CONTROVERSY (2): How Independent Will the Special Prosecutor Be?

Ace Ankomah, a legal Practitioner

By Ace Ankomah

In the New Patriotic Party (NPP) "MANIFESTO FOR ELECTION 2016," Chapter 12, page 135, titled 'Governance, Corruption and Public Accountability,' the NPP proposed "to establish, by an Act of Parliament, an Office of the Special Prosecutor." This office is to "be independent of the Executive, to investigate and prosecute certain categories of cases and allegations of corruption and other criminal wrongdoing, including those involving alleged violations of the Public Procurement Act and cases implicating political office holders and politicians."

This Manifesto pledge has come into sharp focus since the NPP assumed the reins of government. I have followed quite closely, the debate as to the constitutionality, workability or otherwise of this proposal. In this paper I intend to review the relevant constitutional provisions and existing law on the subject. The view that I will seek to advance is that 'formal independence' by way of a complete autonomy or separation from the Attorney-General ("AG") would appear to be difficult to achieve under  the provisions of the Constitution because the AG retains responsibility over all prosecutions. However, 'substantial independence' by way of impartiality and neutrality may yet be achieved through the firm political will, definite intention, and resolved commitment of/by the government to allow the office holder sufficient freedom in fact to carry out the mandate with little to no interference.

THE ARTICLE 88 HURDLE

The difficulty with attaining 'formal independence' starts when one considers Article 88(3) and (4) of the Constitution that "all prosecutions" are: (i) the responsibility of the AG and (ii) commenced "in the name of the Republic," but "at the suit of" the AG or persons the AG has duly authorized.

The AG remains responsible for all prosecutions, and it would be difficult to assert 'formal independence' from an AG who remains in charge of and exercises authority over all prosecutions. However, prosecutions may be commenced (hence the use of the well-word term "at the suit of' or "ats") not only by the AG, but, importantly, also by persons the AG legally authorises to do so. Thus even within the overarching constitutional context and condition of the AG having ultimate responsibility for prosecutions, there is room for prosecutions to be commenced and conducted, not at the suit of the AG, but at the suit of other persons legally authorised by the AG to do so.

lt is therefore important to consider about four current legal provisions that relate to persons other than the AG who 'are currently authorised by law to conduct prosecutions, and the scope of the exercise of the AG's prosecutorial responsibility, and it is to these that I now turn.

Gloria Akufo, Attorney General

PUBLIC PROSECUTORS

The first is section 56 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which empowers the AG to issue Executive Instruments appointing two classes of persons as public prosecutors:

(i) public officers, or (ii) lawyers.

While the appointment of public officers as public prosecutors might be general, or for a specific class of crimes or area, the appointment of lawyers (and I presume that this applies only to lawyers in private practice) is restricted to "a particular criminal cause or matter." The section also recognises the power of the AG to "give express directions in writing" to such persons.

Thus although the AG could appoint a lawyer (and arguably the proposed Special Prosecutor) to conduct public prosecutions under this provision, there are two key drawbacks, namely (i) it cannot be a general appointment, but operate only on a case- by-case basis, and (ii) the AG retains the express power to issue written directions to such a person.
These drawbacks could or would defeat the critical "independence" requirement. This will not work.

LAW OFFICERS

The second, relevant provision is section 1 of the Law Officers Act, 1974 (NRCD 279), which permits three categories of people to "perform any of the functions vested by an enactment in the Attorney- General." These are:

(i) State Attorneys (and ranks above that) of the AG's Department,

(ii) public prosecutors appointed under section 56 of Act 30, and

(iii) "any other public officer if so authorised by the Attorney-General:"

In this provision as well, the persons mentioned are made expressly "subject to the directions of the Attorney-General," and those directions are even made confidential so that "evidence shall not be required to be produced that a direction has been given by the Attorney-General in regard to a matter."

A Special Prosecutor could be appointed under the third category mentioned above. But this also has two significant drawbacks, namely (i) the pro- vision appears to anticipate that person being a public officer first, before being authorised by the AG to prosecute crime, and (ii) the express mention of directions by the AG could or would water down the critical "independence" quality that the proposed
office would require. This will also not work.

POLITICAL CONTROL

Third, Article 297(a) of the Constitution gives to any person with power to appoint another person to a public officer, the implied power "to exercise disciplinary control over persons holding or acting in any such office and to remove those persons from office." Thus where the AG appoints prosecutors under the current legal regime, (s)he may purport to discipline them and even remove them from office.

While this power may be necessary so that person so appointed does not "tear chain" (to use a normal parlance), it could or would become a source of political control over the activities of the appointee by the appointer, and raise questions about true independence.

NOLLE PROSEQUI

Fourth, and supremely relevant, is the AG's power of NOLLE PROSEQUI - the enormous, discretionary power to file a formal entry in criminal proceedings, declaring that the "proceedings shall not continue" on some of the counts or some of the accused persons, or altogether. In Ghana, this power to halt trails is specifically provided for by section 54 of Act 30 which adds that the the AG may exercise this power "at any stage" of a criminal case.

In Republic v. Abrokwah [1989-90] 1 GLR 385, Abakah J said at page 389
that "the expression 'nolle prosequi' means to be unwilling to prosecute. It
is the State itself through the Attorney-General expressing unwillingness to prosecute the case." His Lordship stated at page 387 of the report that "It is common knowledge that the power of the Attorney-General to enter a 'nolle prosequi' at any stage of a trial before judgment or verdict cannot be questioned upon any basis other than political." He added, rather controversially, that "the point to appreciate is that whether the Attorney-General exercises this power after having had regard to the circumstances of a case or not or whether the Attorney-General exercises this power
properly or improperly is not a matter for judicial inquiry or review. It is a matter for the political powers that be, for the act of the Attorney-General in this respect is supposed to be the act of the State itself."

I use the words "rather controversially" because I do not believe that the power of
NOLLE PROSEQUI can any longer be said not to be subject to judicial review under our current constitutional dispensation. This is because of the Article 296 standards that are imposed upon the exercise of all statutory or constitutional discretionary powers. Surely, if an AG issues a NOLLE PROSEQUI in circumstances that breach the Article 296 standards (to wit., not fair, not candid or in breach of due process, or is arbitrary, capricious or biased) that exercise of discretion would be subject to judicial review under Article 295(8).

