Normative Narratives

Transparency Watch: The Justice Department’s “White Paper”, and Mr. Brennan Goes to Capitol Hill

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This post is an attempt to track recent developments with regards to a Justice Department “white paper” detailing targeted killings with drone strikes, and Mr. Brennan’s confirmation hearing with Senate with regards to his nomination as Director of the C.I.A. Most of the post is direct quotes from relevant actors. At the end of the post I will explore some different opinions on drone strikes.

I have separated the post into different sections (although they are all related) to make the information as accessible as possible. There are quotes from a number of articles, and sometimes different parts of an article will appear in different sections of this post. If you cannot find the source of a quote, check one of the other links, as I have linked all of the articles I pulled quotes from. The post is a bit complicated, but that is the nature of the issue being addressed. Be sure to leave any questions and opinions in the comment section.

The DoJ “White Paper”:

“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.’”

Mr. Brennan, as Obama’s nominee for head of the C.I.A., was due for a confirmation hearing before he assumed the position anyhow. However, the timely release of the DoJ “white paper” certainly puts more of a spotlight on the hearings, and shifts most of the attention from “enhanced interrogation techniques” to “targeted killings” via drone strikes.

Mr Brennan’s History: 

“Mr. Brennan, who has wielded tremendous power as the president’s top White House counterterrorism adviser, is expected to face occasionally sharp questioning on a range of topics: from the drone campaign in Pakistan, Yemen and elsewhere to his role in the Bush administration’s detention and interrogation program carried out while he was a top official at the C.I.A.”

“As the agency’s [C.I.A.]deputy executive director when waterboarding and other brutal interrogation methods were approved, he said, his job was to help “manage the day-to-day running of the agency” and he had no direct involvement in interrogations but had “significant concerns and personal objections” to elements of the program.”

“Brennan has been something of a Forrest Gump of toxic national security policies, having been in the room when everything from torture to the killing of an American citizen was being debated,” wrote Christopher Anders, the A.C.L.U.’s senior legislative counsel.

Given his wide-ranging portfolio of the past four years, Mr. Brennan’s move to the C.I.A. would narrow his responsibilities. He would have a role in the debate about whether the agency should gradually shift drone operations to the Defense Department, as many experts advise.”

Proliferation of Drone Strikes:

“Stanley McChrystal, the retired general, has warned that drone strikes are so resented abroad that their overuse could jeopardize America’s broader objectives. The secretary of state, John Kerry, spoke at his confirmation hearing of the need to make sure that ‘American foreign policy is not defined by drones and deployments alone.’”

“Leon E. Panetta, who headed the C.I.A. from 2009 to 2011 and has served as defense secretary since then, told NBC News on Sunday that he favored shifting most strikes to the military. ‘The advantage to it is it becomes much more transparent,’ Mr. Panetta said.”

“…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.

“The White House has said it is still developing rules for when to kill terrorists. The United States has conducted more than 400 total strikes in at least three countries — Pakistan, Yemen and Somalia — killing more than 3,000 people in its war on Al Qaeda, according to a report by Micah Zenko, a fellow at the Council on Foreign Relations. The majority killed were part of a C.I.A. covert program begun in 2004 and aimed at militants in Pakistan. At a minimum, United States rules should specify that no one can be killed unless actively planning or participating in terror, or helping lead the Taliban in Pakistan or Al Qaeda. Killing should be authorized only when it can be demonstrated that capture is impossible. Standards for preventing the killing of innocents who might be nearby should be detailed and thorough.

“The confirmation hearing provides an opportunity for Mr. Brennan to explain his view on whether there is any check on presidential decision-making, especially when American citizens are targeted, and whether targeted killings are creating more militants than they are eliminating.”

Because so much of the targeted killing program remains shrouded in secrecy, however, it is unclear how much the Senate Intelligence Committee will press Mr. Brennan for detailed answers about the program during the public session, or whether it will wait until the additional “closed hearing” that is routine for the confirmation hearings of C.I.A. directors.”

“An investigator for the United Nations Human Rights Council said last month that he would study the “exponential rise” in drone strikes in counterterrorism operations. More than 50 nations have or are trying to get the technology. The United States will set the standard for them all.”

