The Assassination Czar’s War Crimes Dodge: Revisiting John Brennan’s Targeted Killing Speech

Now that John Brennan is in charge of selecting which patterns of behavior we should target with drones, it ought to be easy to charge him with war crimes. The at least eight civilians we killed in Jaar a number of weeks after Brennan seized control of targeting? John Brennan killed them, presumably based not on intelligence about who they were and what ties to AQAP they had, but because they ran out of a house after an earlier strike.

John Brennan is choosing to target people in Yemen without making adequate efforts to avoid civilian casualties. Given that we know he’s making these choices, you’d expect someone to try to hold him accountable.

Of course, such an effort would present all kinds of difficulties. You can’t really make a legal case against Brennan based on anonymous sources in an AP story. Furthermore, moving the drone program into the National Security Council makes it inaccessible to FOIA and, probably, to full Congressional oversight.

Most of all, though, Brennan appears to be preemptively crafting his defense.

When Brennan gave his drone speech on April 30, I–and a few other people–noted that the speech was already outdated. Brennan did admit, unequivocally, that we use drones to kill people.

So let me say it as simply as I can.  Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.

Yet he spoke repeatedly of targeting specific individuals.

Without question, the ability to target a specific individual, from hundreds or thousands of miles away, raises profound questions.

[snip]

In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets. [my emphasis]

Thus, he wasn’t talking about the program in Yemen that–perhaps 10 days earlier–had been expanded to target patterns rather than individuals. Rather, he was pretending that the program remained limited to personality strikes, strikes against known targets.

The speech always seemed like an attempt to put the best spin on the program. But the approach makes even more sense now that we know Brennan is the one who has legal liability for making these targeting decisions.

When and if anyone were to charge Brennan for war crimes for targeting civilians, for example, he will point back to these paragraphs as “proof” of his “belief” that we were not targeting civilians.

Targeted strikes conform to the principles of distinction, the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted.  With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaida terrorist and innocent civilians.

Targeted strikes conform to the principle of proportionality, the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage.  By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, it is hard to imagine a tool that can better minimize the risk to civilians than remotely piloted aircraft.

He will also point to these paragraphs–which we now know are also outdated–describing a targeting process that existed before Brennan seized control of the process.

This leads me to the final point I want to discuss today, the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of al-Qaida outside the hot battlefield of Afghanistan.

[snip]

If our counterterrorism professionals assess, for example, that a suspected member of al-Qaida poses such a threat to the United States to warrant lethal action, they may raise that individual’s name for consideration.  The proposal will go through a careful review and, as appropriate, will be evaluated by the very most senior officials in our government for a decision. First and foremost, the individual must be a legitimate target under the law.

[snip]

Even if it is lawful to pursue a specific member of al-Qaida, we ask ourselves whether that individual’s activities rise to a certain threshold for action, and whether taking action will, in fact, enhance our security. For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests.  This is absolutely critical, and it goes to the very essence of why we take this kind of exceptional action.

[snip]

I am not referring to some hypothetical threat, the mere possibility that a member of al-Qaida might try to attack us at some point in the future.  A significant threat might be posed by an individual who is an operational leader of al-Qaida or one of its associated forces.  Or perhaps the individual is himself an operative, in the midst of actually training for or planning to carry out attacks against U.S. persons and interests.

[snip]

In addition, our unqualified preference is to only undertake lethal force when we believe that capturing the individual is not feasible.

[snip]

Given the stakes involved and the consequences of our decision, we consider all the information available to us, carefully and responsibly.

We review the most up-to-date intelligence, drawing on the full range of our intelligence capabilities.  And we do what sound intelligence demands, we challenge it, we question it, including any assumptions on which it might be based.  If we want to know more, we may ask the intelligence community to go back and collect additional intelligence or refine its analysis so that a more informed decision can be made.

We listen to departments and agencies across our national security team.  We don’t just hear out differing views, we ask for them and encourage them.  We discuss.  We debate.

What appears to have happened is the Saudis delivered up a sting presenting a threat, and following that, we–or rather, John Brennan–proceeded to target more generally, using that Saudi-delivered threat as the rationale.

But Brennan will be able to point to these outdated paragraphs and claim they represent his understanding of the legal review of the targeting for the killings he oversaw.

John Brennan has always lied publicly about the drone program, particularly the civilian deaths associated with it. But knowing what has transpired in the last month–the Saudi sting presenting a threat, followed by the decision to use signature strikes overseen by John Brennan–it seems like something far more cynical: a pre-emptive statement of his purported understanding about the drone program, just in case anyone ever tries to hold him accountable for strikes that don’t show the appropriate concern for civilian life.