Be that as it may, the power of the AG to literally jump into a prosecution and halt it could and would be a major fetter to the ability of the proposed Special Prosecutor to operate independently under the current legal regime.

President Nana Akufo Addo

'FORMAL' VERSUS 'SUBSTANTIAL' INDEPENDENCE

It is for the above reasons that, absent a formal constitutional amendment, a new statutory regime may be required to achieve what is contained in the NPP Manifesto. The key question should be "how truly independent could or would this prosecutor be?

'At this time, under Article 88(J), the occupant of that office would remain accountable and answerable to the AG, at least on paper. The Constitution does not appear to me to anticipate a prosecutorial office with 'formal independence,' i.e. being inherently; completely autonomous, separate from and unconnected with the AG. The AG retains the ultimate responsibility for prosecutions, which responsibility would apply, arguably to a Special Prosecutor appointed under any statute. The Constitution does not appear to anticipate or permit full autonomy of criminal prosecutions from the Executive, yet.

However, I believe that 'substantial independence' involving the office and appointed person being impartial, neutral or unbiased is possible and constitutional. It is even perfectly within the power of the AG to scale back on the power to issue directions to the office or person. This would be a political position supported by Article 297(b), which provides that conferred powers (such as the power conferred under Article 88(3) and (4)) may be exercised "from time to time, as occasion requires."

Thus it is within the power of the AG, to decide that (s) he will not exercise (or would sparingly exercise) any overbearing, direct or even day-to-day control over the work of the prosecutor unless there is sufficient reason, cause or justification. I even believe that the AG could provide the circumstances under which any form of control would be exercised over the proposed office.

It is therefore my respectful view that we miss the point if we focus only on the 'formal independence' hurdle without considering the 'substantial independence' leeway and flexibility that could make this proposal workable.

CONCLUSION

To conclude, my respectful position is that although the desired and desirable complete independence may not be automatic under the current provisions of the Constitution, what we require now is the strong political will that allows the office holder sufficient liberty to work with little to no political or other interference. The office should function with sufficient latitude to operate and prosecute even members of the current government, if they fall foul of the law.

The success or otherwise of this project or experiment would go a long way to inform and influence the age-old and on-going debate (probably started in 1968 by the Akufo-Addo Constitutional Commission and definitely continued by the 1978 Mensah Constitutional Commission) on whether to separate the office of the Attorney-General from that of the Minister of Justice, or whether to create an independent office of a Prosecutor-General, or whether what is really required is to grant the Attorney-General himself or herself, independence from the Executive and the President in the exercise of all prosecutorial powers.

It is my personal and firm belief that we should amend the Constitution and take away the criminal prosecution function of the AG's office, and vest it in a separate, independent office of a Prosecutor-General. Until we achieve that, I certainly welcome the establishment of the office of "Special Prosecutor" with a specific mandate to work with the police and other statutory investigatory agencies such as EOCO, and prosecute public sector corruption and crimes committed under our procurement laws. All prosecutions would, of course, be in the name of the Republic, but at the suit of the Special Prosecutor, in accordance with Article 88(4).

Editorial

VERY SAD INDEED!

Reports that the house of former vice President, Paa Kwesi Amissah Arthur has been attacked by hoodlum must be extremely worrying for all who have any sense of decency.

Newspaper reports say that the hoodlums had been assigned to seize a land cruiser vehicle believed to be in the possession of the former Vice President.

After breaking into his house and causing considerable trauma for the household, no such vehicle was found.

Our question is, if the state has any reason to believe that the former Vice President is keeping a vehicle in his house without authority is this the very to handle the matter?

We getting increasingly worried about the activities of the vigilante groups which are terrorizing innocent citizens on account of the perception that they were in some way affiliated with the previous government.

It is time for the Police Service to take measures to protect all citizens from the terrorism being perpetrated by the vigilante groups.

Vladimir Putin and Squirrels: Masters of the Universe

President Vladimir Putin

By Graham Vanbergen

As far back as last year the Independent went with a story entitled Russian hackers tried to disrupt UK general election. It said that “Russian hackers tried to disrupt last year’s general election, in what is thought to be the first known cyberattack on the British political system. The group known as ‘Fancy Bears’ planned to target every Whitehall server, including the Home Office, Foreign Office and Ministry of Defence, and every major TV broadcaster, including the BBC, Channel 4 and Sky, but was thwarted by GCHQ.” Well done clever GCHQ!

It should be noted, according to wikipedia that “the Russian Bear is a widespread symbol (generally of a Eurasian brown bear) for Russia, used in cartoons, articles and dramatic plays since as early as the 16th century.” GCHQ are having us believe that a highly secretive and covert mission group operating in the dark web whose raison d’être is to cause political instability, and one has to say – achieve all this undetected, call themselves ‘Fancy Bear.’ How creative – no suspicion of Russian’s there then!

The Independent story, providing no evidence whatsoever, other than to say there was a “possible imminent threat” provided lots of links (to its own stories) that continued to provide no evidence of Russian hackers actively attacking Britain’s institutions. The article said “GCHQ had initially feared Isis’ hacking abilities had reached a new level of sophistication but the attack was eventually linked back to Moscow.” Without providing a single fact, the Independent must have vigorously interrogated the GCHQ spokesperson to the ends of the earth, and not just taken their word for it – obviously.

Apparently, the Russian hackers were posing as ISIS supporters, quite the opposite from what Russian diplomatic and military efforts have proven to be to date. Somehow we are to believe this made up poppycock from the MSM as real news.

The Daily Mail reported that “Labour MP Ben Bradshaw, a prominent Remain supporter, raised doubts about the validity of the EU referendum result last June as he warned that people were underestimating the extent of cyber-warfare by Vladimir Putin.” No evidence is provided by the politician but he gained considerable column inches in the press for saying so.

The Telegraph went with the story: “Systemic, relentless, predatory’ Russian cyber threat to US power grid exposed as malware found on major electricity company computer.” The paper quoted Peter Welch, a Vermont Democratic congressman. “They will hack everywhere, even Vermont, in pursuit of opportunities to disrupt our country.” This allegation is made the same day that 35 Russian diplomats and their families have been expelled from the USA.

