<![CDATA[Permanent State of Emergency - Blog]]>Wed, 09 Aug 2017 01:27:56 -0700Weebly<![CDATA[Qatar Blockaded, ISIS Attacks Tehran: Minutes to Midnight?]]>Fri, 09 Jun 2017 19:26:56 GMThttp://permanent-state-of-emergency.com/blog/qatar-blockaded-isis-attacks-tehran-minutes-to-midnight
Two events of staggering importance occurred this week, neither of which received much attention in Western media. The first was the decision of the Kingdom of Saudi Arabia to commit acts of war against its erstwhile ally Qatar. The second event--which exists in a murky but all-important relation to the first--was ISIS' stunning attack on the Iranian Parliament. Both foreshadow a serious and problematic extension of President Trump's executive power, especially in the context of the ongoing 'Russiagate' inquiry and the testimony of former Director of the FBI James Comey.

The first development was a geopolitical earthquake. Saudi Arabia and Qatar were, until this week, the twin pillars of the Gulf Cooperation Council. As part of this alliance, they were both involved in an increasingly dirty war in Yemen, and also joint sponsors of the terrorist groups fighting the Syrian government (both countries provided ample logistical and financial support for ISIS and the former al-Qaeda in Syria, using both open and clandestine channels).

Qatar is the home of the United States Central Command (CENTCOM), at a base that houses the 10,000 troops that coordinate American military action across the entire Middle East. Despite this, and while Saudi Arabia remains the U.S. key regional ally, Saudi Arabia decided to subject Qatar to a blockade (an act of war in international law). It backfired: Turkey send troops to Qatar to deter a potential Saudi invasion, while Iran is prepared to break the embargo and send food by sea.

Trump claimed (in tweets, naturally) that this had all been his idea, the fruits of his trip to the region. This provides a clue to the Saudis' motivation, as do the Turkish and Iranian responses. Trump--in his most Orwellian display on record--stood up in Riyadh during that trip to decry Iranian-state sponsored terrorism. (The historical record shows that 19 of the 9/11 hijackers were Saudi; none were Iranian. Osama Bin Laden was also Saudi, whose family continues to prosper through their control of the Kingdom's largest construction conglomerate, the never-renamed Saudi Bin Laden Group).

The attack on Qatar is a reaction to its attempts to forge an independent foreign policy, one that is open to listening to states that are not controlled by Saudi Arabia and the United States, namely Iran and (increasingly) Turkey. This was unacceptable to Saudi Arabia, which is determined to double down on its strategy of rolling back Iranian influence in the region.

That strategy hinges on Syria. However, recently both ISIS and the former al-Qaeda in Syria have suffered serious setbacks at the hands of the Syrian government. The Syrian army and its allies are prepared to advance (through al-Tanf or otherwise) to relieve Deir ez-Zor; this would put a crimp in the Saudi/U.S. plan to create a Sunni statelet in Eastern Syria that would deprive Syria of most oil revenue and prevent the construction of the Iran-Iraq-Syria natural gas pipeline, which was a key Qatari concern. However, Qatar seemed prepared to give up on the Syrian proxy war, and Saudi Arabia chose to punish it.

Saudi Arabia's violence towards Iran is much more serious. In the deadliest terrorist attack in Iran since 2010, attackers armed with grenades and suicide vests came very close to invading the debate chamber while Parliament was in session, which likely would have led to the deaths of a large number of Iran's elected assembly, and possibly its Speaker Ali Larijani. Nine victims were killed, while another died in a coordinate assault on the Mausoleum of the Ayatollah Khomeini. ISIS claimed responsibility, and those captured confessed they had been trained by ISIS in Iraq and Syria. It is inconceivable that ISIS would stage such a high-profile attack without approval from its Saudi paymasters, although the Iranian government has been somewhat circumspect in not naming Saudi Arabia as a sponsor of this particular atrocity.

President Trump, however, chose to point the finger at Iran. In a stunning act of victim-blaming, he tweeted that ""states that sponsor terrorism risk falling victim to the evil they promote." This is the most recent iteration of his latest 'big lie' -- the absurd insinuation that Iran sponsors ISIS, a group that believes that Iranian Shi'ites are actually polytheist apostates that deserve death (a view they took from the version of Islam promoted by Saudi Arabia known as Wahhabism).

Trump is taking a page from President George W. Bush's playbook: by claiming that Saddam Hussein's Iraq was as sponsor of terrorism at every opportunity, Bush convinced a majority of Americans that Iraq was responsible for the 9/11 attacks. The innuendo he intended to convey was false, but when pressed Bush said his statement was literally true: Iraq was a sponsor of terrorism against America's enemy Iran, as it gave refuge to the People's Mojehedin of Iran --a terrorist group that assassinated Iran's Chief Justice, President and Prime Minister along with seventy-three other Iranian government officials in its 1981 bombing campaign.  This came a year after the American government was humiliated in a failed Delta Force raid against Iran.

The American forces that invaded Eastern Syria are not there to fight ISIS, or at least that is not the principle aim, as General Mattis and others have admitted. The American-led forces based in Jordan have bombed two Syrian Government-allied convoys headed towards al-Tanf because they are determined to prevent a link-up between the Iraqi Army and the Syrian Army (which as of today has seemingly failed, as Syrian forces outflanked the coalition and its proxy army northeast of al-Tanf). This is allegedly because it would allow Iran to supply weapons to Hezbollah, something it can already do easily by sea.

America's hidden aim is to balkanize Syria and to ultimately bring down the Assad government. This is now going to be a very tall order, as the Syrian Army is winning on the ground, and Iran and Turkey are winning diplomatic skirmishes with the United States, most particularly at the Astana peace talks. The only path open to the United States is through a serious escalation, likely in the form of all-out air strike against the Syrian Government, which given the Russian military presence in the country would risk setting off World War III, with international law firmly on the Russian side.

