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When An American President Becomes Agent Provacateur

image: The White House/ flickr

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“Whoever can dominate the street will one day conquer the state, for every form of power politics and any dictatorship-run state has its roots in the street.”-Joseph Goebbels, Nazi Party Minister of Propaganda, Nuremberg rally, 1934

“The goal is to dominate the street.”-US President Donald J. Trump, June 1, 2020[1]

Without getting into the complex legal aspects ofan agent provocateur, one simple summary statement is useful to acknowledge: The American president’s public behavior on June 1 2020 was purposefully incendiary and patently unlawful. On that now-unforgettable day, Donald J. Trump, by ordering police,  special operations military, national guard and US Secret Service elements to forcibly clear a path for his photo-op walk to the nearby St James Church, crossed another critical line of presidential malfeasance. Here, rather than restrict deployed law-enforcement elements to their proper Constitutional and statutory roles, Trump commanded these agents  (1) to actively incite citizen wrongdoing, and (2) to exploit all such cynically engineered derelictions for his own presumptive political benefit.

Let us be candid. In matters of US and international law, it doesn’t get much worse than this. By his brazenly willful wrongdoing, Trump’s commands on June 1 carried an obvious and prospectively irreversible potential for personal injuries and death. This lamentable potential was further exacerbated by opaque deployments of “unmarked” US Special Force elements into selected parts of Washington DC, and by Secretary of Defense Mark Esper’s corollary injunction  to “dominate the battlefield space.”

The “battlefield?”  In this case, it  referred not to some distant area of hostilities, but to city streets of the nation’s capital. Americans, of course, are unaccustomed to such patently twisted meanings.
What are the relevant facts behind such problematic executive branch behaviors,  by the Department of Justice as well as Department of Defense? Prima facie, on June 1, 2020, Donald Trump’s personal security detail, then operating under impermissible cover of tear gas, rubber bullets and flash bang grenades, systematically provoked otherwise compliant and unthreatening peaceful demonstrators.[2] The US federal government behavior in this Goebbels-style incident was more than “just” unnecessary or inappropriate. It was grievously illegal, including plainly evident violations of Nuremberg Principles.[3]

As these Principles are now a part of authoritative international law,[4] the agent provocateur behaviors also represented variously serious violations of  U.S. law.[5] Significantly, inter alia, the Nuremberg Principles [6] require military, police and security officials to oppose any leaders’ orders to willfully injure innocent people or to commit any other verifiable crimes of state, including incitement to riot or insurrection.  Such commendably high expectations are routinely ignored in authoritarian or tyrannical regimes, but this fact is not exculpatory for the United States.

Markedly different in this US matter of June 1, 2020, was that certain “peremptory”[7] rules of international ambit and applicability were being systematically ignored or manipulated by an American president.

 When citizens of any proper democracy engage in observably peaceful protest, there exist no per se arguments for challenging presumptions of citizen innocence or for justifying civilian  mistreatment by national executive authorities. Aware of this in the June 1 St. James Church visitation incident, some Members of Congress called upon US Secret Service Director James M. Murray and certain  others to appear before the House of Representatives to explain their wrongful behaviors on June 1. In time, perhaps, the American public will be told what it ought to have been told from the start about what had actually taken place.

In addition to multiple legal derogations, it was a national humiliation for the United States to have rendered itself  comparable to Adolph Hitler’s Sturmabteilung (SA), and later to the Stosstrupp-Hitler (SSH) or Schutztaffel (SS).[8] Increasingly, however, the law-violating behaviors of US President Donald Trump in these matters have  lent palpable credence to such an irremediable humiliation.  These significant derogations cannot simply be covered up or whispered away.

Already done, they cannot be undone.

Apropos of  the Nuremberg Principles of international law, since 1950 an unalienable  part of the laws of the United States, all persons are obliged to resist crimes of state. Though the June 1, 2020 incident did not rise to any determinably high level of criminal behavior, it remains legally worrisome for the United States on several intersecting levels. This is due to the president’s conspicuous indifference to assorted peremptory norms of human rights law, and to the unwillingness of individual agents provocateurs to resist what then amounted to  injurious and universally prohibited crimes of state.

Although these US crimes were relatively minor, they nonetheless represented willful violations of individual legal responsibility for federal agents of law enforcement. Noteworthy, too, is that the wider context of these officially committed and incited wrongdoings centered on properly law-based protests against racism and human rights violations here in the United States. It follows that these illegal behaviors of an American president and his pertinent agencies were not “merely” violative of peremptory Nuremberg Principle obligations. They also represented unjustifiable interference with an authoritative body of codified and customary human rights norms.[9]

Looking to the future, the President of the United States should more determinedly guide all federal agencies on a proper path of law-respecting conduct. Under no circumstances should this path involve transforming the respective agents “in play” into US agents provocateurs. By definition, any such transformation would critically defile and undermine America’s most elementary principles of justice.

