John Brennan giving speech on "Law, Security & Liberty after 9/11" on September 16, 2011 (photo: Saul Tannenbaum)

President Barack Obama’s counterterrorism chief John Brennan delivered a speech at the Woodrow Wilson Center on Monday on the “ethics” and “efficacy” of the Obama administration counterterrorism policy. He particularly explained the policy of using remote-controlled aircraft or drones to target and assassinate alleged terror suspects or “militants” extrajudicially.

He prefaced the explanation of why the US drone program is “ethical” and “legal” in praising Obama’s resolve in the war against al Qaeda and the killing of Osama bin Laden.

Media coverage focused on the capability that drones give the United States to fight the “war on terror.” Here was how Brennan described the benefit of drone technology while at the same time obscuring how it can harm innocent civilians:

…A pilot operating this aircraft remotely —with the benefit of technology and with the safety of distance—might actually have a clearer picture of the target and its surroundings, including the presence of innocent civilians.  It’s this surgical precision—the ability, with laser-like focus, to eliminate the cancerous tumor called an al-Qa’ida terrorist while limiting damage to the tissue around it—that makes this counterterrorism tool so essential…

On CBS and CNN, the legal or ethical issues raised by drones received virtually no attention. The media was far more interested in the fact that Brennan shared details about documents seized from Bin Laden’s compound on how al Qaeda was experiencing increasing difficulty in replacing “commanders.” They were interested in how Bin Laden had urged leaders to flee and go somewhere “away from aircraft photography and bombardment.”

This aspect of Brennan’s explanation and defense of the Obama administration’s drone program is possibly more effective than any other argument in the speech, because it makes it easy to claim (albeit falsely) that the drone program works. A government official, media pundit or politician can say Bin Laden told “terrorists” to run from US drones. One can say Obama was on to something that could eventually defeat al Qaeda once and for all. And, the documents give unnamed officials room to accuse journalists that investigate the program of trying “to malign these efforts and help Al Qaeda succeed.”

The presence of individuals suspected to be members of al Qaeda or groups affiliated with al Qaeda is enough to make it permissible, in the Administration’s view, to launch attacks within any country. Very few question this belief, which stems from the Authorized Use of Military Force (AUMF), which President George W. Bush signed declaring the world a battlefield. As the American Civil Liberties Union’s Jameel Jaffer points out:  [cont'd]

Mr. Brennan’s speech confirms that the administration believes that the Authorization for Use of Military Force invests it with authority to use military force far away from conventional battlefields (“There is nothing in the AUMF that restricts the use of military force against al-Qa’ida to Afghanistan”), against groups that didn’t even exist when the AUMF was passed (al-Shabaab, Al-Qaeda in the Arabian Peninsula) and whose connection with “core al Qaeda” appears to be very attenuated, and against individuals who don’t represent imminent threats to the United States (“we ask ourselves whether the individual poses a significant threat to U.S. interests”). The administration also views some important legal restrictions as discretionary rather than binding (e.g., “our unqualified preference is to only undertake lethal force when we believe that capturing an individual is not feasible”).

Brennan sought to assure critics that the drone program is subject to “rigorous standards and a process of review”—what Attorney General Eric Holder called “due process” in a speech at Northwestern University in March. He said the “individual must be a legitimate target under the law.” He said just because it is “lawful to pursue the terrorist in question” doesn’t mean the US should. The “terrorist” has to pose a “significant threat.” Targeted killings, he explained, are to be used to disrupt actual plots. Killings are only to occur when capture isn’t “feasible.” The US must also respect a “state’s sovereignty and the laws of war.”

Additionally, Brennan stated:

The President expects us to address all of the tough questions I have discussed today.  Is capture really not feasible?  Is this individual a significant threat to U.S. interests?  Is this really the best option?  Have we thought through the consequences, especially any unintended ones?  Is this really going to help protect our country from further attacks?  Is it going to save lives?

It may be reassuring to hear some questions that must be answered and meet some kind of a threshold before a targeted assassination can be ordered and approved, but it cannot possibly be difficult to conjure a satisfactory answer for these questions. For example, terrorist-mediated attacks are a regular occurrence in Pakistan. Some of these attacks are likely carried out in retaliation after US drone attacks. Probably anyone whom the US gets someone in Pakistan to inform on can be placed on a list and at some point come up as a suspect worth considering for an attack.

Brennan asserts the US intelligence community “has multiple ways to determine, with a high degree of confidence, that the individual being targeted is indeed the al-Qa’ida terrorist we are seeking.” This certainty isn’t any different from the certainty with which President Bush and others asserted prisoners at Guantanamo were nothing but dangerous people who meant to do America great harm. Now it is clear that many of the men who were imprisoned were completely harmless and innocent. The intelligence that led to hundreds being rendered to Guantanamo is probably very similar to the intelligence being used to justify ordering “terrorists” killed. However, unlike those detained at Guantanamo, the “terrorists” Obama has killed can never go back to living anywhere. They are subject to capital punishment without a trial and gone forever.

The finality of all this is acceptable because America is “at war.” As Brennan bluntly states “war is hell,” it is “awful” and that is why “we despise war.” The history of interventions and conflict in the past hundred to one hundred and fifty years doesn’t quite support the idea that America “despises” war. America’s leaders are always ready to plunge into a war or conflict, especially if they can develop a good narrative to sell to the American people for why war is necessary. This section of the speech seems to be a device to silence critics who think the Obama administration just doesn’t understand the reality of what people are experiencing in other countries.

Lastly, like Holder’s speech in March, Brennan’s speech is an attempt at transparency to protect secrecy and prevent further scrutiny. The Obama administration will most certainly continue to block the release of Office of Legal Counsel memos that show the legal basis for the administration’s targeted assassination program. It will keep fighting the ACLU, Center for Constitutional Rights (CCR) and other groups that try to pry documents through Freedom of Information Act (FOIA) lawsuits out of the hands of government.

Brennan, Obama and other administration officials think they can just send any member of the administration out to make a speech about the program and that is automatically an action that provides openness and transparency. The overture to Americans may be commendable, but it serves an even more cunning purpose if the speech is simply aimed at normalizing the drone program and making people believe it is legitimate and uncontroversial. Few countries and lawyers accept the idea that a country can fly drones in any country’s airspace if they deem it necessary. And few in the world accept the idea that a government does not have to arrest people suspected of terrorism and give them a trial and can simply execute them anywhere in the world if they are deemed to be a threat.