This story was published in the Washington Post but was subsequently amended to read as follows:“Editor’s Note: An earlier version of this story incorrectly said that Russian hackers had penetrated the U.S. electric grid. Authorities say there is no indication of that so far. The computer at Burlington Electric that was hacked was not attached to the grid.” The only piece of information on this report to be truthful is the apology it was forced to print.

Let’s not forget that whilst hackers do present a real problem to the power grid of any country, squirrels do by far the most amount of damage. Let’s get really real about the problem.

The head of cyber-warfare at Squirrel HQ a Mr Chip Nibbles emailed Foreign Policy with the following warning:

“We are everywhere, and yet almost impossible to find. There are other events that have impacted critical infrastructure: a water pump failure in Illinois, power outages in Brazil, a pipeline explosion in Turkey, a cyberattack on a dam in New York; even a blast furnace in a German steel plant was supposedly put into an uncontrolled shutdown from a cyberattack. In each case, the initial cause for the failure was blamed on cyberattacks — but in each case, once the evidence was actually examined, hackers were nowhere to be found. Still, that lack of evidence hasn’t stopped the cyberwar hawks from pointing to these analog events as examples of the coming digital doom.”

The truth is, according to FP, squirrels actually cause over 1,400 outages affecting over 3.6 million people in the US alone each year. It works out to the entire population of the state of Connecticut, or the UK’s second and third city of Manchester and Birmingham combined losing electricity for more than two months. In fact, the covert activities of agent Nibbles & Co have hit the NASDAQ stock exchange twice, as well as the Large Hadron Collider in Geneva. In the US, they’ve also attacked 64 schools, 30 universities, 13 hospitals, six government buildings, four airports, two military bases and even caused seven confirmed deaths.

It is a known fact that squirrels cause dozens of outages every day in the US, impacting about 5,000 people for each episode for around two hours. Compare that with the number of outages caused by cyberattack, which in the United States and Britain is exactly… zero. To that end, statistically, you are more likely to be killed by Chip Nibbles than the death squads of Abu Bakr al-Baghdadi and his global network of ISIS lone-wolf cells lurking in your local post-office. Any mainstream media journalist worth his salt would have by now worked out that it is obvious that Chip Nibbles and his Red (furry) Army are Russian agents of espionage sent by Vlad the Bad to kill us all.

In the meantime, somehow Russian hackers managed to tilt the US election in favour of Donald Trump, that is, according to the losers … after they lost. Time magazine debunked that allegation by commenting that “Elections in the USA are decentralized, most voters will use paper ballots and voting machines aren’t connected to the internet.”

Here is an excerpt from a recent blog post from one of Britain’s ex-ambassadors Craig Murray on the same subject – “I find myself in the unusual position of having twice been in a position to know directly that governments were lying in globe-shaking events, firstly Iraqi WMD and now the Russian hacks. There could be no evidence because in reality these were leaks, not hacks. The (Obama) report is, frankly, a pile of complete and utter dross. To base grave accusations of election hacking on this report is ludicrous. Obama has been a severe disappointment to all progressive thinkers in virtually every possible way. He now goes out of power with absolutely no grace and in a storm of delusion and deceit. His purpose is apparently to weaken Trump politically, but to achieve that at the expense of heightening tensions with Russia to Cold War levels, is shameful. The very pettiness of Obama’s tongue out to Putin – minor sanctions and expelling some diplomatic families – itself shows that Obama is lying about the pretext. If he really believed that Russia had “hacked the election”, surely that would require a much less feeble response. By refusing to retaliate, Russia has shown the kind of polish that eludes Obama as he takes his empty charisma and presentational skills into a no doubt lucrative future in the private sector.”

If we are to believe the British and Amercian mainstream media, Vladimir Putin has changed the course of history by manipulating the entire American election process to its favour, caused Britain to leave the European Union, has the obvious proven ability to change the outcome of elections in France and Germany, thereby dismantling the EU, cause societal catastrophe by turning off the power and water anywhere at will, take down the western banking system and god knows, what else.

It is quite clear from what our leaders and the security agencies such as the FBI, MI5/6, NSA and GCHQ are saying, is that they do not have the technical expertise (in the West) to combat Vladimir Putin’s keyboard skills! Between Vlad and Chip, they have the West firmly boxed in – we’re done for. Or could much of what we read in the establishment press be fake news and propaganda; peddled by policy-makers, the security services, corporate threat reduction corporations and anyone else on the revolving doors bandwagon to keep us all in fear for our basic safety.

The original source of this article is TruePublica

Bashar Al Assad Still Stands, As Obama Leaves Office

Syrian President Bashar Al Assad

By Steven MacMillan

 “The future of Syria must be determined by its people, but President Bashar al-Assad is standing in their way. His calls for dialogue and reform have rung hollow while he is imprisoning, torturing and slaughtering his own people.  We have consistently said that President Assad must lead a democratic transition or get out of the way.  He has not led.  For the sake of the Syrian people, the time has come for President Assad to step aside” – Barack Obama, speaking in August 2011.

When the US President made his first explicit call for the removal of Bashar al-Assad from power in August 2011, who would have thought that the Syrian leader would have outlasted Barack Obama in office. Even for the most optimistic supporter of the territorial integrity of the Syrian state, there must have been moments when they felt that the US/NATO war machine would topple Assad and completely Balkanize the Syrian state (I know I did). And yet here we are, more than five years later, watching Obama conclude his shambolic reign with a final frenzy of anti-Russian attacks, as Assad still stands in Damascus.

Outside of any last gasp strike or invasion of Syria by the US or its allies, it seems that Assad’s presidency will outlast that of Obama’s. Despite all the media propaganda and demonization; the hordes of foreign mercenaries armed to the teeth by the US and their allies; the false flag attacks to justify a full-scale invasion of the country (the Ghouta sarin attack for instance); the sanctions against Assad and other high-level Syrian officials; and the countless other assaults on the country: the Syrian people refused to be bullied or swayed by outside powers.

