President Obama’s nomination of his counterterrorism advisor John O. Brennan to head the CIA offers an opportunity for Congress to seek insight into the administration’s murky targeted killing program and the vast expansion of drone warfare.
Brennan has played a reportedly central role in deciding who gets marked for assassination, and how evidence is weighed and legal principles applied in the targeted killing program. Some estimates put the number of people killed by drones in the last decade in the thousands, mainly in Pakistan. They include a U.S. citizen, Anwar al-Awlaki, killed in Yemen, and his 16-year-old son, who was not an official target himself.
In October, the Washington Post reported that Brennan was preparing a “playbook” of guidelines for the drone program, in the event that Mitt Romney would win the presidency. The administration wanted to formalize the targeting process for its successors. It’s unclear whether the guideline project was shelved once Obama won reelection.
Here is how the Post described Brennan’s very central role:
In his windowless White House office, presidential counterterrorism adviser John O. Brennan is compiling the rules for a war the Obama administration believes will far outlast its own time in office, whether that is just a few more months or four more years.
The “playbook,” as Brennan calls it, will lay out the administration’s evolving procedures for the targeted killings that have come to define its fight against al-Qaeda and its affiliates. It will cover the selection and approval of targets from the “disposition matrix,” the designation of who should pull the trigger when a killing is warranted, and the legal authorities the administration thinks sanction its actions in Pakistan, Yemen, Somalia and beyond.
“What we’re trying to do right now is to have a set of standards, a set of criteria, and have a decision-making process that will govern our counterterrorism actions — we’re talking about direct action, lethal action — so that irrespective of the venue where they’re taking place, we have a high confidence that they’re being done for the right reasons in the right way,” Brennan said in a lengthy interview at the end of August.
A burly 25-year CIA veteran with a stern public demeanor, Brennan is the principal architect of a policy that has transformed counterterrorism from a conventional fight centered in Afghanistan to a high-tech global effort to track down and eliminate perceived enemies one by one.
What was once a disparate collection of tactics — drone strikes by the CIA and the military, overhead surveillance, deployment of small Special Forces ground units at far-flung bases, and distribution of military and economic aid to threatened governments — has become a White House-centered strategy with Brennan at its core.
His personal role is key, according to the Post:
Although he insists that all agencies have the opportunity to weigh in on decisions, making differing perspectives available to the Oval Office, Brennan wields enormous power in shaping decisions on “kill” lists and the allocation of armed drones, the war’s signature weapon.
When operations are proposed in Yemen, Somalia or elsewhere, it is Brennan alone who takes the recommendations to Obama for a final sign-off.
In a speech in Washington last April, Brennan laid out, in broad terms, how the administration approaches the decision-making around drone strikes:
Over time, we’ve worked to refine, clarify, and strengthen this process and our standards, and we continue to do so. If our counterterrorism professionals assess, for example, that a suspected member of al-Qa’ida poses such a threat to the United States as to warrant lethal action, they may raise that individual’s name for consideration. The proposal will go through a careful review and, as appropriate, will be evaluated by the very most senior officials in our government for decision. First and foremost, the individual must be a legitimate target under the law…
But notwithstanding Brennan’s pledge in that speech to be more “transparent” about targeted killing policy, the Obama administration has declined to make public an internal memo setting out its legal reasoning in the case of the targeted killing of the U.S. citizen, who was killed without trial, notwithstanding the Constitution’s bar on the government depriving someone of life without the “due process of law.” The New York Times sued* for the memo under the Freedom of Information Act, but federal judge recently ruled in the administration’s favour. However, the judge expressed frustration in her ruling that:
“I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.”
The administration’s view is that its own internal process for reviewing targets amounts to “due process of law” in the case of a suspected operational terrorist leader whose capture is not feasible. And as the Washington Post article describes, Brennan has been the heart of that internal review process.
His departure from the White House raises an important question: Will that internal review process move to the CIA with him? If not, what will take its place when he leaves?
The Post also reported that Brennan had been pushing to shift drone warfare from the CIA to the Pentagon:
Brennan is leading efforts to curtail the CIA’s primary responsibility for targeted killings. Over opposition from the agency, he has argued that it should focus on intelligence activities and leave lethal action to its more traditional home in the military, where the law requires greater transparency.
But will he change his view once he is the director of the agency — or will his directorship coincide with further “militarization” of the CIA?
Brennan’s confirmation hearings will give senators a unique opportunity to raise these important questions and others about the rapidly expanding drone program. It remains to be seen whether they will do so.
* Disclosure: My husband is a plaintiff in that case.