the affair, or why Clapper immediately called Petraeus and strongly urged him to resign.  Were the e-mails obtained through abuse of an FBI or NSA program? No one dares to focus on this question, or to investigate it tenaciously to the bitter end.  No one is held accountable.

Edward Snowden’s revelations in The Guardian and other leading newspapers throughout the world have opened a window through which we can now see how absolutely without limits U.S. intelligence agencies have conducted surveillance and made copies of the communications of everyone in the world, including those in the United States.

We know these capabilities have been and are used to identify individuals who become the objects of targeted killings by drone strikes, without judicial process, even when as in the Anwar al-Aulaqi case the target is a U.S. citizen.

We trust that these capabilities will never be “misused” by our government officials, while casting a blind eye to how similar capabilities are currently being used by dictatorships to root out and if necessary to destroy their opponents.

We want to think, “It couldn’t happen here.”

But in a sense it is already happening here. These activities–which seem to clearly violate the Fourth Amendment’s prohibition of unreasonable searches and seizures, if the words in the text and two centuries of constitutional interpretation have any meaning–have already had a chilling effect on free speech in the United States, and elsewhere. The precise text of the Constitution is worth recalling:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Writers and journalists already weigh their words carefully, and the topics on which they choose to write. Self-censorship makes insidious inroads into habits of free thought. Many are in denial, and are loathe to admit that they themselves censor what they write.

But engage a writer in a deeper conversation, off-the-record.  Cross-examine a writer as to whether the current climate–resulting from the government’s surveillance operations, its extremely aggressive prosecution of any who have made classified information public, and even reporters to whom such information has been leaked– has affected any of their decisions regarding what to investigate, what sources to use, and how tenaciously to pursue their investigation, and you may be surprised to learn the degree to which writers and journalists are already pulling their punches.

What can be done?

Our answers to this question will be duly recorded by government surveillance programs and operatives. Of that we can be sure. Does that fact in and of itself affect our answers? If it does, extra courage may be required if we are to come up with effective plans of action to defend our liberties.

Still, is there any amount of collective courage that might be summoned, in a country which has nurtured and protected the freedoms guaranteed by the Constitution for over 200 years, to reverse this onslaught of technological and commercial imperatives, growing government secrecy, and the creation of increasingly powerful instruments of totalitarian control?

If we don’t speak out and take corrective measures now, when will we? Can we imagine that it will become easier in the future? In the words of the Talmud, “If not now, when?”

Does anyone remember J. Edgar Hoover, and the abuses he committed with far fewer tools at his command?

How long can we assume that those who hold (or in the future may hold) these extraordinary and growing powers and the power of the state itself in their hands, will always act benevolently and to uphold the rule of law?

The Trenchant Observer

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.

See

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

Political Earthquake in Egypt: Military Takeover Imminent

Monday, July 1st, 2013

Egypt army statement in full

Following demonstrations larger than those at the peak of the 2011 revolution against Hosni Mubarak, estimated by the Interior Ministry to involve some 14-17 million people according to Al Jazeera, the Egyptian Army issued the following statement on Monday, July 1, 2013 (text in full):

Egypt and the whole world witnessed yesterday demonstrations by the great people of Egypt expressing their opinion in an unprecedented, peaceful and civilised way.

Everyone saw the movement of the Egyptian people and heard their voices with the greatest respect and concern. It is necessary that the people receive a reply to their movement and the call from every party with any responsibility in the dangerous circumstances surrounding the nation.

As a main party in the considerations of the future and based on their patriotic and historic responsibilities to protect security and stability, the armed forces state the following:

• The armed forces will not be a party in the circles of politics or governance and are not willing to step out of the role defined for them by the basic ideals of democracy based on the will of the people.

• The national security of the state is exposed to extreme danger by the developments the nation is witnessing, and this places a responsibility on us, each according to his position, to act as is proper to avert these dangers. The armed forces sensed early on the dangers of the current situation and the demands the great people have at this time. Therefore, it previously set a deadline of a week for all political forces in the country to come to a consensus and get out of this crisis. However, the week has passed without any sign of an initiative. This is what led to the people coming out with determination and resolve, in their full freedom, in this glorious way, which inspired surprise, respect and attention at the domestic, regional and international levels.

• Wasting more time will only bring more division and conflict, which we have warned about and continue to warn about. The noble people have suffered and have found no one to treat them with kindness or sympathize with them. That puts a moral and psychological burden on the armed forces, which find it obligatory that everyone drop everything and embrace these proud people, which have shown they are ready to do the impossible if only they feels there is loyalty and dedication to them.

• The armed forces repeat their call for the people’s demands to be met and give everyone 48 hours as a last chance to shoulder the burden of the historic moment that is happening in the nation, which will not forgive or tolerate any party that is lax in shouldering its responsibility.