Although the war is still ongoing and far from over, the recent liberation of eastern Aleppo by the Syrian Arab Army illustrates which side has the momentum in the conflict. The move led by Moscow to forge closer ties between Russia, Iran and Turkey in relation to Syria is also a significant development, considering the role that Turkey has played in supporting the opposition during the conflict. A Turkey that is committed to ending the conflict and stopping the flow of arms and mercenaries across the border is a major step towards the stabilization of Syria.

Obama vs. The US Military

The West has been unable to force Libyan-style regime change in Syria due to a variety of reasons, with the support of regional and international allies one of the most significant factors. Iran, Hezbollah, China and most notably Russia, have been crucial players in supporting the Syrian government, a fact that has been well documented in the media.  What has been less well documented however, is the role that certain elements within the US military have played in stopping the neoconservatives, the CIA and other factions close to Obama forcing regime change in Syria.

Despite many elements within the US military being far from perfect, there has been a core of high-ranking military officers who have resisted the Syrian strategy advocated by many in Washington. As the award-winning journalist, Seymour M. Hersh, wrote in his article for the London Review of Books in January 2016, titled: Military to Military, numerous individuals in the US military were concerned over the nature of many of the opposition groups that would have been empowered if Assad was ousted from power, and so they began to secretly share US intelligence with other militaries around the world, intelligence that was intended to help the Syrian military in their fight against extremists:

“In the autumn of 2013, they [(the Joint Chiefs)] decided to take steps against the extremists without going through political channels, by providing US intelligence to the militaries of other nations, on the understanding that it would be passed on to the Syrian army and used against the common enemy, Jabhat al-Nusra and Islamic State.”

One of the individuals in the US military that has been a vocal critic of Obama’s Syrian strategy is the former Director of the Defense Intelligence Agency (DIA), retired Lieutenant General Michael T. Flynn. The former DIA head has been consistently warning over the dangers of overthrowing Assad, and in 2015 he lambasted the Obama administration for taking the “willful decision” to support the rise of extremists in Syria. Flynn, who has been appointed as Trump’s National Security Adviser, is well aware of the situation on the ground in Syria, with an August 2012 intelligence document from the DIA stating that:

“The Salafists, the Muslim Brotherhood and Al-Qaeda in Iraq, are the major forces driving the insurgency in Syria… Opposition forces are trying to control the Eastern areas (Hasaka and Der Zor), adjacent to the Western Iraqi provinces (Mosul and Anbar), in addition to neighbouring Turkish borders. Western countries, the Gulf states and Turkey are supporting these efforts… If the situation unravels there is the possibility of establishing a declared or undeclared Salafist principality in Eastern Syria (Hasaka and Der Zor), and this is exactly what the supporting powers to the opposition want, in order to isolate the Syrian regime, which is considered the strategic depth of the Shia expansion (Iraq and Iran).”

Flynn was not alone in opposing the Syrian policy of the Obama administration however, although he was perhaps the most vocal in public. Retired General Martin Dempsey for instance, who served as the Chairman of the Joint Chiefs of Staff between October 2011 and September 2015, was fairly consistent at emphasising the costs of military action in Syria, including during the debate over whether to directly strike Syria after the Ghouta chemical attack in August 2013. Dempsey’s general position on using overt military force in Syria against Assad can be seen in a July 2013 letter to the Chairman of the Committee on Armed Services, Senator Carl Levin. The overall tone of the letter is cautious and thoughtful, with Dempsey warning that the US “could inadvertently empower extremists” by ousting Assad:

“It is not enough to simply alter the balance of military power without careful consideration of what is necessary in order to preserve a functioning state. We must anticipate and be prepared for the unintended consequences of our action. Should the regime’s institutions collapse in the absence of a viable opposition, we could inadvertently empower extremists or unleash the very chemical weapons we seek to control… Once we take action, we should be prepared for what comes next. Deeper involvement is hard to avoid. We should also act in accordance with the law.”

If Obama had got his wish in 2011, and Assad was removed from power in Damascus, the political vacuum left by Assad would have been filled by a plethora of ‘moderate rebels’ (i.e. hardcore terrorists). After eight years of carnage and broken promises, many people in the US and around the world will be delighted to see Obama leave office.

Steven MacMillan is an independent writer, researcher, geopolitical analyst and editor of  The Analyst Report, especially for the online magazine “New Eastern Outlook”.

CIA RELEASES SECRET DOCUMENTS

Operatives of the CIA

The CIA has published online nearly 13 million pages of declassified records, including papers on the US role in overthrowing foreign governments and the secret ‘Star Gate’ telepathy project.

The range of documents, known as the CREST (CIA Records Search Tool) database, covers an array of materials related to the Vietnam War, Korean War and Cold War. One example is data on the Berlin tunnel project (code-named Operation Gold), which was a joint CIA and British intelligence scheme to carry out surveillance on the Soviet Army HQ in Berlin during the 1950s.

In all, more than 12 million documents are accessible, covering the history of the CIA from its creation in the 1940s up to the 1990s – with intelligence officials giving assurances that the half-century of data is in its entirety, with nothing removed.

"None of this is cherry-picked," CIA spokesperson Heather Fritz Horniak told CNN. "It's the full history. It's good and bads."

For instance, details are provided on the CIA’s participation in the 1973 coup in Chile which saw the rise of the Pinochet regime, as well as on the infamous MK-Ultra project, dubbed the CIA mind control program, which involved experiments – some of them illegal – on human subjects, to develop drugs and procedures for interrogation and torture.

It’s now a couple of decades since the documents were actually declassified, though. The cache was ordered to be released by then-President Bill Clinton in 1995. The papers have been accessible since 2000, but only on four computer terminals at the National Archives in College Park, Maryland.

"Access to this historically significant collection is no longer limited by geography," Joseph Lambert, the CIA's information management director, said in a press release.

Over the decades about 1.1 million pages from the database were printed out by historians and journalists, but the CIA banned the actual materials from publication.

“Declassifying all the documents in the world doesn’t accomplish anything if people can’t get access to them,” Steve Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, told BuzzFeed.

