Drone Killings, the Constitution, International Law, and the John Brennan File

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Recent News Reports and Commentary

Michael Isikoff (National Investigative Correspondent, NBC News), “Justice Department memo reveals legal case for drone strikes on Americans; A secretive memo from the Justice Department, provided to NBC News, provides new information about the legal reasoningbehind one of the Obama administration’s controversial policies. Now, John Brennan, Obama’s nominee for CIA director, is expected to face tough questions about drone strikes on Thursday when he appears before the Senate Intelligence Committee,” Open Channel on NBC News.com, February 4, 2013.

Chris McGreal (New York), “John Brennan faces grilling over drone leak as senators demand answers; Nominee for CIA director set for tough confirmation questions from senators angered by lack of White House clarity on drones,” The Guardian, February 5, 2013 (13.51 EST).

Spencer Ackerman, “How Obama Transformed an Old Military Concept So He Can Drone Americans,” Wired, February 5, 2013 (10:16 AM).

Department of Justice, White Paper, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al Qa’ida or an Associated Force,” MSNBC, February 5, 2012.

John Brennan’s Senate Confirmation Hearings to be the Director of the CIA

It is clear that the confirmation of John Brennan by the U.S. Senate should at the very least be delayed until a number of very disturbing questions have been answered relating to the U.S. drone operations and kill lists directed by Brennan from the White House and by other agencies.

The leaking on February 4 and subsequent acknowledgment by government officials of an unclassified “Department of Justice White Paper” on the legal justification forthe killing of U.S. citizens in particular, and the drone operations in general, has raised more questions than it has answered, and led to calls by Senators for release of the full classified legal memorandum upon which it the White Paper was based.

Suddenly, Barack Obama’s secrecy bubble within which he and Executive branch officials convinced themselves that the drone strikes at targets on their kill lists, including the execution of American citizens such as Anwar al Aulaqi, are justified under the U.S. constitution, by domestic law, and under international law, has burst.

Now their legal justifications must be examined in the light of day.

Outside President Barack Obama’s secrecy bubble, the self-assurance of officials who have been talking essentially to themselves for the last four years, and longer, will necessarily give way to to a more objective consideration of their legal arguments, and also of the strained efforts the Bush and Obama administrations have undertaken to keep their actions and legal arguments from judicial review.

The very idea of a “secret” legal memorandum justifying the execution of individuals, including U.S. citizens, is at variance with bedrock principles of democracy and the rule of law. The “state secrets doctrine” used by the government to prevent judicial review of its legal arguments, e.g., in the al-Aulaqi case, turns the Constitution on its head.

One cannot meaningfully speak of “the rule of law” when the legal justifications the government advances for its actions are held in secret.

It is clear that John Brennan’s confirmation by the Senate should be delayed until the many questions raised by his stewardship of the drone executions of individuals on “kill lists” which he oversaw, to which candidates might be “nominated” by different Executive branch and military officials, has been fully exposed to the light of day, and its legality under both domestic and international law has been fully examined by domestic and international lawyers outside of the Executive Branch, both in and outside the government. 

Before Brennan is confirmed to be the Director of Central Intelligence, a fresh look should also be taken by the Senators who must confirm him into his role in the torture policies of the Bush administration, and decisions not to hold accountable officials in the CIA and other parts of government for their role in the design and execution of these torture or “enhanced interrogation techniques programs”.

Brennan’s role in the “extraordinary renditions” carried out by the Bush administration, including the operation recently condemned by the European Court of Human Rights in a case involving Macedonia, should also be thoroughly explored. Senators should confirm whether or not the U.S. has participated since 2009 in any further “extraordinary renditions” or maintained any “black sites” where detainees were secretly held in foreign countries, including allegations that some were being held or had been held at the CIA black site operation in Benghazi prior to the September 11, 2012 attacks and murder of Ambassador Chris Stevens.

There is a significant possibility that John Brennan, under applicable norms of international law, could in the future be charged in some foreign country with complicity in the international crime of torture, and in war crimes that drone strikes outside the bounds of international law may constitute.

Before he is confirmed, Senators should have clear and persuasive answers to these questions and others related to the legality of drone executions, the Bush torture program, extraordinary renditions, CIA black sites, and John Brennan’s role and actions in each of these areas.

The Trenchant Observer

See also the following articles by Trenchant Observer published earlier, which are listed on the “Targeted Killings Page”, and also below:

The Obama Leaks: The issue is not the leaks, but whether the president lied to the American people
July 4, 2012

“A time to break silence”: Dr. King on the Vietnam war, and President Carter on America’s human rights violations (revised June 28)
June 27, 2012 (updated June 28, 2012)

Holder’s Investigations into Torture and Covert Operations Leaks–An Obama Cover-up?
June 26 2012

Did the White House authorize recent leaks on covert programs?
June 10, 2012

Foreign policy incompetence; further opinion on President Obama as “Executioner in Chief”
June 6, 2012

More news and opinion on President Obama as “Executioner in Chief”
June 3, 2012 (Updated June 4, 2012)

President Obama as “Executioner in Chief”
June 1, 2012

Attorney General Eric Holder offers legal justification for targeted killings of U.S. citizens abroad
March 24, 2012

Obama’s foreign policy juggernaut, including Tom Donilon, and the risks of hubris (updated)
January 27, 2012

Drone Attacks and Other “Targeted Killings” — State Department Legal Adviser Invokes International Law Limits
September 24, 2011

International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World
July 17, 2011

Strategic disarray in Afghanistan
October 3, 2010

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council
June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations
May 20, 2010

Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
April 7, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications
February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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