• The armed forces put everyone on notice that if the demands of the people are not realised in the given time period, it will be obliged by its patriotic and historic responsibilities and by its respect for the demands of the great Egyptian people to announce a road map for the future and the steps for overseeing its implementation, with participation of all patriotic and sincere parties and movements – including the youth, who set off the glorious revolution and continue to do so – without excluding anyone.

• A salute of appreciation and pride to the sincere and loyal men of the Armed Forces, who have always borne and will continue to bear their patriotic responsibilities toward the great people of Egypt with determination, decisiveness and pride. God save Egypt and its proud, great people.

–“Egypt army statement in full; Military says it will not stand idle as “the national security of the state is in severe danger; The Egyptian army on Monday gave politicians 48 hours to resolve the country’s political crisis or face intervention by the military,” Al Jazeera, July 1, 2013 (last updated 19:14)

The demonstrations and the Statement by the Egyptian army represent a political earthquake signaling an imminent military takeover of control of the government, whose impact will reverberate throughout many countries in the Middle East for years to come.

The Obama administration has provided shameful support to Mohamed Morsi and the Muslim Brotherhood as Morsi launched a coup against the Constitutional order on November 22, 2012, assuming all power, then using dictatorial powers to block action by the Constitutional Court which would have held the election of the Upper House of the National Assembly unconstitutional.  He did so through the use of Hitler-style “Brownshirt” tactics to block access to the court by its members, who also reported receiving numerous death threats.

Morsi then pushed through a draft constitution which was illegitimate because the body that drafted it was elected unconstitutionally, calling a forced national referendum on what was—hidden in its provisions–an extreme Islamist constitution, on December 15 and 22, under circumstances where opponents had no time or effective opportunity to analyze its provisions or to organize campaigns against its approval in the referendum.

Latest New Reports

For news reports on these late-breaking events, see

Ulrike Putz (Kairo), “Machtkampf in Ägypten: Militärputsch mit Ankündigung;Ägyptens Militär setzt der Politik ein 48-Stunden-Ultimatum – und hat Präsident Mursi damit wohl praktisch des Amtes enthoben. Nun muss die Opposition nur noch zwei Tage lang einen Kompromiss verzögern, schon müssen die Generäle einschreiten. Fraglich ist nur, wie die Islamisten auf einen Putsch reagieren würden,” Der Spiegel, 1 Juli 2013 (20:11 Uhr).

Bel Trew, “Millions of Egyptians turn out nationwide for anti-Morsi rallies; 7 dead in violence,” Al-Ahram (alahramonline) (Cairo), July 1, 2013.

Egyptian Newspapers

For the latest news from Egyptian newspapers in English, see (in addition to Al-Ahram, above), the following:

Al-Ahram Weekly

Egypt Independent

Egypt Daily News

Aswat Masriya

CoptsUnited: A Newspaper for All Egyptians

Egypt Online (Egyptian State Information Service. The site contains the official text of the army statement of July 1, 2013.

Daily News Egypt

Obama and the Struggle for the Rule of Law in Egypt

As noted above, by supporting the Muslim Brotherhood at the critical moment when Morsi was carrying out a coup d’état on November 22, 2012, Obama and the United States–through excessive caution in revolutionary times–got on the wrong side of history.

It is now time for the president to get out from under the wheel of history, and to get out in front of the struggle for democracy, by voicing his strong support for constitutional government and the rule of law in Egypt, and all those who support these goals. 

This means, at a minimum, abrogation of all of the elections and legal changes, including Morsi’s imposed constitution, that followed his dictatorial decree of November 22, 2012, and erasing their effects. 

What is required as a minimum, in short, is the restoration of the status quo ante before Morsi’s coup on November 22, 2012.

If Morsi and the Muslim Brotherhood are unable to lead the nation to this result, as is likely, it appears that the Egyptian people will insist that Morsi himself leave the scene, and that the Muslim Brotherhood withdraw from all government positions they may currently hold.

The Trenchant Observer

Where are the State Department’s annual Country Reports on Human Rights?

Wednesday, April 17th, 2013

U.S. law requires that the annual State Department Country Reports on Human Rights be published by February 25 of each year.

The seriousness with which the State Department views human rights is reflected by its compliance with this statutory deadline.

The reports are not supposed to be massaged in order to further the foreign policy interests of the United States. The delay in the date of their publication, which has become egregious under President Barack Obama and Secretary of State Hilary Clinton, fosters perceptions that that is exactly what the foreign policy leaders of the United States are doing.