Trump, as his tweets about Qatar and Iran demonstrate, is precisely the person to take this gamble. This is made considerably more likely every day that the "Russiagate" allegations linger. The media campaign against Trump is also fueled by innuendo: Comey's testimony revealed that all of the evidence of Russian involvement in the presidential election came from a partisan source, the private security company CrowdStrike -- as the Democratic National Committee refused to allow the FBI to access their servers. Comey also revealed--when asked--that President Trump is not and has never been the target of any FBI investigation. As Trump ultimately threw Michael Flynn under the bus, the investigation will likely end with his prosecution, but the whispering campaign will not.

More than any other politician, Trump understands how the media works. He knows that the constant drumbeat of claims that he colluded with the Russians in hacking the election is devastating his presidency. The easiest way to show that he is not in bed with the Russians is to attack them, as he is being goaded to do by America's foreign policy establishment. Hillary Clinton consistently called for a no-fly zone over Syria (and regime change) even after the generals told her it would lead directly to war with Russia. As what the neoconservative foreign policy establishment wants is now aligning with Trump's interest in saving face, the nuclear clock is again moving towards midnight.
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<![CDATA[Press TV Asks Me About U.S. Foreign Policy in Syria]]>Mon, 24 Apr 2017 20:23:34 GMThttp://permanent-state-of-emergency.com/blog/press-tv-asks-me-about-us-foreign-policy-in-syria
In the wake of Canada's decision to shamelessly imitate American foreign policy on Syria sanctions, I will post here what I said on PressTV, which is apparently as true about Canada as it is of the United States:

"It's absolutely astounding the United States would support those ['rebel'] groups. If the American public knew that those groups fighting the Syrian government, and I refer in particular to Fateh al-Sham, were actually in fact a re-branded al-Qaeda in Syria, namely people who voluntarily associated themselves with the terrorist organization that blew up the World Trade Centre in 2001, they'd be appalled and American foreign policy would fall apart as a result. The American media refusing to draw the links between al-Qaeda and Fateh al-Sham or al-Nusra or whatever they rebrand themselves as is absolutely shameful."

So my segment on the news is my blog post for this week, I'm afraid. I had to complete a mountain of grading at my day job (law professor) this week.

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<![CDATA[No Room for Debate: The Illegality of Trump’s Attack on Syria]]>Thu, 13 Apr 2017 23:59:30 GMThttp://permanent-state-of-emergency.com/blog/no-room-for-debate-the-illegality-of-trumps-attack-on-syriaPicture
Shortly after the air strike against the Shayrat Air Base, the New York Times published an article asking “Was Trump’s Syria Strike Illegal?” As is the case with most American media outlets, the writers declined to answer the question, focusing on what they presented as the intractable complexity of the issue. 

But it’s not complicated. It only appears to be that way when American newspapers ask American experts, who are close to the American government. As soon as one steps outside that frame, the picture becomes considerably clearer. No foreign language skills are needed to read Anne Orford’s article in the London Review of Books, entitled “No Legal Justification”. If one speaks German, one can easily find many articles like Daniele Ganser’s “The Illegal War of President Trump.” [Author’s translation]. In just that one essay, there are numerous references to unreserved assertions of the war’s illegality.

By contrast, the American reporting muddies the waters to attempt to give poor analysis the appearance of depth. These authors point to irrelevancies, including motions from the United Nations Security Council that lack the all-important authorization of “all necessary means” to enforce them. (It was the failure to secure the 'second resolution' before the invasion of Iraq that destroyed any legitimacy of that action under international law, as repeatedly confirmed by multiple government commissions --most explicitly in the report of the Davids Commission, which was commissioned by the Parliament of the Netherlands).

Another frequently mentioned irrelevancy is the fact that the United States has done this before, as if escaping punishment for a crime is a precedent that it isn’t illegal at all. Special attention is normally devoted to Nato’s bombing of Serbia, since the United States managed to secure the formal support of its alliance (and then acting as if that alliance’s military decisions had legal force). Nevertheless, that bombing campaign is stressed because Nato is a more impressive partner in crime than the ragtag members of whatever “coalition of the willing” that the United States is able to patch together into each ad hoc military pact. (This tactic is much older than most people imagine –Lyndon Johnson pressured America’s client states into sending troops to Vietnam as part of the “many flags” program; countries such as the Philippines sent token contributions of military engineers in exchange for increased foreign aid.)

Lastly, the American media almost always invoke the failure of the United Nations to act as the United States would have it behave. Purportedly, the international “system” is broken because the Security Council refuses to authorize an American attack every time the Ambassador of the United States to the United Nations makes an allegation about chemical weapons, as if the world’s representatives have amnesia and cannot remember Colin Powell (a considerably more credible figure than Nikki Haley) holding up a vial of anthrax in 2003, shortly before launching an illegal war than cost hundreds of thousands of lives --and which produced precisely zero evidence that Iraq possessed any weapons of mass destruction.

Articles discussing UN authorization for military force frequently invoke a doctrine known as “responsibility to protect”, or “R2P”. What most commentators fail to mention is that R2P is purportedly a doctrine that allows the Security Council to authorize the use of force. There is no support for the assertion that it allows individual states to avoid the UN Charter, which authorizes military action in only two situations. First, when authorized by a unanimous vote of the Security Council, and second, in self-defence (but not “pre-emptive” self defence, as when Bush sought to “get them before they get us”). Nowhere in R2P is there a basis for unilateral intervention because “something must be done”, because there is a long history of this principle being abused to justify aggression.

Before the Second World War, aggression was frequently justified by reference to fictional abuses of minority populations. Germany claimed that Czechs were slaughtering Sudentenland Germans before annexing parts of Czechoslovakia in 1938, while fifteen years earlier Italy had used similar excuses to occupy Corfu. Allegations that Germany and Italy had fabricated atrocities against minority ethic groups abounded. Today, the United States demands that “something needs to be done” about the result of bitter fighting between the Syrian Government and (the rebranded) al-Qaeda in Syria, without recognizing the possibility that the easiest way to halt the violence would be to stop supplying weapons to terrorists groups. (If the Romans created a desert and called it peace, Americans have perfected its modern prologue: create a civil war and declare a failed state.)