Going forward, the goal of an American president should be not to “dominate the street,” but rather to allow or facilitate all otherwise permissible expressions of US civilian protest. If there should  still remain any doubts about this core obligation, one need only recall that Donald Trump’s selected words were an exact literal replication of Nazi Minister of Propaganda Joseph Goebbels’ 1934 rally comments for the Third Reich. Is this in any way a proper model for the United States?


[1] The startlingly close verbal congruence of the Goebbels and Trump statements is most markedly worrisome here. Inter alia, it is difficult to believe that the US President’s pertinent speech writer was unaware of Goebbels’s exact words. More than likely, these words were deemed by him an appropriate model for Donald J. Trump.

[2] In this connection, the fact that this provocation was systematic rather than merely random or visceral has various pertinent legal implications. In essence, this “systematic” quality makes the associated dereliction more egregious.

[3] See: Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, Adopted by the UN International Law Commission, 2 August 1950. UN Doc. A/1316, 2 Y.B.I.L.C. 374 (1950).

[4] International law, which is a part of US law,  is itself ultimately deducible from Natural Law. According to Blackstone, this is the reason why the Law of Nations is necessarily binding upon all individuals and all states. Each state and its leaders are expected “to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law . . . .” WILLIAM BLACKSTONE, PUBLIC WRONGS, in COMMENTARIES ON THE LAWS OF ENGLAND, Book 4 Ch. 1 (Philadelphia, J.B. Lippincott & Co. 1893).  Though assuredly not known to President Donald Trump or even to his closest and most senior legal advisors, Sir William Blackstone’s Commentaries represent the core foundation of all subsequent US law.

[5]In precise words of Mr. Justice Gray, delivering judgment of the US Supreme Court in Paquete Habana (1900): “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction….” (175 U.S. 677(1900)) See also Opinion in Tel-Oren vs. Libyan Arab Republic (726 F. 2d 774 (1984)).Further, the specific incorporation of treaty law into US municipal law is expressly codified at Art. 6 of the US Constitution, the so-called “Supremacy Clause.”

4.See:https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?referer=https://search.yahoo.com/&httpsredir=1&article=1151&context=ilr

[7] Under international law, a peremptory norm is “a norm accepted and recognized by the international community of States as a whole from which no derogation is permitted….” See Art. 53 of Vienna Convention on the Law of Treaties; entered into force, 27 January 1988.

[8] Over the twelve years of the Third Reich, other here-relevant bodyguard organizations were created: The Fuhrerbegleitkommando (FBK), the Leibstandarte SS Adoplh Hitler (LSSAH), and Reichssicherheitsdienst (RSD). At Nuremberg after the War, he behavior of these Fuhrer protective units were considered together and with other Nazi institutions with regard to both Crimes of War and Crimes Against Humanity.

[9] For authoritative sources of international law, see art. 38 of the Statute of the International Court of Justice: STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, Done at San Francisco, June 26, 1945. Entered into force, Oct. 24, 1945; for the United States, Oct. 24, 1945.  59 Stat. 1031,  T.S. No. 993,  3 Bevans 1153, 1976 Y.B.U.N., 1052.Court of Justice: STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, Done at San Francisco, June 26, 1945. Entered into force, Oct. 24, 1945; for the United States, Oct. 24, 1945.  59 Stat. 1031,  T.S. No. 993,  3 Bevans 1153, 1976 Y.B.U.N., 1052.

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

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Americas

Biden’s Department of Justice: parents as domestic terrorists

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In recent developments in the United States, US Attorney General, Merrick Garland, and the FBI have put under the FBI radar parents as potential domestic terrorists. You heard it right. This is now a new formal legal policy contained in memos of the Department of Justice trying to reign in parents discussions on Biden’s new school curricula. They are not going after potential outbursts but outright terrorism. 

This is an attack on freedom of speech in the sense that parents have the right to discuss and disagree with the new Biden school curricula. This is where the issue originated: parts of Biden’s new school curricula are not accepted by many parents and if they disagree, the FBI treats them now as potential domestic terrorists as a matter of policy. Apart from a First Amendment case, this is also a case for international human rights law and I reported the development to the UN Special Rapporteur on freedom of speech this week hoping to get a statement.

The Department of Justice is referring to some constitutional provision on “intimidation of views” to override and take down one of the most firmly established rights, the right to freedom of speech, in quite frankly a ridiculous interpretation. Those parents that dare to speak up against controversial parts in the new text books could be investigated for domestic terrorism. This is the most incompetent interpretation on limitations of freedom of speech I have seen in awhile. 

