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)

On Brennan’s May 23, 2016 testimony regarding Russian intervention in elections, and FBI investigation into intervention and possible collusion with Trump associates, see

“Former CIA chief John Brennan testifies he warned Russians about intervent,” The Trenchant Observer, May 23, 2017. (click on date).

*****

Original article published on February 25, 2013

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

A remarkable photo of John Brennan at his Senate testimony on February 7, 2013, shows him wearing yellow and black plastic bands on his right wrist.

What are they, and what do they signify? Was he sending secret messages to certain people regarding his testimony? It is hard to know, but his appearance with those two hospital-like wrist-bands at his testimony was exceedingly strange.

Is he a member of the Knights of Malta, and was he signalling them something?

In the meantime, Senator John McCain has indicated that until he gets better answers about Benghazi and Brennan’s knowledge of CIA harsh interrogation techniques, he may place a “hold” on his nomination.

John McCain is distinguished in one particular respect, which gives him a unique perspective and great moral authority: he is the only U.S. Senator who has actually been tortured (in seven years of captivity in Vietnam).

See the photograph of Brennan (Alex Wong/Getty Images) and the story about McCain’s possible hold in:

Karen DeYoung, “McCain renews threat to hold up Brennan confirmation to CIA post,” Washington Post, February 24, 2013 (07:49 PM EST).

There was one notable attempt at humor during the February 7 confirmation hearing:

SENATOR BURR: Thank you, Chairman.

I’m going to try to be brief, because I’ve noticed you’re on
your fourth glass of water, and I don’t want to be accused
of waterboarding you.

(Laughter.)

How members of the Senate Select Committee on Intelligence can laugh at such an obscene joke surpasses understanding.

Torture is no laughing matter. Their laughter shows they are uncomfortable with torture. Their use of euphemisms such as “enhanced interrogation techniques” or “EITs” shields them from grappling, on an emotional and psychological level, with the terror they are referring to.

Worth noting in connection with international law and drone strikes are the following written question from the Chairman and answer by John Brennan:

[Committee Chairman] Could you describe the geographical limits on the Administration’s conduct drone strikes?

[John Brennan]As I noted in my speech at Harvard Law School in September 2011, and as the Attorney General stated publicly in March, we do not view our authority to use military force against al-Qa’ida and associated forces as being limited to “hot” battlefields like Afghanistan. Al-Qa’ida and its associates have in the recent past directed several attacks against us from countries other than Afghanistan. The Government has a responsibility to protect its citizens from these attacks, and, thus, as the Attorney General has noted, “neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.”

This does not mean, however, that we use military force whenever or wherever we want. International legal principles, such as respect for another nation’s sovereignty, constrain our ability to act unilaterally. Using force in another country is consistent with these international legal principles if conducted, for example, with the consent of the relevant nation – or if or when other governments are unwilling or unable to deal effectively with a threat to the United States. (emphasis added)

–U.S. Senate Select Committee on Intelligence, “Open Hearing: Nomination of John O. Brennan to be the Director of the Central Intelligence Agency,” February 7, 2013, Responses to Posthearing Questions.

The material on the Committee’s website now includes the following:

Opening Statement
Responses to Questionnaire for Completion by Presidential Nominees
Responses to Additional Prehearing Questions
Responses to Posthearing Questions
Transcript
Archived Video

How can independent international lawyers form judgments about the legality of specific drone attacks when their very occurrence is officially held as a secret, and the legal interpretations of international law governing the use of force the Obama administration advances to justify their legality are also held in secret, both in terms of general authorization and in terms of authorized use in the specific targeted killing under examination?

How can any credence be given to such assertions of legality under international law when the legal justifications are themselves held in secret, from the Congress, from the American public, and from independent international legal experts outside the government in foreign countries, in foreign governments, and indeed in international tribunals?

The effectiveness of international law depends on the obligation of states to offer legal justifications for their actions. When the right of self-defense under Article 51 of the U.N. Charter is invoked, there is a specific requirement that they report actions taken in self-defense to the Security Council.

Here, the U.S. government does not acknowledge it is the author of drone strikes. It does not offer public legal justifications for its targeted killing activities, either under domestic or international law. It does not report such actions to the U.N. Security Council as specifically required by Article 51 of the U.N. Charter.

The government claims the right to execute U.S. and other citizens on the basis of secret legal memoranda and in the total absence of any public legal justifications for specific targeted executions.

John Brennan is the author of that policy under President Obama, and has served as its principal coordinator and implementer for the last four years.

To the extent these targeted executions cannot be justified by international law, they constitute assassinations and probably war crimes.

In the absence of public justifications of such actions, they cannot be viewed as legitimate under international law, which by its very nature requires public justifications of public actions permitting reactions by leading international scholars, other countries, and international tribunals.

Any claim of legality under international law based on secret operations and secret legal memoranda is by definition illegitimate and lacking in any persuasive force whatsoever.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

Comments are closed.