How John Brennan and Barack Obama Became the Extra-Judicial Deadly Gods of a Covert War.
By Tim Connor
On Thursday of this week, the Senate Intelligence Committee is scheduled to take up the appointment of John Brennan to be the new director of the Central Intelligence Agency. When that happens it should be—no, must be—the place where Congress finally begins to get a foothold to end one of the most disturbing abuses of power in American history.
I’m referring to the perniciously secret and secretly circuitous process by which President Obama and John Brennan have reserved to themselves the right to kill people in the name of national defense and counter-terrorism. They do this almost entirely with aerial drones—there have been hundreds of airstrikes from drones since Obama took office, and 4,700 resulting deaths. Among those targeted for death by drone strike was an American citizen, Anwar al-Awlaki, who was killed in a drone strike in Yemen in 2011. Two weeks later his 16 year-old son, Abdulrahman al-Awlaki, born in Colorado, was killed in another drone strike.
In many respects Yemen has become the test plot for the ultra-secret drone project, sometimes with utterly disastrous results. Indeed, when Obama ordered the first drone strike in Yemen in December 2009, the pilotless aircraft attacked a Bedouin village that had been mistakenly identified as a terrorist training camp. The missiles killed more than 50 people, most of whom were women and children.
Then there’s the episode reported in this morning’s New York Times from last August. A 40 year-old cleric by the name of Salem Ahmed bin Ali Jaber gave a speech at a village mosque in eastern Yemen denouncing Al Qaeda. Two days later, the well-respected, courageous cleric and his cousin agreed to meet with three visitors from Al Qaeda. As the five argued, the Times reports, “a volley of American missiles shot down from the night sky and incinerated them all, along with a camel that was tied up nearby.”
“I can find no way around the thicket of laws and precedents that effectively allow the executive branch to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusions a secret.” — Federal District Court Judge Colleen McMahon in a ruling last month.
There hasn’t been much of an argument in the United States about the drone wars. Republicans coming off the “Dark Side” policies advanced by former Vice President Dick Cheney during the Bush years seem reaffirmed that Obama has been so aggressive in hunting down alleged terrorists. Democrats, for the most part, seem reluctant to criticize a leader of their party who through his ruthlessness has muted, if not stolen, the traditional Republican political advantage on national security issues. As I’ll get to in a minute, that’s not uniformly true, but true enough that this deeply disturbing power grab by Obama was off the table for debate during the 2012 elections.
There are lots of reasons to be deeply concerned, if not outraged, about the drone program, but a fundamental reason is the appalling lack of a public legal justification, particularly when it comes to the targeting of U.S. citizens.
You’d like to think that a U.S. policy that targets people individually for death has a sound legal mooring in international law and, where U.S. citizens are involved, constitutional due process. But it doesn’t. It wasn’t until last spring that the Obama Administration even admitted that the drone strikes were occurring.
The belated admission that the drone program exists came first from John Brennan. Brennan was the Deputy Executive Director of the CIA under George W. Bush. Although he was Obama’s first choice for CIA director, questions about his role in the Bush-era torture policies derailed his nomination. Obama then appointed him to be the White House Counter-terrorism director, a post which does not require Senate confirmation. When he announced the existence of the drone program, Brennan said the targeted killings were being conducted “in full accordance with the law.”
Understandably, some people want to see the math, so-to-speak, to actually see the actual legal arguments being used inside the foggy reaches of the Obama Administration to justify the program.
The answer has been that we don’t get to see those legal opinions. In essence, the secrecy over the very existence of the drone program has been re-positioned to guard the secrecy of a lengthy legal analysis worked up by the Justice Department’s Office of Legal Counsel.
What we know about that legal analysis comes via the work of Pulitzer Prize-winning reporter Charlie Savage who now works for the New York Times. Savage earned his Pulitzer while at the Boston Globe in 2007, with a brilliant series of stories on the national security power grabs of the Bush Administration. Now, he and his colleagues at the Times are digging into the drone program with the same vigor that Savage brought to his examination of the Bush Administration’s notorious counter-terrorism policies.
After learning about the Justice Department legal analysis, Savage and his colleague Scott Shane filed a Freedom of Information Act (FOIA) request to obtain it. So did the American Civil Liberties Union (ACLU).
A month ago, on January 2nd Federal District Court Judge Colleen McMahon ruled in the government’s favor, saying it was beyond the power of her court to rule that the memo was improperly classified as secret. This was a peculiar ruling in that Judge McMahon didn’t actually review the secret memo. But what was also extraordinary about the ruling is the judge’s utter exasperation with the government.
“I can find no way around the thicket of laws and precedents that effectively allow the executive branch to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusions a secret,” she wrote.
To which she added: “The Alice-in-Wonderland nature of this pronouncement is not lost on me.”
The Times and the ACLU are appealing the decision. I’m guessing Judge McMahon would join in the appeal if she could.
What’s at issue here is the paramount power that any nation state can wield, the power to selectively kill someone. The U.S. has an executive order the prohibits the government from conducting assassinations. Closer to home, so to speak, there are bulwark constitutional protections to ensure that Americans receive due process of law before their liberty, or their pulse, is removed from them.