Why do the American experts ignore this? Largely because their path to success in the field of international law (in America) runs through the executive branch. Harold Koh followed a cursus honorum similar to the war criminals now taking seats on the federal bench in the Trump Administration: he worked in Reagan’s Office of Legal Counsel, then joined the faculty of Yale Law School, then took up a position as the Legal Advisor to the State Department at the outset of the Obama Administration. He then defended targeted killing as legal under international law, despite the consistent criticism of a string of United Nations Special Rapporteurs on Extrajudicial, Summary, or Arbitrary Executions. 

Koh has been “supportive of the Trump administration’s penchant for unilateral military action . . [he] said that the airstrikes were ‘not illegal’, and that an ‘important moment of lawmaking’ is ‘now upon us’”, arguing that the Syria attacks, much like the bombing of Serbia, could change international law. This is best characterized as engaging in “lawfare”, the justification of war crimes by weaponizing a twisted misrepresentation of international law. Koh was the keynote speaker at the conference of the American Society for International Law’s discussion of “Missile Strikes on Syria”, where he received the fawning admiration of his peers.

When the media and these ‘experts’ present the legality of American aggression as complex, one should understand that this serves a similar function to the statements of climate change deniers (and, previously, tobacco company shills), who argue there “is no consensus” because they themselves dispute the obvious. Their goal is to convince people that there is a legitimate debate merely to confuse, distract, and disengage the public. 

It is essential that the deniers fail: the public needs to be warned, not distracted --because when aggressive war is tolerated, every possible war crime follows.  One of the Chief Prosecutors of the Nuremberg Tribunal noted fifty years later that the United States was guilty of waging aggressive war for invading Iraq. Quoting that Tribunal, he noted that “essentially an evil thing...to initiate a war of aggression...is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” In other words, aggressive war is unacceptable because it leads inevitably to genocide, the killing of children and the destruction of societies. There is no debate; it is unacceptable.

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<![CDATA[Trump’s Misuse of Unilateral War Powers --Key to Mainstream Legitimacy; Dangerous Prelude to Fascism?]]>Sat, 08 Apr 2017 21:55:44 GMThttp://permanent-state-of-emergency.com/blog/trumps-misuse-of-unilateral-war-powers-the-key-to-mainstream-legitimacy-or-dangerous-prelude-to-fascismPicture
On Friday, April 7, 2017, President Trump ordered an air strike against the Syrian Government's Shayrat Air Base. 

The Trump Administration claims that the attack was to punish the Syrian Government for using chemical weapons against civilians in Khan Shaykhun governate during the preceding week. However, it has not been established that the Syrian Government was responsible for the release of the cloud of toxic gas; the Organization for the Prohibition of Chemical Weapons had asked the international community to avoid taking actions that would prejudice its ongoing investigation.

Before the air strike, heads of government such as Canadian Prime Minister Trudeau spoke of the need for an investigation before any action. In his words: “There are continuing questions ... about who is responsible for these horrible attacks against civilians, and that's why I'm impressing on the UN Security Council to pass a strong resolution that allows the international community to determine first of all who was responsible for these attacks and how we will move forward.”

Trump was not inclined to wait for the facts to become clear.  Shortly before the U.S.’s attack, Trump criticized President Obama for not bombing Syria without UN approval after the 2013 chemical weapons attack in Ghouta.  Serious doubts remain about whether the Government was responsible, or whether this was an act of the so-called 'rebels', who are largely comprised of and led by members of al-Qaeda in Syria (which renamed itself Jabhat Fateh al-Sham in 2016), which have been armed quasi-covertly by the United States, and more openly by Saudi Arabia and the gulf states, with Turkish assistance.

Some of those who pointed the finger of blame towards these 'rebels' could not be brushed aside. Carla Del Ponte was serving at the time as a member of the Independent International Commission of Inquiry on the Syrian Arab Republic, having been appointed by the United Nations High Commissioner for Human Rights.  Shortly after the Ghouta attack, she asserted that the 'rebels' had used chemical weapons.  (Del Ponte is also an experienced war crimes investigator, having previously served as the Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia). 

Western governments pushing for war on the basis of this flimsy pretext ran into resistance.  When the Intelligence Services of the United Kingdom presented the case in 2013 that the Syrian Government was responsible, Parliament rejected it.  As Peter Flatters noted, “[w]ith the Prime Minister claiming that intelligence findings were compelling enough to warrant action, the remarkable thing was Parliament’s response — namely that it did not believe him, or rather that it insisted on seeing the evidence for itself.”   

It was evident in 2013 that Parliament learned its lesson after being presented with fraudulent evidence before the Iraq War.  The “intelligence and the facts were fixed around the policy,” to use the words quoted in the Chilcot Commission's Report.  (The Report concluded that Prime Minister Tony Blair had lied about Iraq possessing chemical weapons in order to justify the Iraq War to Parliament, just as Secretary of State Colin Powell & Ambassadors Samantha Power and Nikki Haley lied to the United Nations about Iraq and Syria's possession of  chemical weapons.) Ultimately, President Obama recognized that the evidence about the Ghouta chemical attacks was insufficient for him to proceed against Syria without the cover a new ‘coalition’ after the Parliament of the United Kingdom declined to join it, as his Director of National Intelligence told him that the evidence wasn’t a “slam dunk”, a coded allusion to the fact that the evidence was even flimsier than that given to President Bush by his Director of Central Intelligence, George Tenet. 

Trump is not one to fear damage to his reputation after being later proven wrong.  His gamble appears to have paid off: despite proceeding without any evidence of the Syrian Government's responsibility, Trump is now basking in the adulation of the American foreign policy establishment. He has wiped all discussion of his alleged links to Russia from the headlines; today the country’s five most read newspapers have published eighteen opinion pieces –all in favour of Trump’s attack. The entire spectrum of political opinion is united in its praise: even Elizabeth Warren approved, arguing that the “Syrian regime must be held accountable” and agreeing that Trump had the power to conduct air strikes for sixty days before seeking authority from Congress. This was three days after she criticized Trump for “show[ing] contempt for our Constitution” by cooperating with Republican Senator’s amendments to the rules for calling a vote on a judicial nomination.