Garland and the FBI have totally lost their marbles. The woke discussion is not funny to me anymore. It increasingly looks like a woke tyranny that has nothing to do with rights and equality anymore but simply serves as a vehicle to empower the FBI to run wild against regular people. This lunacy needs to be stopped.

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Iran poll contains different messages for Biden and Raisi

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“It’s the economy, stupid.” That is the message of a just-published survey of Iranian public opinion.

However, the substance of the message differs for newly elected hardline Iranian President Ebrahim Raisi and the Biden administration as Mr. Raisi toughens his negotiating position and the United States grapples with alternative ways of curbing the Islamic republic’s nuclear programme should the parties fail to agree on terms for the revival of the 2015 international agreement.

Iranians surveyed last month by Iran Poll and the University of Maryland’s Center for International and Security Studies were telling Mr. Raisi that they are looking to him to alleviate Iran’s economic and other problems and have little hope that a revived nuclear agreement will make the difference, given lack of trust in US and European compliance with any agreement reached.

The Iranians polled seemed in majority to endorse some form of Supreme Leader Ayatollah Ali Khamenei’s notion of a “resistance economy” as a way of blunting the impact of the US sanctions imposed by former President Donald J. Trump after he walked away from the nuclear agreement in 2018. Some 65 per cent of the responders said they favoured a self-sufficient economy; 54.2 per cent expected the economy to at least improve somewhat in the next three years.

A large number expressed confidence that Mr. Raisi would significantly lower inflation and unemployment, increase Iran’s trade with other countries, control the pandemic and root out corruption.

Meanwhile, 63 per cent suggested that Iran’s economic situation would be the same, if not better, if there were no return to the agreement and the government continued to pursue a civil nuclear programme. The figure seemed at odds with the 80 per cent who said Iran’s economic situation would improve if Iran and the United States returned to the agreement and both fulfilled their obligations under the deal.

The divergence may be a function of the fact that the poll, unsurprisingly, indicated that Iranians (64.7 per cent) had little trust in the United States living up to its commitments even though they expected the Biden administration to return to the deal (57.9 per cent). As a result, 73.1 per cent of those surveyed said Iran should not make concessions given that world powers would not live up to commitments they make in return.

At the same time, 63 per cent blamed the troubled state of the economy on domestic mismanagement rather than US sanctions. Only 34.4 per cent believed that the sanctions were the main cause of their economic difficulty. Iranians pointing the finger at the government rather than external forces was also reflected in the 60.5 per cent of those polled blaming Iran’s water shortages on mismanagement and bad policies.

The poll suggested that by emphasising domestic mismanagement, Iranians were going to judge Mr. Raisi on his success or failure in countering the debilitating effect of the sanctions even though 77.5 per cent of those surveyed said that the sanctions had a negative or somewhat negative impact on the economy.

Implicitly, Iranians were holding former Iranian President Hassan Rouhani responsible for the mismanagement given that Mr. Raisi only took office in August. Rated very favourable by 61.2 per cent of Iranians surveyed in 2015, Mr. Rouhani’s favorability dropped to 4.6 per cent in the most recent poll. By contrast, the favourable views of Mr. Raisi soared from 38.3 per cent in 2014 to 77 per cent last month. IranPoll and the Center have been conducting annual of surveys since 2014.

Mr. Raisi may have taken pleasure from that but more importantly, the poll implicitly suggested that he does not have much time to produce results before his significant public support starts to wane.

Of those polled, 66.7 per cent expected Mr. Raisi to improve Iran’s international standing, 55.7 per cent said he would be in a better position to negotiate with world powers, and 45.2 per cent predicted that he would enhance Iran’s security. Those expectations may have been to some degree validated in the public’s mind by last month’s acceptance of Iran’s application for membership in the Shanghai Cooperation Organization (SCO) that groups China, Russia, India, Pakistan and several Central Asian states.

The survey results seemed to suggest that ordinary Iranians were framing their message to the United States differently from the assessment of prominent scholars and analysts. The divergence may well be one primarily of timing but nonetheless has implications for policymaking in Washington. The message of the respondents to the poll was one of immediate impact while analysts and scholars appear to be looking at the middle term.

Without referring to the poll, Vienna-based economist and strategic consultant Bijan Khajehpour argued this week, seemingly contrary to the poll, that “mismanagement and the Covid-19 pandemic have both contributed to Iran’s poor economic performance in recent years, but it remains that US sanctions…will be the key factor in determining Iran’s future prospects.”

Mr. Khajehpour went on to say that “high inflation, capital flight and the erosion of household purchasing power alongside mismanagement of resources and the deterioration of the country’s infrastructure have the potential to spark more protests and further undermine the already faltering legitimacy of the Islamic Republic in the eyes of the public.”