The inability to access the database online prompted outrage, and in 2014, MuckRock, a non-profit news organization, filed a Freedom of Information Act to gain access to the documents, but the CIA said it would take at least six years to release the papers. Journalists and researchers then launched a popular Kickstarter campaign to digitize the documents, collecting over $15,000 – surpassing the stated crowdfunding goal and posting some of the papers online.

The CIA made small redactions to the documents, but solely to protect sources and methods that could damage national security, CIA spokesperson Horniak said.

The agency was aiming to publish the documents by the end of 2017, but finished the work ahead of schedule.

“We’ve been working on this for a very long time and this is one of the things I wanted to make sure got done before I left. Now you can access it from the comfort of your own home,” said outgoing CIA director of information Lambert.

The agency continues to review documents for declassification, so the treasure trove has not been unearthed in full, and there’s definitely more to follow.

The History of the CIA

Review of Douglas Valentine's Book

By Dr. P. Wilkinson

When I began reading the work of Douglas Valentine about six years ago, I had not read his books, only the articles that the US online journal Counterpunch had published. In fact I only began reading Counterpunch because of the accident of having been introduced to the two original editors of what was then only a printed newsletter. Later I was even able to publish a few pieces in that journal before its more famous founding editor’s demise. Why do I preface a book review with such personal observations? To that question I will return later.

After reading numerous articles I went to Douglas Valentine’s website and as I frequently do—even today—I asked him questions about things he had written. This began a conversation that has continued. Of course I could not hope to conduct a serious conversation with someone about their ideas without having read what they had already committed to paper. Hence I began with The Phoenix Program (1990). I then read both of his books on the US government’s drug organisations and was pleased to review them online. When Open Roads, under the direction of Mark Crispin Miller, re-published The Phoenix Program as the first in its e-book series “Forbidden Books”, I had the opportunity to review it as well. In other words although I have only known Douglas Valentine for a few years, I believe I am very well acquainted not only with his writing but I also know what makes it unique in the landscape.

His latest book, The CIA as organised crime, is not new. Nor is it intended to be. This book attempts something very difficult: compressing the essentials of nearly 30 years of intensive research, insight and implicit social theory into a volume accessible to readers with rapidly deteriorating attention spans who have been conditioned to what I would call “journalism as pornography” (I will return to that too.) Before I explain what I mean, permit me to briefly explain the structure of the book.

After introducing the reader to the “luck” he had in gaining access to the sources which made the book possible, Valentine presents revised interviews that explain the core information in The Phoenix Program (Part I) and the two-volume “Wolf/ Pack” study of US drug law enforcement (Part II). Then in part III he uses previous interviews and articles to explain the interrelationships between the CIA business and the DEA business and how they led to the Homeland Security business. Part IV is devoted to the various ways in which everything known from parts I – III are ignored, trivialised, distorted or censored so that such knowledge has virtually no impact in public consciousness. Here there might be a certain detectable irony since Valentine writes a book that concludes by saying that the means for acting on the information presented is already precluded—pre-empted rather than prohibited.

The book’s principle subject is the Central Intelligence Agency. For the historically challenged it may be useful to recall that the Central Intelligence Agency is an organisation of the US regime created by the National Security Act of 1947. Most history books will tell an average US citizen (or someone schooled with US curricular materials) that the act adopted by the US Congress on 29 July of that year was designed to consolidate the several branches of the military under a Department of Defence, for budgetary reasons, to restrain historic inter-service rivalries, and to create a more modern and efficient armed forces.

What is not said is that in 1945, the US government had demobilised its military and having emerged from the Second World War unscathed was trying to determine how to save its economy from a return to the pre-war depression. The intellectual elite of the US regime has already begun to warn that both domestic stability and US dominance in the world would be jeopardised if the regime did not maintain at least the level of armaments expenditure required during the war that had just ended. However there was no publicly defensible reason for permanent wartime footing. There were no more Native Americans to annihilate; despite the abolition of slavery Negroes were still well under control. The only country even approaching the US in military strength—the USSR—had been so devastated by the war that it would be decades before it could pose a genuine competitive threat. In other words, having pacified the world with atomic weapons and the blood of 30 million Soviet citizens, the US elite had no honest justification for the policy they were about to undertake.

The National Security Act of 1947 created the National Security Council, the Central Intelligence Agency, and what was first called the “National Military Establishment”—later renamed the Department of Defence. Given the fact that the international criminal court constituted to try war crimes in Nuremberg proclaimed the commencement of a war of aggression to be the ultimate war crime under international law, it ought to be clear that the legislation passed by the Congress in July of 1947 was tantamount to the establishment of a permanently organised war crimes establishment in the United States of America. The creation of the three executive instruments by which the US corporate elite in Congress assembled delegated the powers to declare war under their own charter (aka US Constitution) made the entire US regime an organised criminal conspiracy because the permanent state of war thus created in and of itself was an act of aggression in the very form condemned at Nuremberg—and for which those not particularly favoured by that regime were hanged or imprisoned.

It is within this legislatively mandated criminal enterprise that one has to understand the origins, purpose and function of the Central Intelligence Agency. The 1947 legislation chartered the CIA as an instrument of the National Security Council. On the tacit assumption that the US regime is in a permanent state of war—despite occasional suggestions to the contrary—the National Security Council constitutes something like a permanent war cabinet. The war cabinet has its weapons of mass destruction (the armed forces) but because this “cabinet” is composed of bureaucrats, academics, professional politicians, businessmen and assorted charlatans in the train of the reigning president there is need for an espionage organisation which in theory tells these ministers when, where and how to wage war most advantageously. That is the official reason why the criminal cabinet needs spies. According to the Act:

(d) For the purpose of coordinating (subordinating) the intelligence activities (spying) of the several Government departments and agencies in the interest of national security (waging war), it shall be the duty of the Agency, under the direction of the National Security Council (permanent war cabinet)—

(1) To advise the National Security Council in matters concerning such intelligence activities (spying) of the Government departments and agencies as relate to national security (waging war);

(2) To make recommendations to the National Security Council for the coordination (subordination) of such intelligence activities (spying) of the departments and agencies of the Government as relate to the national security (waging war);

The ostensible function described is that of a consultancy, an almost academic organisation. However there are some other duties specified in the Act.