Warren was wrong on both counts. The Rules Clause of Article I of the Constitution states that: “Each House may determine the Rules of its Proceedings”, which allows the Senate to amend its voting rules. However, the War Powers Clause states that “The Congress shall have power . . . To declare War”.  The International Committee of the Red Cross concluded that the air strike created a state of war between the United States and Syria: “Any military operation by a state on the territory of another without the consent of the other amounts to an international armed conflict.” According to Professor Amal Saad of the Université Libanaise, this means that under the Law of Armed Conflict, proportional attacks on the United States by Syria (or its ally, Russia) are authorized under the Article 51 of the UN Charter, while the United States is liable for any war crimes it commits, as its forces are unlawful combatants.

In short, Trump violated both domestic and international law in an incredibly reckless escalation of a serious and intractable conflict. What is even more shocking is that in launching the war (that Hilary Clinton and her foreign policy establishment wanted desperately), he has rehabilitated himself: politically connected pundits like Nicholas Christof and Fareed Zakaria all agree. When asked about this significance of the attack, Zakaria said that “I think Donald Trump became president of the United States. I think this was actually a big moment.” Peaceful coexistence with Russia was treason –-but when an undeclared state of war launched by an unlawful attack that exposes America to lawful counterattacks, well, that is patriotism.

Trump has demonstrated a remarkable capacity to learn how to manipulate the political establishment. They have just taught him that he has a get-out-of-jail-free card: he need only launch an attack against another small country and all will be forgiven.  (Prime Minister Justin Trudeau fell into line immediately, with an embarrassing volte-face).   However, this is a dangerous lesson to teach a political strongman with no respect for the existing political conventions. He might take it further than President Reagan or the Bushes and use the state of war as an opportunity to crush his political opponents and destroy any remaining limitations on his authority. Trump is just the man to do it; only time will tell whether he will seize the opportunity.  Trump has the world's largest military and the largest nuclear arsenal at his disposal.  It is terrifying to think that he is learning that the more he uses it, the more popular and powerful he becomes.

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<![CDATA[Reconfiguring the Judiciary in Trump's Image: How and Why]]>Fri, 31 Mar 2017 17:46:21 GMThttp://permanent-state-of-emergency.com/blog/reconfiguring-the-judiciary-in-trumps-image-how-and-whyPicture
 The first days of the Trump Administration have underscored the role that the judiciary could play in blocking the executive branch. It also highlights the importance of securing the appointment of a compliant set of jurists, particularly those who are committed to presidential supremacy.

The Gorsuch nomination demonstrates that the optimal judicial nominee is one who shares a key (mistaken)  belief--namely, the view that the president's inherent power to interpret his constitutional responsibilities as he sees fit--has been tested under fire, while serving in the trenches with the executive branch's legal advisers. In the course of that service, those who find the Department of Justice's defences of indefinite arbitrary detention, torture, and extrajudicial assassination distasteful can be encouraged to find more lucrative work in private practice.

This winnowing process leaves behind a hardened cadre of true believers willing to work on a government salary within the Beltway in search of a great reward --of the type extended to now-Justice Alito and soon-to-be-Justice Gorsuch. Their prayers may soon be answered, as President Trump looks to fill a record number of vacancies in the federal judiciary. In doing so, he may follow and expand this well-trod path for the most loyal zealots.

While the executive branch now has firm control over the Supreme Court and the D.C. Circuit (which is of particular importance since virtually all cases brought against senior officials are under its purview), the federal courts scattered across the land are capable of damaging the executive's agenda. While their rulings are subject to being reversed, they can stall the agenda and score rhetorical blows, which are particularly damaging to an Administration struggling for momentum and credibility.

It is no coincidence that the first serious challenge to the Trump Administration's use of executive orders came from the Ninth Circuit, which has historically been controlled by the nation's most liberal jurists. Washington v. Trump shows the executive sees this as a problem to be addressed. Indeed, it has understood this for some time. The only defence of Trump's immigration orders comes in the form of a dissent from the Ninth Circuit's decision to decline en banc review of a panel's review of the decision to grant the temporary restraining order barring access to refugees and immigrants from seven specified countries. The author of this very infrequent sort of dissent (which sketched out an argument that the Supreme Court should reverse the Ninth Circuit's ruling) was Judge Jay Bybee.

Jay Bybee was the chief of the legal service for the executive branch --formally known as the Assistant Attorney General for the Office of Legal Counsel, Department of Justice (the "OLC"). In that capacity, he signed the "torture memos" that specifically authorized waterboarding, along with other forms of abuse that had been recognized to be war crimes by such authorities as the International Military Tribunal for the Far East. Contemporary observers (such as the general counsel of the US Navy) criticized the opinion for its "catastrophically poor legal reasoning" about the legality of torture, but the Bush Administration attempted to destroy all the legal memoranda that criticized Bybee's conclusions.

Bybee obtained his position at the head of the OLC after serving for five years in a sensitive position at the Office of Legal Policy of the Department of Justice and then spending ten years in academia. At the time of his appointment to the Ninth Circuit, Bybee was fifty years old, which put him in the position of being able to influence that court's jurisprudence for decades to come.

Bybee's appointment put his colleagues on the court in a difficult position. They were required to extend him professional courtesies even after a investigation by the Office of Professional Responsibility released a report concluding that Bybee had committed "professional misconduct" by writing the torture memos. They also were forced to adjudicate appeals of a lawsuit suing him and other officials brought by the victims of the torture he approved, which were decided while Bybee was the subject of a war crimes investigation in Spain. Bybee weathered all of these storms, and can now look forward to more of his colleagues from the Bush Administration's legal offices joining him on the bench, as they are the pool from which the Trump Administration's judicial nominees will be drawn.

