Serial Abuser of Executive Branch “Flexibility,” John Brennan, Making Veto Case on Detainee Provisions

I have already said I think Obama needs to veto the Defense Authorization because of the detainee provisions. And I have argued that the Administration needs to lay the groundwork for doing so right now, preferably by fear-mongering about how much less safe presumptive military detention would make us.

Obama claims he’s still going to veto the Defense Authorization because of these detainee provisions. Good. I think he should. But if he really plans to do so, someone needs to be fear-mongering 24/7 about how much less safe these provisions will make us (and they will).

But I’m dismayed the Administration has chosen John Brennan, of all people, to do so. (h/t Ben Wittes)

The Administration has chosen someone who served as a top CIA executive during the period it developed its torture program to go out and argue the Executive Branch needs “flexibility” in detention to collect intelligence.

And so, what we’ve tried to do in this administration is to maintain as much flexibility as possible. And anything that restricts our flexibility in terms of how we want to detain them, question them, prosecute them is something that counterterrorism professionals and practitioners really are very concerned about.

[snip]

What we want to do is to extract the intelligence from them so that we can keep this country safe. We cannot hamper this effort. It’s been successful to date and this legislation really puts that at risk. [my emphasis]

We let a President have that kind of unrestricted flexibility on how to detain suspected terrorists and he used it to order Brennan’s agency to engage in torture.

But it’s not just with torture that John Brennan has been party to the Executive Branch’s abuse of this kind of unfettered “flexibility” in the past.

As I’ve pointed out, one of the problems (for the Administration) with the AUMF-affirming language in the Senate detainee provisions is that it may circumscribe the Administration’s ability to claim that terrorists with no ties to al Qaeda are legitimate military targets. That broader interpretation, relying on the Iraq AUMF, was implemented in 2004 to authorize things that presumably were already being done with the illegal wiretap program. When that May 2004 opinion was written, –relying on that expansive definition–for the illegal wiretap program.

And then there’s the Administration’s insistence that no court should be able to review their decisions about who is and is not an enemy under the AUMF and whether those enemies represent an imminent threat. They prevented such a review with Anwar al-Awlaki, in part, by invoking state secrets over the precise terms at issue in the detainee language. Yet after the Administration killed Awlaki, Administration officials spilled state secrets repeatedly, at times solely to . Brennan even provided details covered under state secrets declarations on the record. The Administration’s badly hypocritical approach to secrecy in the case of Awlaki, particularly its failure to prosecute John Brennan for leaking state secrets, makes it clear their state secrets invocation had nothing to do with national security, but instead had to do with remaining free from any oversight–with retaining the maximum “flexibility,” if you will–over precisely the issues at the core of the detainee provisions. And as with torture and illegal wiretapping, John Brennan was at the center of that gross abuse of executive power as well.

There are some superb reasons to veto the Defense Authorization because of the detainee provisions: largely because DOJ has proven best able to interrogate and prosecute terrorists in the last decade. And there are some horrible reasons to do so: to allow the Executive Branch to continue to wield expanded powers with almost no oversight.

John Brennan is, in this Administration at least, the personification of all the horrible reasons.

Update: The AP reports the Administration is conducting a “full court press” to get changes to the bill. But look at what they point to to justify their “flexibility:”

The administration insists that the military, law enforcement and intelligence agents need flexibility in prosecuting the war on terror. Obama points to his administration’s successes in eliminating Osama bin Laden and al-Qaida figure Anwar al-Awlaki. Republicans counter that their efforts are necessary to respond to an evolving, post-Sept. 11 threat, and that Obama has failed to produce a consistent policy on handling terror suspects. [my emphasis]

Frankly, they’d probably be able to assassinate Awlaki under the new bill. But it’s telling they point to it–based as it is on their ability to interpret the AUMF in secrecy and with no oversight–as their justification for “flexibility.”

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

14 replies
  1. par4 says:

    Obama assassinated a citizen without any due process. He needs to be removed from office instantly and prosecuted to the full extent of the law. The same goes for all of the Bush administration. The crimes of both parties have become so outlandish that anyone who votes for anyone in either party should be tried for aiding and abetting an ongoing criminal enterprise.