(3) To correlate and evaluate intelligence relating to the national security (waging war), and provide for the appropriate dissemination (helping other government spies) of such intelligence within the Government using where appropriate existing agencies and facilities: PROVIDED, That the Agency shall have no police, subpoena, law-enforcement powers, or internal-security functions (This would be called a non-competition clause in commercial law. It was adopted to protect the right of the FBI and other domestic instruments of state terror from encroachments by the federal agency.): PROVIDED FURTHER, That the departments and other agencies of the Government shall continue to collect, evaluate, correlate, and disseminate departmental intelligence (no spying monopoly): AND PROVIDED FURTHER, That the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure (preventing the public or victims of spying from defending themselves);

(4) To perform, for the benefit of the existing intelligence agencies (all the military spies, police spies, and implicitly sanctioned corporate spying organisations), such additional services of common concern as the National Security Council determines can be more efficiently accomplished centrally (any other criminal activity for which the Agency is better equipped or has more benefit);

(5) To perform such other functions and duties related to intelligence (covert action) affecting the national security (waging of war) as the National Security Council may from time to time direct.

The conspicuous crime for which the Central Intelligence Agency was created was spying, an offence punishable under Title 18 of the United States Code which incorporates the provisions of the 1917 Espionage Act. Of course one could argue that it is not a crime to spy on the enemy when at war.

However officially at least the US has not been at war since 1945—at least not within the conventional interpretation of the war powers in the US Constitution, i.e. a resolution adopted by the US Congress declaring a state of war between the US and another country.  But even allowing executive liberty with the definition of a “state of war”, the Espionage Act also makes it a crime to spy on the “friends” of the United States—which of course has been standard operating procedure since the CIA was founded.

However the creation of the Central Intelligence Agency has another history, its genealogy. The CIA claims two inspirational heroes: Nathan Hale and William “Wild Bill” Donovan. Nathan Hale is heralded as the first or at least most famous colonial spy to be hanged by the British Army during the American War of Independence.Surely a bit of folklore, he was to have said before the noose did its work that he only regretted “that I have but one life to lose for my country”. William Donovan was a white shoe lawyer who persuaded US President Franklin Roosevelt to authorise the founding of the Office of Strategic Services (OSS) from whose ranks many of the most renowned CIA executive management came.Nathan Hale’s place in the CIA pantheon is certainly no more than the vanity of its white elite founders. William Donovan is far closer to the true tradition from which the CIA arose.

Repeatedly CIA cadres make reference to the OSS as if it were the core of its “regimental history”. The myth intended is that the Office of Strategic Services was created in wartime (the last time the US was officially at war) and all those boys who joined the OSS were heroic soldiers fighting more or less covertly in the “good war”. Thus the CIA is the descendant of that band of heroic elite soldiers and patriots who quietly served their country under conditions that at least theoretically could lead them to share the fate of Nathan Hale. The truth however is quite different. William Donovan’s qualifications for the OSS were not his Medal of Honor awarded in the Great War but his political connections in New York. These political connections and his success as a lawyer enabled him to overcome the WASP barriers, which an Irish Catholic would generally face until one John Kennedy was elected for a visit to the White House.

Donovan was not only a lawyer and politician in Roosevelt’s home state, he was part of that community of corporate law firms whose specialties included organising covert action to defend US corporations abroad. Probably the most notorious in this league of private mercenary law firms was Sullivan & Cromwell—the firm in which John Foster Dulles and Allen Dulles were partners.Prior to the creation of the CIA, there were law firms like Sullivan & Cromwell and the US Marines. After 1945, gentlemen like the Dulles brothers agreed that while it was not always opportune or good marketing to send the Marines, it was also very risky for US corporations and their law firms to intervene in foreign countries as they had done routinely prior to the Second World War.

There was a need for protecting corporations from the very real risks of de-colonisation and economic nationalism, which unfortunately had been given new impetus by colonised peoples who took the UN Charter seriously. Not only was it recognised by this segment of the US elite that a permanent war economy was essential for continued wealth accumulation and domestic peace but lip service had to be paid to the ideals of the UN Charter and the United Nations organisations (esp. since the admission of non-whites was inevitable).

The inspiration for the CIA came from precisely this class of white—mainly Protestant—descendants of the New England theocrats and Yankee slave traders whose entire identity was based on white supremacy and capitalism—both as a religious ideal and an enrichment strategy. It is one of the legacies of the US Civil War that overt violence, i.e. the armed forces, is dominated by the elites of the South while covert violence, i.e. finance and the secret police, is primarily managed by the elites of the North. So while 1945 brought the defeat of Ford’s, Bush’s and Dulles’ friends in Berlin and the disappointment of Soviet victory, there was still potential to exploit racism and domestic fears to create the illusions needed for a permanent war economy with all the trappings of a wartime police state.

This could not be done overtly because it could jeopardise markets in countries where US corporations hoped to replace European colonial competitors. There was also a domestic threat to be suppressed. After four years of telling US citizens that they were defending democracy and self-determination and opposing racism (although that actually was not a part of the WWII myth in the US until the 1970s), it was necessary to teach US corporate vassals (dictators) to at least walk and talk like US politicians. There had to be alternatives to the tried and true method of sending the Marines when the leaders in a foreign capital misbehaved. The people of “Wild Bill” Donovan’s class knew the methodology and understood the problem—but what they now needed was “official cover”. Nobody would believe—either in the UN General Assembly or any other public forum—that United Fruit supported or opposed governments based on democratic convictions. On the other hand, no one could (would dare) challenge the actions of the US government abroad to assist a government it declared to be democratic. Moreover if United Fruit broke the law, the local government could punish it, even by expropriation. But no local government would dare take such action against the United States itself—that could mean even war.

Hence the CIA was invented in the National Security Act not simply as an advisory and coordinating instrument for spying but as a criminal organisation to cover for the fundamental criminal activity of US corporations and those who own them. It was invented by those whose primary qualification for “government service” was their experience as mercenaries or mercenary managers for the corporations and wealthy families that own the United States government. Its leadership and cadre were and are drawn from the “families” who historically either own or defend the wealth concentrated in the US upper class. They are the essence of “organised crime”.