A recent leak from the office of the White House Counsel revealed that Trump has turned his attention to filling what one NGO called the "alarmingly high number" of federal judicial vacancies. The nomination crisis created by the Republicans during the Obama Administration (exemplified by the unprecedented failure to consider the nomination of Judge Merrick Garland to the Supreme Court) had given Trump an unparalleled opportunity to reshape the federal courts in his own image. Reportedly, Trump is looking at young conservative law professors in their late 30s and early 40s, who likely served in the Bush Administration as well. In short, Bybee and Gorsuch's subordinates and accomplices to the executive branch's atrocities.

Soon these jurists will likely sit in judgment on challenges to the renewal of "war on terror" programs that closely resemble those that they crafted and defended. Even the temporary and rhetorical judicial rebukes to executive illegality will then cease. It is difficult to imagine how it will be challenged in that event; with the doors to the courthouses barred, they will likely take place in the streets, for better or for worse.


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<![CDATA[Gorsuch Filibuster Ignores His Record of Enabling Torture]]>Thu, 23 Mar 2017 22:07:31 GMThttp://permanent-state-of-emergency.com/blog/gorsuch-filibuster-ignores-his-record-of-enabling-torturePicture
Today Senator Chuck Schumer announced the Democratic Party would attempt to block the confirmation of Judge Neil Gorsuch. Schumer argued that Gorsuch favours corporate interests over the "little guy", pointing in particular to a dissenting opinion in the "frozen trucker" case. In that dissent, Gorsuch argued that a driver who had not waited beside a vehicle awaiting repairs was ineligible for protection from being fired. Alluding to what he believed was Gorsuch's deficit of compassion, Schumer argued: "We do not want judges with ice water in their veins."

There are many good reasons to oppose Gorsuch's confirmation. That said, it is remarkable that the most troubling evidence has not received more attention. Gorsuch is an executive branch loyalist. He was willing to accept any argument that the President's prerogatives are unlimited, even when this allegedly includes the power to order torture.

Gorsuch, like almost every Republican nominee of the post-Watergate era, was nominated after extensive service in sensitive and highly political positions within the executive branch. In his case, this included service in the Department of Justice's Office of Legal Counsel, where the most extreme claims of executive power were developed during the 'war on terror'. Gorsuch joined that office after it had become clear that its opinions had helped create a dystopian parallel legal order. Multiple scandals at Guantanamo Bay and Abu Graib had already exposed the horrific consequences of enabling an executive that believed it had the constitutional authority to approve indefinite arbitrary detention, torture, and extrajudicial killing.

While at the OLC, Gorsuch fought to keep the torture program secret and defended the executive from those who would hold it accountable, including from Khalid El-Masri.  El-Masri was a German citizen kidnapped by the CIA owing to a mistaken identification; after being flown to a black site in Afghanistan, tortured, and sodomized, he sued the United States.  Gorsuch blocked the lawsuit by asserting the state secrets privilege. (El-Masri ultimately proved his claims in the European Court of Human Rights). For derailing El-Masri's lawsuit, Gorsuch was praised by his bosses in the executive branch for "protecting the ability of the institution of the Presidency" --in other words, for maintaining the unaccountability and impunity of an executive that was determined to commit gross violations of domestic and international law.

Gorsuch also served as a cheerleader for the Guantanamo Bay detention camp, writing to its commander in 2005 that "your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of . . . [which] makes my job of helping to defend it before the courts all the easier." This was at the height of the torture program; a year later, three detainees would be tortured to death at an off-the-books black site at GITMO known as "Camp No."

Gorsuch attempted to unconstitutionally deprive courts of the ability to review petitions from GITMO, by inserting jurisdiction-stripping provisions into the Detainee Treatment Act.  Afterwards, he crowed that "The Administration's victory is not well known but shouldn't be understated." (Fortunately, these provisions were later struck down by the Supreme Court).  Conversely, Gorsuch lamented the Act's restrictions on torture. He argued that Senator John McCain's scruples--based on his experiences being tortured as a prisoner of war--were trivial, writing "Did torture elicit useful intel? Yes." He then drafted a signing statement that indicated that the executive reserved the right to ignore the torture ban; it contained the breathtaking claim that courts could not review the actions of the Commander-in-Chief, "consistent with the constitutional limitations on the judicial power."  In plain English, Gorsuch argued that the President has the power to ignore the courts.

While other lawyers resigned rather than become accomplices to torture, Gorsuch relished his opportunity to contribute. Jameel Jaffer (former Deputy Director of the ACLU and author of a book on the OLC's "torture memos") noted that "The documents provided by the Justice Department to the Committee suggest that Judge Gorsuch was comfortable with the policies and with the Bush administration’s defenses of them, and, indeed, that it was challenges to the policies that troubled him." Indeed, Gorsuch concurred that it was "surprising that more has not been made" of the release of the names of the law firms that had provided free legal assistance to the Guantanamo Bay detainees (or, as he and his colleagues put it "help[ing] alleged terrorists"), many of whom were later proven by those firms to be wholly innocent.

While Gorsuch has managed to avoid providing any indication of how he would rule on important issues like health care and reproductive rights, there can be no doubt about how he would rule on challenges to presidential powers. While he will blithely concede that "no man is above the law", for years he attempted to create a legal order in which the president--alone--had the power to determine whether his actions were legal and constitutional. As this included the ability to authorize torture, Gorsuch, like the six Bush Administration officials who were indicted by Judge Balthasar Garzon, should not be seated on the bench. He should be standing at the bar of justice as a defendant.  Rather than focusing on the ice water in his veins, Senate Democrats should be paying more attention to the blood on his hands.

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<![CDATA[Trump and the Pentagon Accelerate GITMO Show Trials]]>Tue, 21 Mar 2017 22:16:19 GMThttp://permanent-state-of-emergency.com/blog/trump-and-the-pentagon-accelerate-gitmo-show-trialsPicture
Guantánamo Bay has fewer detainees in the Trump Administration than it did during his predecessors’ tenure –at least, until such time as the President makes good on his promise to “load it up with some bad dudes”.  Despite this, it has never been more sinister, or at least more Kafkaesque.  Camp Justice, where the military commissions sit, is gearing up for more mockery.