  2. allan says:

    “Yet after the Administration killed Awlaki, Administration officials spilled state secrets repeatedly…”
    It’ll be interesting to see what happens if and when the Republicans retake the White House.
    I can easily see prosecutions of Obama appointees for revealing such secrets.
    Can you say Attorney General Cuccinelli?

  3. MadDog says:

    I found this part of Brennan’s discussion troubling as well:

    “…BRENNAN: It is very troubling in terms of picking up somebody here on U.S. soil. If there are U.S. citizens who are engaged in hostilities on the battlefield abroad, we want to make sure that our military is able to deal with them appropriately. But there also are certain considerations we need to account for in terms of U.S. citizenship…

    (My Bold)

    If I’m remembering correctly, wasn’t it the US government’s position in the al-Awlaki assassinations (both father and son), that those US drone strikes were conducted by the CIA, and if so, since when in Brennan’s mind has the CIA been considered part of the US military?

    Additionally, there’s Brennan’s later commentary in the same response:

    “…We need to demonstrate, through the strength of our judicial system, that we can handle these issues, particularly on our soil, in a way that’s consistent with our commitment to that rule of law, but also works very effectively in terms of getting the intelligence we need to keep this country safe…”

    (My Bold)

    If Brennan is referring to the handling via “our judicial system” of the US government’s unceasing use of States Secret Privilege to shield, hide, and obstruct all attempts to obtain and ensure justice, then he and the US government have a vastly different understanding of “our judicial system” than the founders of our nation, the writers of our Constitution and the American public.

  4. Roman Berry says:

    @P J Evans: I’m not par4, but my suggestion would be to find a candidate that actually believes what you believe and vote for them. Voting for “the lesser of two evils” is still voting for evil, and with the ratchet effect in full play, is largely what has landed us in this fine mess.

    To vote for a candidate or an incumbent president who supports these things or does these things is to effectively say that you support these things too. That’s why I won’t be voting for a candidate from either wing of The Money Party next year. Because I do not support these things.

  5. MadDog says:

    @MadDog: Just in case of anyone’s misunderstanding, I am not suggesting that I support the government’s use of “material support of terrorism” in the way that they have. My point about those “success stories” is that law enforcement is not and has not been an impediment to taking on the challenge of dealing with those charged with terrorism-related crimes as folks, mostly Repugs like Lindsey Graham and Jon Kyl, but not exclusively Repugs, would have the country believe.

  6. Stu Wilde says:

    I just read Greenwald over at Salon who had a link to sen levin (MI) who said on the floor that the administration INSISTED on the controversial language in section 1031 that deprives citizens of due process rights (among others). Your post seems to suggest the administration is trying to strengthen that provision?

    I’m confused that obama would insist on the language, then threaten to veto because it didn’t go far enough — wow, Twilight Zone time…

  7. emptywheel says:

    @Stu Wilde: Yeah, I reported that Levin bit last month. This post might help to orient you on what’s going on.

    I do think the Admin is opposed to presumptive military detention, partly bc it ties their hand and partly bc it’s stupid.

    But I also think the Admin doesn’t want any law in this area because it’ll limit their ability to do things like geolocate and assassinate people.

  8. MadDog says:

    Tangentially related – This Philip Giraldi piece came out after my comment hunch about a MEK/Israel relationship:

    “Washington’s Secret Wars

    …A separate finding on Iran’s alleged nuclear weapons program was signed in 2007 by President Bush. It authorized attacks against Iranian nuclear scientists and other facilities in Tehran and elsewhere as well as coordination with the Israelis to develop computer viruses to disrupt the Iranian computer network, a program that led to the production of the Stuxnet worm. While the media credits “the Israelis” in the assassinations of Iranian scientists, the reality is that no Israeli (or American) intelligence officer could possibly operate effectively inside Iran to carry out a killing. The assassinations, which are acts of war, have actually been carried out by followers of the dissident Iranian Mujahedin e-Khalq (MEK), the separatist Baluch Jundallah, and the Kurdish PJAK, all acting under direction from American and Israeli intelligence officers. The MEK’s role in doing the CIA’s and Mossad’s dirty work is one reason so many neoconservatives and national security experts have been calling for the group to be removed from the U.S. terrorist group list…

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