John Brennan Ducks Drones In Confirmation Hearing And We Stop Worrying About Extra-Judicial Killings

CIA Director nominee John Brennan testifies on Capitol Hill in Washington, Thursday, Feb. 7, 2013, during his confirmation he
CIA Director nominee John Brennan testifies on Capitol Hill in Washington, Thursday, Feb. 7, 2013, during his confirmation hearing before the Senate Intelligence Committee. (AP Photo/Manuel Balce Ceneta)

President Barack Obama wants his deputy national security advisor for homeland security and counterterrorism, John Brennan, to serve as the next director of the Central Intelligence Agency, and it's funny to think that just one week ago, the big concern was Brennan he was one of the Bush administration's chief supporters of "extraordinary rendition" and "enhanced interrogation techniques" -- media euphemisms for when you throw a guy into a dark, dank hole and torture the bejeezus out of him, far from prying eyes.

Brennan -- who presumably improves upon his predecessor, Gen. David Petraeus, in that he is not schtupping his biographer (not that we know, anyway!) -- has been considered for this post before, and these concerns are well-worn and almost feel quaint in our always-looking-forward, never-looking-backward attitude toward that grim era of moral dislocation.

But it came to pass that while most reporters were hard on the trail of whether Obama had shot skeet once at Camp David, what's become colloquially known as "the white paper" -- a 16-page memorandum that "provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens" -- found it's way into NBC News reporter Michael Isikoff's hot little hands.

Isikoff's report sort of touched off a banner week for other interesting disclosures in the world of expanded executive power and the Global War On Existential Concepts. For example, this week we learned more about the 50-some-odd nations that have assisted the U.S. with all that "extraordinary rendition" -- a diaspora of black-site hosting nations that include staid U.S. allies like Canada and the United Kingdom, along with some decidedly sketchier nations, like Libya and Syria. We've also learned that various American newspapers (The New York Times, The Washington Post) had been withholding the location of a secret drone base in Saudi Arabia. Withholding it from their readers, anyway -- the base location had been reported elsewhere.

There's long been a free-floating sense of unease over the use of military drones. In some ways, it's not particularly coherent. But there's enough angst over drones that the word "drone" now carries a vaguely sinister connotation. Not all drones, of course, are killing machines. But the general idea that unmanned planes might patrol our own skies, even doing nominally benign things like monitoring wildfires, has put the skitters into lawmakers on both sides of the aisle.

As far as the military drones go, the unease probably stems from a sense that it is a psychologically, if not morally, detatched method of waging war. Historically speaking, war is something that men -- and in increasing numbers, women -- have had to show up for. Whether it's on the battlefields of Antietam or in the trenches at Verdun or even high in the sky aboard the Enola Gay, human beings have had to make the geographic and the moral journey to come to the fight, and put themselves at risk in order to fight other human beings. The implicit tragedy, of course, is that were it not for the ambitions of particularly depraved people, or the incompetence of those who could not settle their differences of religion or territory, the ordinary people who do our fighting and dying would not need to have their skin -- literally -- in everyone else's game.

Drones, in all of their snub-nosed, almost cute physical aspect, are remote-controlled killing machines operated far from the field of battle. The invaluable service they provide is, of course, keeping soldiers out of harm's way. Presumably, they are cost-effective as well. But they add to our overall detachment toward the wars we are endlessly fighting, at a time where most Americans, face-down in shiny gadgets, are already fairly detached from the men and women who fight our battles in the field. (It's not a coincidence that the folks at Apple keep rejecting an iPhone app that would alert users to when and where a U.S. drone strike is carried out -- the black mirrors we carry in our pockets are supposed to be benign distractions.)

But as HuffPost's David Wood reported this week, "hardened warfighters" believe we should be less concerned with military hardware, and more focused on "the political and legal issues of killing at a time when the distinctions between combatant and civilian, between battlefield and non-battlefield, are blurring."

"The whole drone thing is a technology issue," said Paul D. Eaton, a retired infantry commander with 33 years of service. "People are hung up on the word 'drone.' The real issue is: Who are you killing and what is the legal justification for doing that?"

