February 6, 2013
The Questions Brennan Can't Dodge
By MARY ELLEN O'CONNELL
SOUTH BEND, Ind.
AT his confirmation hearing today, John O. Brennan, President Obama's nominee to lead the Central Intelligence Agency, is likely to face tough questions on a host of topics, including the soaring use of drone strikes, which have killed at least four Americans, one of them intentionally; his performance as the president's counterterrorism adviser; the rise of Islamist radicalism in northern Africa; and his past comments on engagement with Iran.
The senators should also hold Mr. Brennan to account for one of the administration's gravest failings: its refusal to openly discuss the legal basis for America's campaign of targeted killings of terrorism suspects, including Anwar al-Awlaki, the American citizen and radical imam who was killed in a drone strike in Yemen in September 2011.
We learned this week, thanks to reporting by NBC News, of a 16-page, unsigned, undated Justice Department "white paper" that outlines the Obama administration's legal reasoning about targeted killing. The paper asserts that the government may lawfully kill a United States citizen if "an informed, high-level official" decides that the target is a high-ranking Qaeda figure or affiliate who poses "an imminent threat of violent attack against the United States" and that capturing him is not feasible.
The paper's sweeping claims of executive power are audacious. For a threat to be deemed "imminent," it is not necessary for a specific attack to be under way. The paper denies Congress and the federal courts a role in authorizing the killings -- or even reviewing them afterward. In doing so, it cites the authorization of force that Congress granted to President George W. Bush after 9/11.
Yesterday, the White House suddenly agreed to let the two Congressional committees on intelligence see classified legal "advice" related to the white paper -- a good but insufficient step. The administration should fully release the 2010 classified memorandum that was the basis for the unclassified, leaked white paper.
I was struck to find my name on Page 4 of the white paper, which summarized my argument that "the conflict between the United States and Al Qaeda cannot lawfully extend to nations outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanistan itself."
The lawyers dismissed my view, arguing that "there is little judicial or other authoritative precedent" on the issue, since the nation is fighting a "transnational, non-state actor" where the "principal theater of operations" is not in a country in conflict with America.
These are more than legal quibbles.
When Hellfire missiles were first used in drone strikes to kill outside a combat zone -- in Yemen, in 2002 -- six men died, including an American. A United Nations special rapporteur declared the action unlawful, but C.I.A. drone attacks have increased substantially since then: the Bureau of Investigative Journalism, a nonprofit news organization in London, estimates the number of persons killed in drone attacks at 3,000 to 4,500, including well over 200 children.
Today, the United States is involved in a true armed conflict only in Afghanistan. Yet drone attacks have been carried out in Yemen, Somalia and Pakistan and may soon begin in Libya, Mali and Nigeria. None of these countries have attacked America, so no right of self-defense can be invoked under the United Nations Charter, as the white paper asserts.
The Bush administration memos that attempted to justify torture, indefinite detention and illegal wiretapping have been widely rejected. How, then, can Mr. Brennan and other advisers to Mr. Obama (a former lecturer on constitutional law) condone this spurious effort to justify targeted killings?
Terms like "armed conflict," "combat" and "battlefield" are integral to the proper functioning of human rights law and international humanitarian law, including the Geneva Conventions. Such definitions are well established and can no more be tampered with to suit the administration's preferences than can the definition of torture. Sadly, the Justice Department's Office of Legal Counsel, which under Mr. Bush drafted the notorious memo that narrowly construed torture as severe pain causing "organ failure, impairment of bodily function, or even death," has now, under Mr. Obama, drafted the targeted-killings document.
The white paper cites a 2010 speech by Harold H. Koh, the State Department's top lawyer and a former dean of Yale Law School. He once testified that the main Bush-era torture memo was "perhaps the most clearly erroneous legal opinion I have ever read." Having read the white paper, I think it's a tossup.
Targeted killings are, of course, different from torture: the C.I.A.'s "enhanced interrogation techniques" were largely kept secret until the so-called torture memos came to light. But the launching of Hellfire missiles and the dropping of 500-pound bombs, even in remote rural areas, can hardly be kept secret.
Putting aside whether the targeted killings are even effective, the law must take precedence. Outside of armed conflict zones, the killing of innocent bystanders cannot be tolerated. The Justice Department has concocted an elastic definition of necessity -- attempting to justify force in the absence of an immediate lethal threat -- without citing any treaty or decision by an international court.
Members of the Senate Select Committee on Intelligence have a duty to interrogate Mr. Brennan on all of these issues -- not just the attacks but the legal pretexts for them. They should also demand the full, public release of all the legal analyses behind targeted killings.
"Secret law" is an oxymoron. The rule of law is the basis of our democracy and the foundation of international relations. Facts like operational details may properly be kept confidential, but not the law itself.
Mary Ellen O'Connell, a professor of law at the University of Notre Dame, is the editor of "What Is War? An Investigation in the Wake of 9/11."