No doubt, the jury is out on how Iranians respond if and when Mr. Raisi fails to live up to their expectations. If the past is any indication, Iranians have repeatedly taken to the streets at often substantial risk to liberty and life to make their discontent with government performance evident as they did with the low turnout in this year’s election that brought Mr. Raisi to power.

The risk of renewed protests was reflected in the fact that responses to various questions regarding the electoral system, the limited number of presidential candidates (because many were barred from running), and the public health system showed that it was often a slim majority at best that expressed confidence in the system.

Add to that the fact that 68 per cent of respondents to the poll said that the objectives of past protests had been a demand that officials pay greater attention to people’s problems.

Yet, at the same time, they were telling the United States that its efforts to generate pressure on Iranian leaders to moderate their nuclear and regional policies by imposing harsh sanctions had for now backfired. Iranians were backing a tougher negotiating position by the Raisi government.

Ultimately that could be a double-edged sword for Mr. Raisi. He has to prove that he can be tough on the United States and simultaneously improve the lives of ordinary Iranians. Failure to do so could have in Mr. Khajehpour’s words “unpredictable consequences.”

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Gallup: World’s Approval of U.S. Govt. Restored to Obama’s Record High

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President Joseph R. Biden Jr. of the United States of America addresses the general debate of the UN General Assembly’s 76th session. UN Photo/Cia Pak

On October 19th, Gallup issued their “2021 Rating World Leaders” report and finds that “Six months into the first year of Joe Biden’s presidency, the image of U.S. leadership is largely restored in the world’s eyes. As of early August 2021, across 46 countries and territories, median approval of US leadership stood at 49%, matching the record high rating when former President Barack Obama first took office in 2009.”

Their year-by-year graph is shown of the global approval-ratings of the Governments of Germany, U.S., China, and Russia, by the populations of 44 countries, and of 2 territories (Hong Kong and Taiwan were included in their surveys because the U.S. Government wants to conquer both of those Chinese provinces, so as to weaken China). That chart clearly displays the following fact: thus far (six months into Biden’s Administration), the world viewed Biden as favorably as Obama, and far more favorably than Trump (even though Biden has been continuing almost all of Trump’s foreign policies). Apparently, the global public views Biden as being like Obama because his Party is the same as Obama’s, and his rhetoric also is similar. Though Trump’s international policies have been continued with little (if any) significant change under Biden, the world still has been viewing Biden as being like Obama (whom the world still views as having been the best world-leader during his Presidency), instead of like Trump (whom the world still views as having been the worst world-leader during his Presidency). Obama is still viewed far better than Trump, though (for example) two U.S-and-allied-banned news-sites had published, two days earlier, on the 17th, with full documentation, the major (but banned) news-report titled “First of over 200 bodies being exhumed from Lugansk mass grave. One of Obama’s atrocities.” It had been submitted to 200 news-media, and only those two published it.

Perhaps the world’s population is more swayed by rhetoric, and by Party-labels, than by a national leader’s actual policies (which, perhaps, they’ve not even known about — after all, how many know about those mass-graves?).

The Gallup surveys were done actually in 106 countries and in those two Chinese provinces that the U.S. Government wants to control, but “U.S. Leadership Approval” has, as-of yet, been calculated by Gallup only in these 46. Of the 108 total lands, 23 were in Africa, 38 in Europe (including Europe’s largest and most populous country, Russia), 30 in Asia, and 17 in “The Americas” (not including U.S., whose Government these surveys by Gallup have actually been designed to serve).

Remarkably, “While Germany and the U.S. had previously been vying for the top spot in the Americas, Germany’s leadership safely led the other countries in 2020, with a median approval rating of 50% in 2020. Russia earned higher approval ratings than China or the U.S., with a median approval rating of 41%. The U.S. and China earned similar, and far lower, approval ratings, of 34% and 32% respectively.”

Also: “Germany’s leadership continued to be the most popular in Europe, with a record-high median approval of 62% in 2020. China, Russia and the U.S. have all lost favor in Europe in recent years, and in 2020 they were all on equal footing, with approval ratings of around 20%.”

Furthermore, in Asia: “U.S. Leadership Image Still Mired at Record Lows” and these are lows that previously had been shown during the G.W. Bush and Trump Administrations; so, the U.S. Government’s rhetoric under Biden does not, at least yet, seem to be persuading Asians as much as was the case under Obama. Perhaps the Biden Administration will need to employ less-blatantly-hostile rhetoric against China than it has been using, in order to be able to get much support from Asians against China.

And, regarding Africa, “Ratings are not yet available” that are sufficient to determine whether or not, as has been shown since 2007, “the U.S. remained strongest worldwide in Africa,”or else changed up or down.

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