It's this debate that Isikoff's disclosed "white paper" has newly inflamed, especially over the matter of the targeted killing of American civilians. On one hand, we have the September 2011 targeted killing of American citizen Anwar Al-Awlaki, unambiguous wrongdoer and major figure in the al Qaeda death cult, in Yemen. On the other hand, we have the targeted killing of American citizen Abdulrahman al-Awlaki -- Anwar's 16-year-old son -- assassinated two weeks later, because, you know, reasons. When Robert Gibbs was asked to answer for the killing, and explain the threat Abdulrahman posed to the homeland, he said, "I would suggest that you should have a far more responsible father if they are truly concerned about the well being of their children. I don't think becoming an al Qaeda jihadist terrorist is the best way to go about doing your business." Yeah, I don't recall how or when the whole "sins of the father" thing got inextricably knit up in the judicial process either.

One of those hands, it seems, is easier to clean than the other -- and if we wanted to examine the stain on the second hand, we might also include our tradition of drone-attacking the people who arrive after the first drone attack to rescue and care for survivors. We might also add the neat bit of post hoc, ergo propter hoc reasoning that allows us to safely define all "militants" as "military age males who were unfortunate enough to be standing close to a drone attack." Taken together, suddenly we have the sort of "spot" that bedeviled Lady Macbeth -- Shakespeare's best known avatar of pre-emptive strikes.

Of course, things may have turned out better for the Macbeth family if they'd just hired the right lawyers. This is where the magical thinking of the "white paper" truly stands out, in it's introduction of "a more expansive definition of self-defense or imminent attack than described by Brennan or [U.S. Attorney General Eric] Holder in their public speeches":

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

Now, in deference to the legal eagles who devised this, they do put forth a three-pronged "test" that ostensibly must be passed in order to carry out one of these killings. Capturing the target must be deemed to be "infeasible," for example. And there is also a notion that everything must be done according to "law of war principles," whatever those are. And the third is this judgment of "imminence," as we see from the above paragraph, "does not require ... clear evidence that a specific attack" will ever take place. If an "informed, high-level" person has a funny feeling about an American citizen (like maybe he is the genetic descendant of someone already assassinated?) then the test is passed.

The "feasability test" is actually very cleverly self-reinforcing. Per Isikoff:

For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.

What is "undue risk?" I couldn't tell you! In a sense, any troop put on the ground is facing some sort of undue risk, hence the drones. Again, it's all gloriously self-reinforcing. But the salient point is this: It's all a step-through that allows the president to bypass the traditional constitutional requirements governing how American citizens are treated judicially.

Jameel Jaffer of the American Civil Liberties Union has a few obvious problems with this. He noted that the thinking on display in the white paper doesn't "stand up to even cursory review," elides over the possibility of even after-the-fact judicial review, and contends "incorrectly, that the courts have endorsed the view that there is no geographic limitation on the government's exercise of war powers."

The memo, Jaffer said, "takes as a given that the target of the strike will be a 'senior operational leader of al-Qa'ida or an associated force of al-Qa'ida,' and it reasons from that premise that judicial process is unnecessary.

"This is a little bit like assuming that the defendant is guilty and then asking whether it's useful to have a trial," Jaffer added, before finally concluding:

My colleagues will have more to say about the white paper soon, but my initial reaction is that the paper only underscores the irresponsible extravagance of the government's central claim. Even if the Obama administration is convinced of its own fundamental trustworthiness, the power this white paper sets out will be available to every future president -- and every "informed high-level official" (!) -- in every future conflict.

Jaffer's concern in that last conclusion -- about accepting the "fundamental trustworthiness" of the Obama administration to use executive power in this manner -- has proven to be a dividing line in the political debate, as Obama himself can be said to have "evolved" in his thinking on the broad powers that his predecessor, President George W. Bush, famously -- and controversially -- claimed for himself. Rather than re-restrict his office to a set of checks and balances that were once deemed constitutionally mandatory, if not merely sane, he has largely expanded upon them.

But for many on the left, what was once deemed controversial -- even frantically anger-inducing -- about the Bush administration has been trumped by their fundamentalist trust in Obama's fundamental trustworthiness. He's the guy in the white hat, after all! No need to fear, unless you've got something to hide, because the Good President will do Good Things, up to and including carrying out the assassination of a 16-year-old kid who didn't responsibly figure how to get out of having been the offspring of someone who would go on to be radical death cultist, I guess!

This is a pretty old and dispiriting routine to watch, but it's unfolded with a certain amount of dread expectability. Joan Walsh, who this week took to Salon to question why there was not "more outrage about the president's unilateral targeted assassination program on the left," pointed to a study by a Brown University professor who found that "Americans inclined to racially blinkered views wound up opposing policies they would otherwise support, once they learned those policies were endorsed by President Obama." But the study also found an interesting, and equal counter-current. As Walsh writes:

But Tesler found that the Obama effect worked the opposite way, too: African Americans and white liberals who supported Obama became more likely to support policies once they learned the president did.