The executive branch has worked hard to get to this stage, against significant resistance.  In 2006, the Supreme Court ruled that Salim Hamdan’s trial by military commission could not proceed, owing in part to its failure to conform to the Geneva Conventions.  Accordingly, if the Bush Administration had proceeded under the existing regime, it might have been guilty of war crimes.  However, Congress stepped in twice to attempt to provide a legal basis for these tribunals, and President Obama signed the Military Commissions Act of 2009, which revived the charges against such detainees as Omar Khadr, a Canadian who had been arrested as a fifteen year old, brought to Afghanistan by his father. 

Khadr was put on trial for his life under conditions that were repeatedly denounced by international observers: he was denied exculpatory evidence and access to the evidence against him (such as it was: the tribunal explicitly allowed the introduction of hearsay evidence and anonymous witnesses for the prosecution).  A number of military officials were barred from participating after attempting to exercise undue command influence, and prosecution witnesses were withdrawn in order to keep details of the torture program secret, despite the fact that evidence obtained under “enhanced interrogation” is explicitly permitted.

After numerous failures of this sort, the Pentagon is determined to proceed against its most hated detainees, the same men that they subjected to the worst forms of torture, including mock execution, a month of confinement in a coffin-sized box, and sodomy.  Unfortunately, it appears that this torture had destroyed these detainees’ minds: one of those alleged “masterminds” of terrorists attacks about to be tried was described as “the dumbest terrorist I ever met” by the CIA’s Director of Operations, while the FBI’s leading al-Qaeda specialist said another was “insane, certifiable, split personality.” Dr. Sondra Crosby described another high value detainee (Abd al Rashim al Nashiri) as having been “irreversibly damaged by torture that was unusually cruel and designed to break him”, while Abu Zubaydah, who lost an eye and suffered brain damage under torture, “cannot picture his mother’s face or recall his father’s name.”

Numerous American politicians have argued that prisoners cannot be released—even if they were factually innocent—because they have been radicalized by their treatment at GITMO; they hate America owing to being tortured by Americans.  One Republican staffer said that “whether they were radicals before they got to Guantánamo or they were radicalized while they were there doesn’t really matter.”  But there is substantial evidence that many detainees were not radicals when they got there.  In addition to clear cases of mistaken identity (including Afghans who happened to have the same name as terrorism suspects) there were numerous teenagers and even children among the detained.  Mohammed el Gharani was fourteen when he arrived at GITMO; Mohamed Jawad may have been as young as twelve at the time of his detention. 

There is also no compelling evidence that innocent detainees nurse burning hatred towards their captors.  Mohamedou Slahi endured the worst forms of torture during his fourteen year detention without charge; after his release he noted that “Anger is very painful in the heart.  So why should I be angry? Why should I pay twice?” He and his lawyers told 60 Minutes that he “forgives” and he “loves Americans”, as many--including his dauntless lawyer--supported him for years.  It is impossible to read The Guantanamo Diaries or see his smiling face and believe that he has become the racist caricature that sustains the belief that the detainees are too dangerous to release.  The same is true of Omar Khadr, who demonstrated his moral superiority to his torturers in Guantanamo’s Child, a remarkably moving documentary film.

It is possible that the flood of sympathy towards Slahi, Khadr and others has motivated the Administration and the Pentagon to stage a travesty of justice involving prisoners it tortured past the point of madness.  These are not only “show trials” in the sense of being designed to produce propaganda; they are also not true trials because they are heads-I-win-tails-you-lose propositions.  The detainees will likely be executed if found guilty, but if found not guilty, they will not be released.  This is the reason why they have been labelled “forever prisoners.”

In 2011, the Obama Administration transferred Khalid Sheikh Mohammed from the civilian justice system back to the GITMO military commissions.  When the alleged mastermind of the 9/11 attacks was arrested in Pakistan, he was photographed wearing western clothing and a short mustache.  When he appeared before the military commission in 2012, on his head he wore a shemagh wound like a turban and a white bisht worn like a hooded cloak.  The commission later gave him the right to wear a camouflage vest.  This, in combination with his flowing salt-and-pepper beard, created a striking similarity to the iconic depiction of Osama bin Laden. Kangaroo court convictions of detainees tortured into insanity because they resemble hate figures would be a new low for the United States.  Brigadier General John G. Baker—chief defense counsel for the detainees facing military commissions, provided this apt analysis:

“Justice Jackson said in his opening argument at Nuremberg: ‘We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.’ Instead of respecting the Constitution and ensuring equal protection under the law, the U.S. Government is choosing to drink from a poisoned chalice.” 

It appears that the poison is now spreading through the veins of the American body politic.  When the symptoms manifest, they may prove lethal to its constitution.  


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<![CDATA[Trump, Torture, and the State Secrets Privilege]]>Thu, 16 Mar 2017 21:01:32 GMThttp://permanent-state-of-emergency.com/blog/trump-torture-and-the-state-secrets-privilegeLawyers from the Department of Justice filed motions last week to prevent CIA Deputy Director Gina Haspel and other top officials from being forced to testify about the development of torture programs at Guantánamo Bay and various black sites. 

The lawsuit brought by the next of kin of a man killed in a CIA secret prison and others who were tortured was brought against two military psychologists, James Earl Mitchell and James “Bruce” Jessen.  This was compensation for developing a program described by the former acting General Counsel of the CIA as “sadistic and terrifying”, and which violated the laws of war and the Convention Against Torture. 

Mitchell Jessen & Associates received $81 million to develop the program, which was reverse-engineered for the military’s Survival, Evasion, Resistance, and Escape training, where pilots and others learned to resist interrogation under torture, primarily in the forms administered by America’s enemies during the Cold War and the Second World War. 

Any interrogation program developed from these techniques was certain to produce false confessions; numerous Americans--including Senator John McCain—said so.  Conversely, in the early days of GITMO, FBI interrogators complained that every time they were successful in building rapport with detainees (a process that is critical to obtaining truthful confessions) “the military would step in” and derail that process. 