Wouldn’t you want to know how the Justice Department justifies a targeted killing policy within those formidable restraints? Well, you can’t know, because the Obama Administration insists that its legal rationale for a policy that justifies crossing all sorts of borders to kill people, even Americans, is a national secret.
We have little more insight into this abuse of power this week thanks to NBC investigative reporter Michael Isikoff who obtained a leaked copy of a 16 page Department of Justice white paper. The undated white paper evidently reflects the legal rationale contained in the still secret memo sought by the Times and the ACLU. The white paper explains its purpose as setting forth “a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader actively engaged in planning operations to kill Americans.”
Among the conspicuous phrases in the document is that it “does not attempt to determine the minimum requirements necessary to render such an operation lawful” meaning that the drafters of the white paper aren’t going to say where the line is in terms of when it is okay (or not okay) to pull the drone trigger on a U.S. citizen.
The paper’s conclusions are that a U.S. citizen who takes up arms against the U.S. doesn’t lose his or her due process and other constitutional rights. It’s just that those rights are overridden by the interests of the government in “forestalling the threat of violence and death to other Americans.”
It’s not that the white paper denies that “an individual’s interest in avoiding erroneous deprivation of his life” is compelling. The individual’s interest in not being “erroneously” identified as posing an “imminent” threat to other Americans has to be accounted for by some sort of process. It’s just that “the realities” of the war on terror require that the accounting be done by “an informed, high-level official of the U.S. government” who gets to determine whether the individual “poses an imminent threat of violent attack against the United States.”
And what could go wrong with that? Well, for starters, even if we accept for the sake of argument that Anwar al-Awlaki was a senior operational leader for Al Qaeda, was that justification for the second attack, several days later, that killed his 16 year-old American-born son?
How to define “imminent?” According to the white paper imminent doesn’t really have to be imminent in the dictionary definition of imminent. In this shadow world it means that the person to be killed is deemed to have been recently involved “in activities posing an imminent threat…and there is no evidence suggesting he has renounced or abandoned such activities.”
It isn’t much a stretch to see how that could be applied to almost anybody who is known, or thought, to associate with an Al Qaeda leader. Do we really expect that a disillusioned Al Qaeda supporter is going to publicly renounce Al Qaeda and announce that he has abandoned “such activities?” We see how this can work in the real world with the death of the brave Yemeni cleric who stood up to Al Qaeda, but then agreed to meet with Al Qaeda members to discuss his objections to the terrorists.
He was obliterated in a missile strike.
You’d like to think that a U.S. policy that targets people individually for death has a sound legal mooring in international law and, where U.S. citizens are involved, constitutional due process. But it doesn’t.
Then there’s this: “(T)he Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations.” And, besides, if a court were to intervene with an order, “judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force.” In other words, it’s just impractical for there to be any check on the death-dealing decision-making process of the President and John Brennan. What due process the targeted person gets, is the due process that’s embedded in the secret decision making of the President and Brennan.
There’s no secret that the policy described in the white paper is highly controversial, even inside the Obama White House and Justice Department. That is almost certainly why the white paper was leaked to Isikoff, so that the rest of the world can see just how screwed up the self-justifying legal work is.
It’s long past time that one of the two other branches of our government intervene in this chilling business and bring some transparency and accountability to it. Brennan’s confirmation hearing for CIA director is at least a chance for that to begin to happen.
If the Senate Intelligence Committee does rise to this occasion, much of the credit should go to Ron Wyden, the U.S. Senator from Oregon, a Democrat, who has made himself a thorn in Obama’s and Brennan’s side on the drone wars. Sen. Wyden, like the Times and the ACLU, has been stonewalled in his efforts to obtain the Justice Department legal memo that Savage first reported on 15 months ago.
In a recent letter to Brennan, Wyden referenced Judge McMahon’s exasperation at the Administration’s unwillingness to provide a legal justification for the drone policy.
“As I have said before,” Wyden wrote, “this situation is unacceptable. For the executive branch to claim that intelligence agencies have the authority to kill American citizens but to refuse to provide Congress with any and all legal opinions that explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative. There are clearly some circumstances in which the President has the authority to use lethal force against Americans who have taken up arms against the United States, just as President Lincoln had the authority to order Union troops to take military action against Confederate forces during the Civil War. But it is critically important for Congress and the American public to have full knowledge of how the executive branch understands the limits and boundaries of this authority, so that Congress and the public can decide whether this authority has been properly defined, and whether the President’s power to deliberately kill American citizens is subject to appropriate limitations. I have an obligation from my oath of office to review any classified legal opinions that lay out the federal government’s official views on this issue, and I will not be satisfied until I have received them.”
Wyden then asked, again, for the opinions justifying the drone policy and a host of other documents he has sought over the past three years. He closed his letter with biting reminder to Brennan that Brennan was part of CIA under the Bush Administration “that repeatedly provided inaccurate information about its interrogation program.”
To his letter he attached a page of specific questions.
Here’s the first one:
“How much evidence does the President need to determine that a particular American can be lawfully killed? Senior Administration officials have stated that the individual must pose a “significant” or “imminent” threat, but how much evidence is required to determine that this is the case?”
All of Wyden’s questions are good ones. And they all should have been answered long ago.
Front page slider photo: Associated Press.
Tim Connor’s commentaries do not necessarily reflect the views of the Center for Justice.