Senate Hearing:

“In his opening statement, Mr. Brennan acknowledged ‘widespread debate’ about the administration’s counterterrorism operations but strongly defended them, saying the United States remained ‘at war with Al Qaeda.’

He [Brennan] said later that when C.I.A. drone strikes accidentally kill civilians, those mistakes should be admitted. ‘We need to acknowledge it publicly,’ he said. ‘In the interests of transparency, I believe the United States government should acknowledge it.’

But senators repeatedly complained that there was too little transparency about the targeted killing program, sometimes producing misleading information in the news media.

‘I think that this has gone about as far as it can go as a covert activity,’ Ms. Feinstein [Democratic Senator from California] told reporters after the hearing.’”

How can drone strikes operate in a more transparent way? Mr. Panetta has called for shifting drone operations from the C.I.A. to the D.o.D for accountability reasons. However, drones are generally used in covert missions, gathering intelligence and visually monitoring an area without striking. How can covert national security missions be made more “transparent”? While Mr. Brennan agreed more transparency was need, he had a hard time explaining how that could be achieved.

“Even Mr. Brennan had a hard time explaining how much information he thought should be disclosed about targeted killings. ‘What we need to do is optimize transparency on these issues, but at the same time, optimize secrecy and the protection of our national security.’ he said.”

 “Senator Ron Wyden, Democrat of Oregon, told Mr. Brennan that the committee had never been given the full list of countries in which the C.I.A. has carried out lethal operations.” Creating such a list would go a long way towards increasing accountability with regards to drone strikes. But do we really want national security operations on a list which could potentially fall into the wrong hands?

Another idea [proposed by Ms. Feinstein] was creating a special court to oversee drone strike issues, an idea that Brennan gave a lukewarm response: “Mr. Brennan was noncommittal, noting that lethal operations are generally the sole responsibility of the executive branch. But he said the administration had “wrestled with” the concept of such a court and called the idea “certainly worthy of discussion.”

Different Opinions About Drone Strikes:

Mary Ellen O’Connell, a professor of law and international dispute resolution at Notre Dame, is critical of the U.S. use of drone strikes:

“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.” (and honestly, who knows where else)

“For years, Mr. Obama has stretched executive power to claim that the 2001 Congressional authorization to use military force against Al Qaeda gives him the unilateral authority to order people, including American citizens, killed away from any battlefield without judicial oversight or public accountability. He took a step in the right direction on Wednesday when he directed the Justice Department to give Congressional committees its classified legal advice on targeting Americans.”

“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.

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.’”

Counterpoint:

The U.S. is not legally bound to U.N [or any international organizations] decisions. The U.S. remains autonomous from the U.N (although the two work very closely, legally U.S. military action is decided by Congress and the President; how closely a President works with the U.N. varies by administration). Definitions need to be changed to meet to evolving nature of conflict. Terrorism is becoming more sophisticated with the use of new technology, therefore counterterrorism measures must keep up.

As a nation, we did not do enough to prevent 9/11 or take terrorists (Al Queda specifically) abilities to strike on U.S. soil seriously; we must not underestimate their abilities again. While humanitarian injustices are good reasons to fight terrorism abroad, the number one objective of U.S. foreign policy is to ensure no future attacks are carried out on American soil. If drone strikes help this goal, then they are a worthwhile tool to use (perhaps less liberally than the Obama administration has, although how would any regular citizen have any insight into when and where drone strikes are “justified”.  


I have personally heard many different opinions on this issue. Those opinions range from “who cares, if they are  terrorists it’s fine” to “this is an over-extension of executive powers, it undermines due process and is therefore unconstitutional.”

Every President has expanded executive power in some way to deal with the issues of the day. Is what the Obama administration doing justified? Is it constitutional? How do you feel about other countries using drone strikes? How can we improve our drone operations to make the process more effective and transparent / accountable without undermining national security interests?

This is a very interesting topic; as the debate shifts to the public realm, I can only imagine more and more people will have strong opinions about the issue. While public opinion may shape how certain actors in the media perceive the issue, ultimately these difficult decisions will have to be made by defense experts and not ordinary citizens.

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