“Oh, those 8 civilians I killed in Jaar?” John Brennan effectively said 15 days before he killed them, “I didn’t intend to or know I was killing civilians. I was conducting strikes against known targets found to present a direct threat to the United States.”

John Brennan gave this speech in the name of transparency. But given that it involved deliberate and obvious obfuscation, it appears to have little to do with transparency and lots to do with self-preservation.

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.

15 replies
  1. What Constitution says:

    John Brennan. The man who had to withdraw his name from consideration as Obama’s head of the CIA precisely because of his association with the Bush torture regime and this rendered him unlikely to receive congressional confirmation to the post. Instead, unreviewably appointed by Obama to the unreviewable position as head of a congressionally (and constitutionally) unauthorized “agency” tasked with assassinating persons deemed unfriendly to the US, wherever they may be located on the planet. What that hell is wrong with this picture?
    http://www.guardian.co.uk/world/2008/nov/25/obama-white-house-cia-brennan

  2. emptywheel says:

    @What Constitution: That was ALWAYS the problem inherent in “czars,” which is why I supported Feingold when he tried to call attention to it.

    There is, right now, nothing to prevent the President from insourcing sensitive programs to the White House, which allows him more direct control and far less oversight. The possibility of waging war out of the White House–always a possibility after Iran-Contra, where this insourcing was (almost) perfected–is the ultimate risk of czars.

  3. What Constitution says:

    There’s a reason for oversight or, more quaintly put, “checks and balances”. Maybe part of that reason is to keep unhinged murderous lunatics away from the button. So the guy in the middle of thinking it’s cool to torture people if they’re “bahd”, who wouldn’t have gotten past Congress to a position “investigating” people who might be “bahd” because of that, is fine for just telling the President they should be murdered instead? A bit like putting Eichmann in charge of post-WWII reconstruction in Poland, isn’t it?

  4. joanneleon says:

    Knowing what we know about signature strikes, that speech was just an astounding lie.

    And now it’s all huddled up in the WH where Brennan and the Obama admin can keep it all zipped up for political reasons and as Marcy says, for self defense. If what they are doing is so legal, why did Brennan have to give this lying by huge honking omission speech and why does it all have to be run from a place that can easily be hidden from the public?

    But the strangest thing is that they admitted to signature strikes at all. Why did they do that? Or was that leaked to the media and not admitted by the admin? I can’t remember exactly but I thought the admin did admit that Obama (through Carney?) admitted to having authorized signature strikes.
    *
    Everyone knows that signature strikes are exactly *not* what Brennan described in that speech. So why is the media not hounding him and Carney every day to amend that speech and make it accurate?

  5. emptywheel says:

    @joanneleon: That wasn’t admitted to by the Admin. I’m sure it was leaked by people who are pissed about them. I think the Miller story (the first one which said they were being considered, which said JSOC hadn’t requested them) was leaked by JSOC. And then the story reporting they had been approved relied on slightly different stories, but also implicated JSOC.

    And the first version of the story saying Brennan had centralized this decision making in the White House also seemed to come from JSOC.

  6. tjallen says:

    I wonder if Brennan is bringing under leash a drone-strike program that was out of control, where local and regional commanders and operatives in service and secret branches were ordering strikes for a variety of tactical reasons, some not supportable. By bringing targeting decisions under White House control, he is actually giving form and guidelines to a previously cowboy program that was going wild and couldn’t be justified.

  7. tjallen says:

    A second point in favor of bringing the targeting decisions up the chain of command is to take advantage of “Too big to fall” – war crime claims against high officials are almost impossible to initiate, in comparison to lowly subordinates, who can be thrown under the bus. They are saying, in effect, if you are going to get someone on war crimes, you’ll have to reach way, way up, amongst the powerful people.

  8. ricksahm says:

    Not “change we can believe in,” … not change, at all. This further supports the idea that nearly all Presidents elected since 1964 have believed themselves to be elected King, not a Constitutional executive.

  9. earlofhuntingdon says:

    The US used to castigate the Chinese government for its abusive communications, in an era when westerners never knew whether something in China was true until it was officially denied; only then it was obviously true. The US has now adopted that method of obfuscation, as it has adopted methods of torture and surveillance once thought to be the exclusive province of wicked foreigners who had rejected America’s unique form of capitalism.

  10. joanneleon says:

    @emptywheel: That is really scary when the JSOC are the moderate ones and are leaking this kind of thing because they think it is too extreme. I suppose there could be other reasons — territorial or something I don’t understand about the dynamics.