That brings me back to Valentine’s book: The CIA as organised crime. The subtitle of the book is “How illegal operations corrupt America and the World”. The title is fashioned like those of many typical exposés or what some might call “muckraking” journalism. If this title gets more readers than the means justifies the end. Yet I think the title is in fact a juxtaposition of two contrary perspectives of his subject. For Valentine’s book to be an exposé it would have to reveal something previously hidden. In fact Valentine concludes his book with the entirely justifiable assertion that what he has described is in fact in plain sight—not hidden at all. A “muckraking” story would take an otherwise tidy state of affairs and show that “beneath it all” it is really very ugly and dirty. However, no later than the Church and Pike Committee investigations of the 1970s and the Iran-Contra hearings of the late 1980s, it has been a matter of official record that the Central Intelligence Agency organises and perpetrates crimes as a matter of policy and that it does so with virtual impunity—in the interests of “national security” (waging war). So is Valentine’s book a revelation about the CIA?

No. Nor do I believe that he intended it to be.

The most important part of the book is in fact part IV: Manufacturing Complicity: Shaping the American Worldview. I see it as an act of self-defence that this part is not overtly the central part of the book. With respect for that I would like to point out why this self-defence is by no means trivial and at the same time I would like to take the risk or the liberty of elaborating why I believe self-defence is appropriate.

Valentine’s most important observations about the nature and structure of CIA action are:

1.   The CIA is a class-based organisation. Its membership and its mission are dedicated to defending the dominance of the predominantly US corporate elite, based on the ideology of capitalism and white supremacy.

2.   The CIA limits its scope of action to the extent that such action may be plausibly denied and is of benefit to its clients.

3.   The CIA does not recognise any barriers to action except those imposed by its clients or by the force of its opponents—i.e. it is beyond what most of us call the law. This does not mean that it is omnipotent.

4.   The CIA relies for much if not all of its tacit support upon the willing collaboration of the Establishment and the Counter-Establishment in all its forms and factions. The means for maintaining this collaboration are mastery of language and propaganda and an enormous capacity to reward support (witting or unwitting) and punish opposition.

5.   All of the above are attainable because of the degree of organisation and organisational discipline: class-based, bureaucratic and military in nature.

The CIA as organised crime is a compilation of examples drawn from his detailed case studies. It should motivate the reader to go back and read The Phoenix Program, The Strength of the Wolf and The Strength of the Pack. If this happens then the book will have been a success. If the reader is waiting for a daring revelation, he may be disappointed. Valentine does not trade in sensationalism. He is not a muckraker either. That is apparent from careful reading of the first two introductory chapters. On the contrary Douglas Valentine has written books, which prove that there are no real secrets for people who bother to ask the right questions and who listen to or read carefully the answers. The CIA as organized crime is another such book.

Here the reader of this review might object that of course there were secrets: the Phoenix Program was a secret. Without “Freedom of Information Act” (FOIA) searches and a lucky access to high-ranking CIA officials Valentine would never have discovered the truth, which was hidden from us all. Of course there are secrets. And of course it is the free press and heroic journalists like Seymour Hersh or Glen Greenwald and whistle-blowers like Daniel Ellsberg and Edward Snowden (the list of journalists or “whistle-blowers” is by no means inclusive) that make sure that no matter how dreadful the people in Langley are, the truth will be discovered.

I think here it is important to distinguish between critical research published by a writer in periodical literature (journals) and journalistic pornography. The exposé is not accidentally connotative of striptease. As everyone knows who has at least thought about it, if not actually attended, the point of striptease is not the final nudity but the gradual and redundant suggestion of nudity. Pornography is literally not the graphic depiction of sexual acts but the graphic depiction of the activity of prostitutes. In this sense while it is conventional to identify prostitutes with those engaged in sex for remuneration, the reluctance to call people whose marriages result in monetary gain prostitutes has shifted the emphasis away from mere sex for money. This has given rise to such neologisms as “presstitute”—a journalist who prostitutes him or herself in his profession. The term “yellow journalism” was given to types of writing in the last century considered egregiously biased and aggressive. The tendency is to identify this kind of journalism with the “tabloids” or “boulevard press”.

The US journalist I.F. Stone, beatified in the US by many who call themselves “liberal” or “left”, knew that propaganda and “yellow journalism” was not a market cornered by the tabloids. His Hidden History of the Korean War is full of examples to show how the war in Korea was not reported, ill reported, or falsely reported by the so-called “quality press”. Douglas McArthur was just as successful at manipulating the Press as the generals and admirals that came after him. The collaboration of the media during the war against Korea was so effective that even forty years later, a documentary film about the war produced in the UK was censored in the US as a precondition to its being aired at all.

Those of us old enough to remember Morley Safer reporting from Vietnam on CBS might wonder at the story he told in 2010 to a select gathering of journalist veterans of that war about his relationship with then CIA station chief William Colby.Seymour Hersh is regularly trotted out by S.I. Newhouse’s New Yorker magazine as a critical journalist—also a Vietnam “veteran”. Hersh is given credit for bringing the My Lai massacre to the attention of the US public—an event Colin Powell did his best to help conceal while he was stationed in Vietnam. But Hersh did not make a name for reporting about the Phoenix Program (just as Morley Safer did not). The Vietnamese knew about Phoenix and they knew what kind of operation Lt. Calley was leading. Yet at no time during the trial of Calley was there ever any mention of the CIA or the campaign against the VCI of which Calley was just one tiny part. Instead we were all fed with nightly stories about how bad the war was and under what duress a young lieutenant was serving his country—that regrettable and even condemnable his acts may be but they were mere incidents of war. In fact Calley was acting in compliance with standard operating procedures and official policy of the CIA whose war Vietnam was.

The purpose of our press corps was and is to serve as part of the combined weapons deployed against the civilian population, esp. those in the “homeland” who have to be persuaded daily of the morality violated every day. On the one hand the population must be constantly reassured that that old disgusting Puritan morality remains the foundation of US society. On the other hand the prurient interest in breaches of that morality must be satisfied. Hence US Americans relish the hymns of praise for their Press that come from invidious comparisons with the media in the rest of the world (esp. the Soviet Union/ Russia). They need the titillation that comes from being told occasionally that elected officials patronise brothels, judges receive bribes and non-whites in foreign lands are tortured and assassinated. Even the most obscene acts perpetrated by CIA officers or their comrades in other branches of the State apparatus become delectable if served by those whose reporting respects the aesthetic dogma.