Leaked memoranda confirmed that this was because Vice President Cheney and Secretary of Defense Donald Rumsfeld were determined to obtain confessions that implicated Iraq in the 9/11 attacks –which was entirely false.  This justified the creation of an interrogation that annulled any possibility of true confessions, since they were swamped by the false confessions that detainees would constantly produce in attempts to stop the torture.  It led to numerous wild goose chases that depleted the limited resources of the FBI.

Mohamedou Slahi, who was held for fourteen years at GITMO recently recounted on 60 Minutes that “they broke me. I told . . . the boss of my team, ‘You write anything and I sign it.” On that basis, Slahi confessed to a nonexistent plan to blow up the CN Tower in Toronto.  This was so blatantly untrue that the man charged with prosecuting Slahi before a military tribunal chose instead to resign.

While Slahi was later released, “high-value” detainees who will never see the light of day were subjected to considerably worse treatment.  Abu Zubayadah was subjected to waterboarding 83 times in a single month at black sites in Thailand supervised by Gina Haspel.  This technique, which involves actual asphyxiation and not merely simulated drowning, was the basis for the prosecution of numerous Japanese war criminals tried by the American authorities after the Second World War.  Zubaydah was later deemed not to have any useful intelligence. 

President Bush used the outlandish confessions obtained by torture (including that an Al-Qaeda sleeper cell would detonate a nuclear bomb in Europe were Osama bin Laden to be captured) to justify the torture program that Mitchell and Jessen sold to the Pentagon. Their work was also essential to sustaining the drive for war that allowed the United States to justify the spending of trillions of dollars (the Iraq War alone cost $2.7 trillion, which is almost three million expenditures of a million dollars) and the loss of hundreds of thousands of lives. 

The lawsuit brought against them is essential to ensuring that this will not happen again.  Mitchell and Jessen have never served a day in prison, nor have they been forced to return the $81 million the Pentagon paid them.  The CIA officials who provided the top-level oversight of torture were brought back into the Trump Administration.   Haspel was also responsible for the destruction of evidence of the CIA torture program, an action condemned by the Senate Intelligence Committee.

In attempting to stop Haspel from being deposed in the lawsuit, the Trump Administration has asserted the State Secret Privilege.  In effect, this is an admission that she possesses information that would put the national security of the United States at risk.  Is this because she was appointed in order to revive a program designed to produce false confessions?  Trump has floated the possibility of reviving torture programs, although he has yet to do so. 

Trump’s appointment of Haspel to a position of great responsibility (which pleased hardliners on Syrian intervention, such as Clinton partisan and former Deputy CIA Director Michael Morell), which occurred even as her testimony was sought in the torture lawsuits, is the clearest indication yet of the possibility that the Trump Administration will continue the path of endless war on false premises in the Middle East, which led Bush to a quagmire (in Iraq) and Obama to create devastation (in Libya).  Nothing would be more dangerous to the rule of law, and potentially more useful to the erection of a durable Perónist regime in the United States.

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<![CDATA[Trump Can Turn Off His Telescreen Now: Can You?]]>Mon, 13 Mar 2017 01:32:41 GMThttp://permanent-state-of-emergency.com/blog/trump-can-turn-off-his-telescreen-now-can-youThe Trump wiretapping controversy has drawn attention away from the fact that President Trump is now in control of the intelligence surveillance apparatus (or at least, he will be once Dan Coats and all his subordinates are confirmed by the Senate). Trump's concerns with warrantless wiretapping are not principled; he was merely troubled by the fact that before his election, he was the target. As he is on the record as being in favour of renewing the extensive and unaccountable surveillance regime, we should devote some attention to what this will likely entail.

This analysis was made easier by the release by WikiLeaks last week of their "Vault 7" archive of classified documents, which reveal the capabilities developed by the CIA for advanced electronic surveillance. Many headlines have been devoted to the "Weeping Angel" program, which allows for eavesdropping by turning on the microphones of 'smart' televisions, while giving the target the impression that the television is off.

This program particularly disturbing because it calls to mind the telescreens of Orwell's 1984, but it is not significantly different from what Edward Snowden revealed about the National Security Agency's ability to turn on webcams secretly. Vault 7 reveals much more troubling information. Applications that were formerly thought to allow for secure communication can all be bypassed with new techniques that allow access to the kernels of smartphones -- this means that the encryption built into WhatsApp and Whisper is beside the point. The new CIA programs allow them to insert keystroke loggers onto users' iPhones and Android 'phones (BlackBerrys were cracked in 2009), and then upload the record secretly. It also allows for surreptitious uploads of geolocation records and other personal data.

Vault 7 reveals the disturbing proliferation of these tools. The FBI has been given access to these applications suites, which could create issues in law enforcement that would dwarf those created by the use of Stingray 'phone trackers. Additionally, the CIA admits that hackers, presumably from other nations, manged to obtain copies of the code for many of these applications, creating an arms race between foreign intelligence services, and allowing for ever more sophisticated computer crime (this follows the theft of very sophisticated malware code from a front for the NSA's Tailored Access Operations (the Equation Group) by an organization known as "The Shadow Brokers."

As concerns have been raised about the possibility that American elections could be "hacked", it is worth noting that the CIA used these techniques to exactly that to foreign nations. Vault 7 reveals that in 2012, the CIA conducted a ten-month operation to secure highly sensitive information on the candidates in the French Presidential Election. This raised eyebrows in the press, particularly as some reporters have speculated that the UMBRAGE program could be used to suggest to the targets of these attacks that they had been committed by other country's intelligence agencies.

There are also indications that the CIA is developing sophisticated cyberwarfare weapons by refining the Shamoon 2 virus, which was used to devastating effect against oil and gas companies Saudi Aramco and RasGas in 2012. (The CIA is developing similar capabilities as the NSA, which recently attempted to use the Stuxnet virus to derail the North Korean nuclear program --it failed, leading to a significant risk of war). Additionally, the CIA was researching ways of hacking and taking over control of passenger vehicles, purportedly as a means of assassination. The risks associated with the proliferation of these programs is virtually unimaginable; the development of these cyberweapons is unspeakably irresponsible.

