Last night President Obama reversed course and agreed to share previously withheld and classified Justice Department legal memos with the Senate committee that is tasked with questioning Mr. Obama’s CIA director-nominee John Brennan at his Senate confirmation hearing today. Those memos, as well as a Justice Department “white paper” leaked earlier this week, shed light on America’s semisecret and expanding drone program and the targeted killing of Americans suspected of Al Qaeda involvement.
And the release of these documents couldn’t be more critical or timely: In his current capacity as head of counterterrorism, Mr. Brennan is the architect of America’s drone and targeted killing program.
Words such as "torture," "extraordinary rendition," and "targeted killing" weren’t part of the 1940s and 50s policy vocabulary (at least not publicly) because those actions were then considered unacceptable and un-American. Yet by degrees they seem to have become both more acceptable and official policy. Too much of the debate on those subjects has focused on whether these actions work (i.e. eliminate perceived enemies), not whether they are right from a legal and moral perspective.
In the aftermath of World War II, the United States took the lead in creating a mechanism for world peace through international cooperation. The United Nations was designed to foster a common body of international law through its charter and the Universal Declaration of Human Rights. The UN's commitment to peace and justice helped earn the US broad respect and praise.
The post-9/11 era has witnessed a radical departure from the rule of law as embodied in the UN Charter and related documents. From the presidency of George W. Bush to the present, the US government has intervened more frequently in other countries – unilaterally, covertly, and often without reference to international legal norms. The Central Intelligence Agency has assumed paramilitary functions and operates what may be called a “gameboy war” with its drone program.
Among other rationalizations for these actions, the Justice Department white paper declares: “A lethal operation against an enemy leader undertaken in national self-defense...that is authorized by an informed, high-level official...would fall within a well-established variant of the public authority justification and therefore would not be murder.” By the terms of the white paper, an American citizen with presumed ties to a terrorist organization who eludes capture anywhere in the world would seem fair game for a drone strike (or a more personal assassination). Where does that leave the Fifth Amendment and its due process requirement?
A separate report this week by the Open Society Justice Initiative (“Globalizing Torture”) adds fuel to the fire by detailing the extent of the CIA’s detention and interrogation program around the world after the attacks of September 11, 2001. Among other things, the report concludes: “By engaging in torture and other abuses associated with secret detention and extraordinary rendition, the US Government violated domestic and international law…’
Whatever the outcome of today’s confirmation hearing, the release of the white paper has already brought some welcome transparency to the Obama administration’s policies on drones and torture.
But transparency and some hard questioning for Brennan at a confirmation hearing aren’t enough to really address the policy and the questions it raises.
Last year the law schools of Stanford University and New York University collaborated on a nine-month study of drone strikes in Pakistan. Contrary to the claims of Brennan and the Justice Department's white-paper legalisms, the report cites substantial civilian casualties, questionable legality, and evidence that the attacks helped terrorist groups attract recruits.
At today’s confirmation hearing, the CIA director candidate should be asked not only about the killing of Americans, but also about civilian victims of drone strikes, extraordinary renditions, and torture. He should explain why it was right to kill three Americans in Yemen, depriving them of their Fifth Amendment protection of life through due process of law. He should explain why the CIA should be running a semisecret gameboy war based on the legal rationalizations of a white paper that ignores international law and relies on “trust me” authorizations by unnamed executive branch officers.
Will continued drone attacks on foreigners (and Americans) suspected of involvement with Al Qaeda make America safer – or will they engender what Gen. Stanley McChrystal has called a “visceral hatred” of the US? Are those attacks really, as the attorney general insists in the white paper, “consistent with the laws and values” that earlier Americans helped institutionalize as part of the UN Charter back in 1945?
If not, do we really want Mr. Brennan to direct the CIA?
L. Michael Hager is cofounder and former director general of the International Development Law Organization in Rome.