The fact that the reports are to be delivered to the Congress does not diminish the force of the law, even when Congress does not complain about the delay. The law is not for the benefit of interested Congressmen, but rather for the benefit of the people of the United States.

In the case of the new Secretary of State, John Kerry, the delay is an indication of the importance he gives to compliance with U.S. law, as well as the subject of human rights. Put differently, the delay suggests the extent to which the U.S. stands–in deeds and not just in words–for the rule of law.

To what extent do U.S. officials seek to comply with U.S. law?

Finally, a state characterized by the rule of law is one in which the government takes the requirements of law seriously. Given the history of extended delays in the publication of the country reports on human rights, in this regard at least the United States does not appear to meet this standard.

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

“L’État, c’est moi”—Mohamed Morsi and Muslim Brotherhood launch coup d’état in Egypt

Tuesday, November 27th, 2012

“L’Etat, c’est moi.”
“I am the state.”
–quote attributed to King Louis IV

Egypt’s Muslim Brotherhood has executed a legal coup d’état through a decree by President Mohamed Morsi arrogating all legal power to himself, thereby abrogating the rule of law in Egypt.

The text of Morsi’s Constitutional Decree (informal translation)

The following text and English translation of Egyptian President Mohamed Morsi’s constitutional declaration is from Ahram Online.

In a surprise move Thursday, President Mohamed Morsi issued a new Constitutional Declaration.

The declaration began by stating that the January 25 Revolution had mandated the president with the responsibility to achieve revolutionary demands and to root out remnants of the old regime from Egypt’s state institutions. It also called for the building of a “new legitimacy built on a constitution” to promote “principles of freedom, justice and democracy.”

Ahram Online provides a translated version of Thursday’s Constitutional Declaration.

We have decided the following:

Article I

Reopen the investigations and prosecutions in the cases of the murder, the attempted murder and the wounding of protesters as well as the crimes of terror committed against the revolutionaries by anyone who held a political or executive position under the former regime, according to the Law of the Protection of the Revolution and other laws.

Article II:

Previous constitutional declarations, laws, and decrees made by the president since he took office on 30 June 2012, until the constitution is approved and a new People’s Assembly [lower house of parliament] is elected, are final and binding and cannot be appealed by any way or to any entity. Nor shall they be suspended or canceled and all lawsuits related to them and brought before any judicial body against these decisions are annulled.

Article III:

The prosecutor-general is to be appointed from among the members of the judiciary by the President of the Republic for a period of four years commencing from the date of office and is subject to the general conditions of being appointed as a judge and should not be under the age of 40. This provision applies to the one currently holding the position with immediate effect.

Article IV:

The text of the article on the formation of the Constituent Assembly in the 30 March 2011 Constitutional Declaration that reads, “it shall prepare a draft of a new constitution in a period of six months from the date it was formed” is to be amended to “it shall prepare the draft of a new constitution for the country no later than eight months from the date of its formation.”

Article V:

No judicial body can dissolve the Shura Council [upper house of parliament] or the Constituent Assembly.

Article VI:

The President may take the necessary actions and measures to protect the country and the goals of the revolution.

Article VII:

This Constitutional Declaration is valid from the date of its publication in the official gazette.

–Muftah Editors, “English Text of Egyptian President Morsi’s Thanksgiving Day Constitutional Decree,” November 22, 2012.

–See “English text of Morsi’s Constitutional Declaration; Ahram Online provides English version of President Morsi’s Constitutional Declaration appointing new prosecutor-general; immunising Constituent Assembly and Shura Council from dissolution, ahramonline, November 22, 2012.

The True Intentions of the Muslim Brotherhood

The Muslim Brotherhood promised it would not present a candidate in the presidential elections. It did not honor its pledge.

The Muslim Brotherhood took down the leadership of the military, substituting its own.

The Muslim Brotherhood withdrew police protection from the American Embassy in Cairo on September 11, 2012, allowing demonstrators to enter the grounds, in violation of the U.N. Vienna Convention on Diplomatic Relations (1961).

It would appear that the Muslim Brotherhood now seeks to launch its version of “Islamic democracy” by retrying individuals charged with crimes and acquitted, and by retroactively trying individuals for new crimes, in violation of fundamental human rights as embodied in the Universival Declaration on Human Rights and the U.N. International Covenant on Civil and Political Rights, to which Egypt is a party.  It has also stacked the commission charged with drafting a new constitution with Islamists, and threatens to reinstate a lower house of parliament which has been dissolved by the courts because of the Brotherhood’s violations of the electoral law.

U.N. Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights provides, in pertinent part, the following:

Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law….

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(5) Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Article 15
1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed….

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

International Covenant on Civil and Political Rights (1967, in force 1976)

A Misstep, or the End of All Illusions?