More than once I’ve worried that might carry over to bad policies that Obama has flirted with embracing, that liberals have traditionally opposed: raising the age for Medicare and Social Security or cutting those programs’ benefits. Or hawkish national security policies that liberals shrieked about when carried out by President Bush, from rendition to warrantless spying. Or even worse, policies that Bush stopped short of, like targeted assassination of U.S. citizens loyal to al-Qaida (or “affiliates”) who were (broadly) deemed (likely) to threaten the U.S. with (possible) violence (some day).

Walsh's piece was certainly timely. The same day, on MSNBC's gadabout roulette extravaganza "The Cycle," co-host Touré showed up to make the argument that he was completely comfortable with Obama targeting American citizens for assassination, over the objections of S.E. Cupp and Steve Kornacki. Later, on Twitter, Touré basically revealed that he was pretty much cool with whatever Obama wanted to do, because, "He's the commander in chief."

Naturally, I'm obligated to point out that all "commander In chief" means is that the president sits atop the U.S. military's org chart, and not, as the many years of "commander In chief-creep" have caused many people to believe, King Big Shit Of Everything We're Supposed To Think And Do. And, if only to bring Touré closer to understanding what "targeted killing" means, I'd point out that for several decades, this nation's commanders in chief thought it was a well and fine idea for rich landowners to own other human beings as chattel, and we now lionize the efforts of those who, back then, didn't simply shrug and say, "Well, if the president thinks that's okay, I guess I do too." (Touré happens to be a big fan of the movie "Django Unchained," but what can I say? It seems that some of that film's subtleties may have been lost on him.)

During the run-up to the 2012 election, Conor Friedersdorf made a "case against casting a ballot for the president -- even if you think he's better than Mitt Romney," and Obama's "kill list" of people he believed he had the right to kill extrajudicially took a starring role. Friedersdorf -- while admitting that he did not believe there was such a thing as "a perfect political party, or a president who governs in accordance with one's every ethical judgment," nevertheless insisted that in order to stop certain "actions ... so ruinous to human rights, so destructive of the Constitution, and so contrary to basic morals," the electorate must put the withholding of their vote on the table.

Friedersdorf, I'm quite sure, harbored no illusion that his argument was going to go down like a sugar cookie, but my distinct recollection is that a healthy portion of resistance to his argument came from people who simply did not want to be troubled by such thoughts -- that the mere act of questioning whether Obama was Right and Good and True was, in itself, an unbearable intellectual imposition. But the simple fact is that for many of those Obama supporters, the notion of a Republican president being cloaked in the same powers that Obama claimed for himself was de facto reprehensible. And it's hard to fathom that if the GOP manages to elect a president in the future who would continue, if not further expand, this power, that howls of criticism won't suddenly again become very much in vogue.

Of course, one of the things we learned in the run-up to the 2012 election was that President Barack Obama was pretty sure that Mitt Romney couldn't be trusted with drones, and so the White House undertook a frantic effort "to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures."

It's not entirely clear what it was about Romney that finally put enough temporary fear into the Obama aides that they suddenly felt the need to start establishing parameters. Romney had many negative traits, but coming off as bloodthirsty madman was never among them. In fact, from time to time during the campaign, Romney stoked fears on the right that he was something of an isolationist (a euphemism for "not being totally committed to total, permanent, pre-emptive war). The conventional concerns over Romney's foreign policy -- insofar as he was able to elucidate one -- was simply the fact that he was surrounded by neocons.

Of course, when you are planning on sending John Brennan to run the CIA, being worried about the editorial board of the Weekly Standard having too much influence over the White House is awfully quaint.

While Brennan's nomination won't go down without some manner of resistance or questioning, the simple truth is that he will be confirmed -- there's too much reputational risk at stake for any Beltway critter to be thought of as "unserious" about fighting the Global War On Terror -- and the bombs, like the rain, will continue to fall on the just and the unjust alike. And maybe this will spawn new terrorists, maybe it won't. If it does, we can always expand our notions of what the Constitution deems allowable, and take further liberties, until such time as the sides switch and the people who are too forgiving of this White House decide to stop being forgiving. We have met the enemy, and it is our hopelessly stupid American brand of tribal political bullshit.



Protests Against Drones