Bernardo Bertolucci directed a film Last Tango in Paris with Marlon Brando and Maria Schneider. A number of recent articles about the film focus on the non-consensual use of butter as a lubricant for the illusion of an anal sex rape scene. The film was rated as practically pornographic when it was released in the 1972. When I saw the film I was surprised that so much was written about the explicit sex. For me there was only one serious message in the film and it was very clearly articulated—regardless of whatever artistic pretensions Bertolucci may have intended. For the greater part of the film the characters played by Brando and Schneider meet and have unrestricted sex in an otherwise vacant Paris flat. The only rule throughout is that no names are to be asked or given.

As the film draws to a close this rule is breached and Schneider’s character is given a name for the man with whom she has had sex for such a long period. Shortly thereafter she borrows a pistol, meets the man in the flat and kills him. The moral of the story is simple. As long as we cannot name something that is bothering us, we have an enormous if not insurmountable impediment to action. The capacity for titillation, for erotic stimulation even with simultaneous pain, is enhanced by suspension of belief or cognition. This is what pornography does and it is also the function of compatible journalism.

The compatible Left enjoys journalistic pornography.Like sex pornography there are also different classes or grades of journalistic pornography, sensationalism, voyeurism, exposés, so-called “inside reports”. The quality usually depends on who is funding it and what audience is targeted. The main thing is that it is either exciting or something good for fund-raising, although sometimes it is enough to be good gossip. In other words, plot and character development or accurate dialogue are unimportant in comparison to that orgasm inducing “revelation”—an erection out of context. “Did you see that?” or “Did you hear that?” ejaculates from the stimulated consumer. Moreover the compatible Left believes just as strongly in American “exceptionalism” as the Establishment. The counter-establishment claims to be a victim of Establishment mistakes. The blind support given to Barack Obama derives in large part from the embarrassment felt that George W. Bush made people dislike the United States—not that people could dislike the policies and actions of the United States—not that people could object to the permanent war crimes establishment in Washington and New York.

To go beyond ejaculations—or even to dispense with them—one has to be willing to concentrate on the whole story, not just what appeared in today’s broadcasts or papers but what happened before that? Where did all that happen? Who are the people involved and with whom are they involved? These are the details of chronology, geography and genealogy.

History occurs in a context not of minutes but years, decades, even centuries. When angry Iranians seized the US embassy in Teheran in the wake of their revolution, none of the respectable media explained that the Shah had been installed by the CIA in 1954 or that US spies were still operating out of the US embassy when the seizure occurred. Even a media outlet generally assigned to the US Left produced a report on the anniversary of the Iranian revolution that omitted information it had reported at the time of the embassy seizure. Zbigniew Brzezinski’s creation of what are now called the Taliban, under President Jimmy Carter, to wage war against the Soviet Union is another fact conveniently omitted when deceptively comparing the Soviet Union’s war in Afghanistan with the US war against Vietnam.It is important to follow the timeline in its entirety, not just the segment served in the news bulletin.

When people in the US who do not know where the state of West Virginia is located are called “geographically challenged”, then it is all the more apparent that checking a map is a good thing to do before believing anything reported about a foreign place (meaning also any place one has never visited).

The Phoenix Program was developed by people who came from very specific professional backgrounds and biographies. When the program was up and running, the US Foreign Service was training whole classes of its employees to become Phoenix advisers in Vietnam. People like Richard Holbrooke and John Negroponte were working in rural pacification in Vietnam as 20-year-olds.Even if were it credible that the Phoenix Program was “terminated” when the US withdrew from Vietnam, there is an entire generation of cadre in the Foreign Service and military who began their careers learning how to manage the kidnapping, torture and assassination of unarmed civilians. Are these the people you would expect to run a proper democracy? Given that untold numbers of ex-servicemen join the police forces, one should not be surprised at how comfortable they feel in Ferguson, Los Angeles, Oakland, New York, Chicago, and New Orleans when they get to use military grade equipment.

There is nothing titillating about the routines of Homeland Security or the organisation of the US gulag. People like Jeremy Scahill do not need to masturbate in Iraq to find assassinations.They are the bread and butter business of the police and drug enforcement offices in every major US city. And torture—well that is celebrated in the endless hours of cop shows that even people beyond the US borders have to endure as standard TV and cinema fare.

I began this review with some personal observations—how I came to read and later to review the work of Douglas Valentine. Over the course of the past six years I have observed what I consider to be a steadily diminishing willingness to see the obvious and draw at least more obvious conclusions from those observations. Instead there has been an unceasing proliferation of opinion and chatter pretending to be debate. The US comedian Stephen Colbert used to parody this condition by portraying a person who always said in essence “truth for me is what I feel is true without any regard for the facts, or even despite them”. Unfortunately by the time the last editions of the Colbert Report were aired on Comedy Central, it was impossible to see the parody any more. There are innumerable examples of distortion in the public sphere—the substitution of spectacle for substance. Colbert never claimed to be a journalist but there are innumerable journalists who are in fact indistinguishable from their comedian imitators. A page from my grade school speller contained the aphorism “It is easier to be critical than correct.” It is easier to be a celebrity than a person with conviction.

The CIA as organized crime is not a book of opinion. Although there are interviews these were not for talk shows. The interview format—even with critical and informed interviewers—is problematic because of the need to make a dialogue out of material that requires individual intensity and focussed attention. Since Valentine is an experienced interviewer (as anyone can establish by listening to his Phoenix tapes), he makes the best out of a restrictive format. In doing so he does not tell us so much about asking questions as how we must learn to work with answers. Valentine’s book is also an exercise in giving critical questions, esp. from those who are less knowledgeable or experienced, the serious answers they deserve. That is one very important approach in teaching history, to restoring substance. Valentine is an excellent history teacher and there are simply not enough like him.

The original source of this article is Global Research