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Drone Assassination Memo Puts Likely CIA Chief John Brennan On the Spot

President Obama is giving the congressional Intelligence Committees a look at a legal opinion justifying the killing of Americans as the Senate considers John Brennan to be CIA director.
 
 
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John Brennan in Washington, DC in 2011.

 
 
 
 

The Senate Intelligence Committee’s hearing on John Brennan’s nomination to be CIA director presents a rare public opportunity for Congress to insist that the White House publicly defend whatever legal reasoning has been adduced to justify the killing of alleged American terrorists working with al-Qaeda on plots to attack the United States.

Brennan, from his position as President Barack Obama’s adviser on counterterrorism, is widely (and correctly) seen as the promoter and implementer of policies that ignore a citizen’s traditional constitutional protections, which require some form of judicial procedure before the government can take life or property, a structure of due process that has been thoroughly trampled since 9/11 and the “war on terror.”

The question before the Senate Intelligence Committee is whether the members will demand serious answers regarding the rationale for these extrajudicial killings and whether those answers can be squared somehow with the U.S. Constitution.

Will Committee Chair Dianne Feinstein, D-California, allow the public curtain to be lifted on the key legal issues involved in the killings as well as on narrower operational aspects? Recent congressional practice – especially since 9/11 – has been to acquiesce to even the most blatant CIA evasions and to halt the rare truthful briefing by declaring, in effect, “OK, that’s enough; I don’t need to know any more.”

With very few exceptions, congressional overseers have transitioned into congressional overlookers. This goes in spades when the word “terrorism” is raised; members face an unwelcome dilemma between choosing to remain unwitting (and, thus, have plausible denial) on the one hand or to acquire complicit knowledge on the other. A high-profile public hearing like the one on Brennan’s nomination makes it more difficult than usual to maintain the desired ambiguity.

I am reminded of the lame lament by House Minority Leader Nancy Pelosi, who — after an unusually long tenure on the House Intelligence Committee — complained that she had been lied to by the CIA about torture. But CIA’s Office of Congressional Affairs quickly dug out memoranda of conversations with Pelosi alleging that she had been let in on the dirty secret. The California Democrat suddenly fell silent.

If further proof of congressional obsequiousness were needed, Sen. Lindsey Graham, R-South Carolina, has openly described Congress’ abnegation of responsibility,  noting last year, with uncommon candor: “Who wants to be the congressman or senator holding the hearing as to whether the President should be aggressively going after terrorists? Nobody. And that’s why Congress has been AWOL in this whole area.”

Graham does not sit on the Intelligence Committee, but this attitude is widely shared. And, as a member of the Senate Armed Services Committee, he does oversee/overlook lethal operations by the Joint Special Operations Command.

Hiding Behind Secrecy

Congress has shown little interest in grappling with nettlesome constitutional issues, like the secret legal opinions that seek to justify “targeted killings” of suspected terrorists, including Americans, by stretching presidential war powers to far corners of the world, distant from any active battlefield, wherever someone might be plotting some threat to the American homeland. The evidence, like the legal justification, remains secret.

Only on the eve of Brennan’s confirmation hearing did Obama finally order the detailed 2010 legal memo from the Justice Department’s Office of Legal Counsel to be shared with the Intelligence Committees. The memo justified the killing of Anwar al-Awlaki, a U.S. citizen who became a leader of al-Qaeda in Yemen and allegedly participated in operational planning for terrorist attacks on the United States. Awlaki was killed in a CIA drone strike in September 2011.

Until Obama’s announcement, the administration had not even openly acknowledged the existence of the documents. It also remains unclear how publicly the legal memo will be discussed during Brennan’s confirmation hearing on Thursday.

 
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