There is strong evidence to suggest that the Muslim Bortherhood’s strategic goals in Egypt include establishing an Islamic dictatorship where opposing parties and power centers have been eliminated or neutralized, so that nothing stands in the way of the Brotherhood’s will. France’s King Louis XIV claimed to rule by divine right. The Muslim Brotherhood is acting as if it has such a divine right to rule Egypt.

It is possible, however, that the overreaching represented by Morsi’s decree was a clumsy and ill-considered mistake. If that is the case, the decree should be withdrawn forthwith.

If it is not withdrawn, foreign countries and foreign investors should be placed on notice that the rule of law is dead in Egypt. In such a country, the foreign investment needed to lift the population from crushing poverty is not likely to appear.

World Bank Standby Loan of $4.8 Billion

The World Bank is in the process of approving a $4.8 billion standby loan facility for Egypt.

CAIRO — Egypt reached a preliminary agreement with an International Monetary Fund team for a loan of as much as $4.8 billion that officials say is necessary to support the ailing economy and attract more funding.

The “22-month standby arrangement” for the loan, which will carry an interest rate of about 1.06 percent, will be distributed in eight quarterly amounts if it is approved by the IMF’s board, Andreas Bauer, who headed the fund’s technical team to the country, told reporters Tuesday.

Planning Minister Ashraf el-Arabi said the board will review the agreement next month.

–“World Briefs: Egypt, IMF sign loan pact,” Pittsburgh Post-Gazette, November 21, 2012.

The United States has been craven in its failure to condemn Morsi’s “constitutional decree”. Once U.S. leaders get back to the helm of the U.S. ship of state, which is currently running on auto-pilot, they should make it clear to Morsi and the Muslim Brotherhood that the financial suppport of the IMF, financed by their own taxpayers, was premised on the existence of a democratic state in Egypt.

If that assumption no longer holds, and it does not so long as Morsi does not rescind his decree, the United States and other members of the I.M.F. should not approve the $4.8 billion standby loan arrangement for Egypt.

The Trenchant Observer

Afghanistan Donors Conference in London, Need to Address Past Failures

Wednesday, January 27th, 2010

In an interesting commentary on the eve of the Afghanistan Donors Conference in London (Seventh International Conference on Afghanistan), the former head of Canada’s aid program in Afghanistan underlines the need to identify the causes of past failures in providing foreign assistance there, in order to avoid repeating the same mistakes. See Nipa Banerjee, “Past Failures Must be Addressed in London”, Ottowa Citizen, January 27, 2010

NEWS TO NOTE: In Iran, Khamenei calls for non-interference by militias and for officials “to fully respect the law”

Thursday, January 14th, 2010

Borzou Daragahi of the Los Angeles Times reports that two days following the firing of shots at the car of former Iranian presidential candidate Mehdi Karroubi,

…Iran’s supreme leader Saturday told shadowy pro-government militias not to interfere in the nation’s postelection unrest even as the head of the notorious Basiji militia warned that his forces would “jump into the fray” if authorities didn’t act strongly against the opposition movement.

In his first public comments since protests last month that coincided with a major religious holiday, Ayatollah Ali Khamenei made a rare attempt to ease tensions. Two days after gunmen with suspected ties to Iran’s Revolutionary Guard allegedly opened fire on the car of opposition figure Mehdi Karroubi Khamenei urged all to abide by the law.

“Relevant bodies should fully respect the law in dealing with the riots and the ongoing events,” he told clerics and seminary students bused to Tehran from the shrine city of Qom for an annual political commemoration.

“Those without any legal duty and obligations should not meddle with these affairs,” he said. “Everyone should hold back from arbitrary acts and everything should go within the framework of the law.”

Borzou Daragahi, “Iran’s Supreme Leader Tells Militias not to Meddle,” Los Angeles Times, January 10, 2010

Khamenei’s remarks on January 9 were also quoted extensively by Iran’s English language television channel, Press TV, as follows:

…Ayatollah Khamenei warned that the enemy was drawing up an “intricate” plot for a “dangerous game.”

“In these unclear conditions, we must act with vigilance and open eyes. However, when the conditions require, we must also show firmness. This way we can stop the enemy in its tracks,” the Leader explained.

Ayatollah Khamenei then asked all responsible bodies of the Islamic Republic to precisely implement the articles of the law in a “full and firm” fashion.

The Leader said that “those who have no responsibility or legal duty” must not interfere in that process.

“Some innocent people, who hate these villains, may seriously be hurt. Therefore, everyone must refrain from taking any action on their own. Everything must be done according to the law.”

Press TV, January 9, 2010

Tehran’s leading English language newspaper described the remarks in similar terms. The Tehran Times, January 9, 2010