CIA documents also reveal that mass surveillance is only possible with the collusion of major corporations, who have repeatedly proven themselves willing to assist intelligence agencies in breaching their customers' privacy. Vault 7 reveals that this has hit new heights -- the CIA now consults with a group of tech companies before they decide to reveal their discoveries of major security weaknesses. This is done so to prevent CIA hacking operations from being interrupted. At the same time, consumers are encouraged to believe that state of the art anti-virus/malware software and encryption can keep their information private --something which these companies know to be false. Those conducting mass surveillance rely on that illusion of security.

Most disturbingly, the executive branch writes the rules governing this surveillance, and rewrite them whenever it is necessary to expand its scope. The legislative oversight mandated by the rule of law is nonexistent. When Congress attempted to investigate the CIA's torture program, the Agency hacked the computers of Senate Intelligence Committee, but the Department of Justice (an executive branch agency) decided not to prosecute its colleagues in the intelligence community, who report to the same president at the end of the day. When Congress accepted this, and also failed to pursue Director of National Intelligence James Clapper for lying about dragnet surveillance on Americans, it set the stage for all the abuses that followed. Unfortunately, the Trump Administration will likely set a new bar for horrifying abuses of this surveillance technology.

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<![CDATA[Trump targeted by Foreign Intelligence Surveillance?]]>Wed, 08 Mar 2017 16:20:31 GMThttp://permanent-state-of-emergency.com/blog/trump-targeted-by-foreign-intelligence-surveillance Last week, President Trump sensationally alleged that his campaign had been subjected wiretapping by the Obama Administration. BBC News reported that Trump campaign officials were targets of an inter-agency task force, likely investigating campaign finance and lobbying rule violations; one of those officials was Paul Manafort, a lobbyist and consultant serving as the chairman of the Trump campaign. (John Podesta, the chair of the Clinton campaign, was also the chairman of a lobbying firm; his brother and associate is a registered foreign agent for the Kingdom of Saudi Arabia, among other countries).

BBC revealed that the Foreign Intelligence Surveillance Court declined to issue a warrant that would authorize the surveillance of these officials. This is highly unusual, given that court's practice of approving virtually every application of that type (with a historical rejection rate of 0.03%). It should be noted that the warrant application did not allege there was probable cause these officials committed a crime. However, the denial was likely predicated on the court's fear of "reverse targeting", in which information obtained pursuant to exemptions that apply only to foreign intelligence gathering is later used in criminal prosecutions, contrary to the Fourth Amendment.

The subsequent (and unverified) allegations that led to Trump's outburst raise the possibility that after this warrant application was denied, the National Security Agency concluded that they did not need a warrant owing to the executive branch's interpretation of the Foreign Intelligence Surveillance Act, which allows the President, through the Attorney-General, to authorize foreign intelligence surveillance ostensibly aimed at foreign entities or involving only business records. However, an administration's wiretapping of the other party's presidential campaign does raise the the specter of the Watergate break-in, when President Nixon sent his "special investigative unit" to bug the offices of the Democratic National Committee looking for "dirt" on George McGovern's campaign. Forty-four years later, this sort of effort would no longer require burglary, only hacking.

There is no scholarly consensus on the constitutionality of these procedures, nor is their any agreement in the executive branch on the boundaries of the permissible use of information obtained in this manner. However, in its last days, the Obama Administration loosened the already minimal restrictions, to allow the NSA (which conducts most foreign intelligence surveillance) to share what it obtains with other agencies (including law enforcement agencies like the Federal Bureau of Investigation) without first stripping out information on American citizens. The ACLU and other civil liberties organizations flagged this as extremely dangerous, as it magnifies the danger of reverse targeting exponentially.

Amidst calls for a Special Prosecutor (who would not be independent, as I discussed in the last blog post) to investigate claims of Russian interference in the presidential election, there are now calls to empower him or her to look into the wiretapping allegations. It is likely that any investigation into the alleged misuse of intelligence surveillance will devolve even further into the political mire. Already, the debate is turning on appeals to the credibility of various officials.

Former Director of National Intelligence James Clapper asserted there was no such surveillance of the Trump campaign --his eminent position in the Obama Administration was used to buttress appeals to his credibility, despite the fact that while in that position he lied to Congress about the NSA's warrantless surveillance, and the fact that he was subsequently forced to apologize for this after Wikileaks and Edward Snowden revealed his deception. Supporters of each party also cherry-picked his statements: for instance, Democrats ignored the fact that Clapper attested that there was no evidence of Russian interference in the presidential election.

The fact that these allegations will not lead to a neutral and balanced assessment of foreign intelligence surveillance is troubling. For fifteen years, scholars used this sort of scandal as a worst-case scenario when arguing that the post 9/11 amendments to the Foreign Intelligence Surveillance Act were dangerous to democracy. It allows a president to misuse the NSA in ways that Nixon could only dream about; the politicization of the intelligence community also takes America one step closer to a banana republic.  It should be noted that before the scandal broke, Trump was on the record as an enthusiastic supporter of these surveillance programs.

Of all of Trump's faults, his desire to seek peaceful coexistence with Russia hardly seems the most egregious (except perhaps to hardliners seeking direct military intervention against the Syrian government). FISA's exemptions for intelligence surveillance created a system in which an allegation that a candidate is an agent of a foreign power became the only smear that mattered --because it was the only allegation that would allow for almost limitless surveillance at the executive's discretion.

As a result, many of Trump's democratic opponents are like a drunk looking for his keys under a streetlight: the keys--like Trump's scandals--might be somewhere else, but it's easier to see under the light than to search for what's in the shadows. Searching only where FISA surveillance leads has brought America back to McCarthyism, in which Russia is the enemy of enemies. This is not necessarily bad for the intelligence agencies (or at least for their budgets) but it may not be good for America, or for peace.

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