    I’m always a few steps miles behind you, Marcy, and then eventually I go “Aha! Now I get it”. Yes, now I am starting to get this whole thing.

    It was interesting, last night, to go back and read this story from Foreign Policy from the end of February:

    A March 2011 strike brought the debate to the White House. A day after Pakistani officials agreed to release CIA contractor Raymond Davis, the agency — again over Munter’s objections — carried out a signature drone strike that the Pakistanis say killed four Taliban fighters and 38 civilians. Already angry about the Davis case, Pakistan’s Army chief, Gen. Ashfaq Parvez Kayani, issued an unusual public statement, saying a group of tribal elders had been “carelessly and callously targeted with complete disregard to human life.” U.S. intelligence officials dismissed the Pakistani complaints and insisted 20 militants had perished. “There’s every indication that this was a group of terrorists, not a charity car wash in the Pakistani hinterlands,” one official told the Associated Press.
    Surprised by the vehemence of the official Pakistani reaction, national security advisor Tom Donilon questioned whether signature strikes were worthwhile. Critics inside and outside the U.S. government contended that a program that began as a carefully focused effort to kill senior al Qaeda leaders had morphed into a bombing campaign against low-level Taliban fighters. Some outside analysts even argued that the administration had adopted a de facto “kill not capture” policy, given its inability to close Bush’s Guantánamo Bay prison and create a new detention system.

    [ … ]

    As Donilon’s review progressed, an intense debate erupted inside the administration over the signature strikes, according to the Journal. Adm. Mike Mullen, then chairman of the Joint Chiefs of Staff, said the strikes should be more selective. Robert Gates, then the defense secretary, warned that angry Pakistani officials could cut off supplies to U.S. troops in Afghanistan. Clinton warned that too many civilian casualties could strengthen opposition to Pakistan’s weak, pro-American president, Asif Ali Zardari.

    [ … ]

    Last November, the worst-case scenario that Mullen, Gates, and Clinton had warned of came to pass. After NATO airstrikes mistakenly killed 24 Pakistani soldiers on the Afghanistan-Pakistan border, Kayani demanded an end to all U.S. drone strikes and blocked supplies to U.S. troops in Afghanistan. At the same time, popular opposition to Zardari soared. After a nearly two-month lull that allowed militants to regroup, drone strikes resumed in the tribal areas this past January. But signature strikes are no longer allowed — for the time being, according to the former senior official.
    http://www.foreignpolicy.com/articles/2012/02/27/the_obama_doctrine?page=full

  11. rkilowatt says:

    Czar, Romanoff, Kaiser, Caesar, Fuhrer, Emperor, King, Royalty—The definers are all quite “ruly”, aren’t they? That is why they suppress the word “ruly”.

    The mob is always unruly, by their definition.

    The definers have the ultimate privilege, namely, being “ruly”. It trumps all lesser privileged.

  12. phred says:

    I’m touched that Brennan still thinks a little ass-covering is in order, given the collapse of the rule of law and all.

    Still, I would have more respect for him if he had the balls to own up to what he is really doing. It’s not like there is anyone on the planet who would even attempt to incarcerate the murderous s.o.b.

  13. LM Lewis says:

    Thank you for your excellent work in tracking developments on this issue.

    With each overseas drone attack, the limits of public acceptance are being tested. If Americans do not object to abuses committed in those countries, one day those abuses will take root at home. Indeed, the drones are already here.

  14. John Washburn says:

    RE: Now that John Brennan is in charge of selecting which patterns of behavior we should target with drones

    *WE* did no such thing, John Brennan and other members of the Bush-Obama regime did. The State is not Society.

    It is Führerprinzip at its worst to think the 350 million individuals are represented by less than 10,000 power mad neo-cons and their drones (both mechanical and biological) within the chain of obedience.

    http://www.youtube.com/watch?v=6NcLNoxiPBk

    We who refuse to obey are not part of the *WE* that targeted people around the world (both US and foriegn born) for death.

    *WE* did not do this. The US Government has or the Bush-Obama regime has, or some other designation that properly identifes the miniscule minorty of US citizens bent on destruction, genocide, and madness did this.

  15. ondelette says:

    So who is piloting the drones? Because the principle of distinction also says that those people must distinguish themselves from civilians as well. Which means they shouldn’t be the CIA.

    None of these paragraphs can be pointed back to as “proof” of anything. In fact, pretty much all of the paragraphs that he puts forward as taking precautions above and beyond those required by international humanitarian law are in fact simply stating what complying with the law comprises, and nothing he says in any way “proves” that they comply, it just states what they are supposed to do. Doing it is another matter and would require him to provide evidence.

    Bedrock is that distinction is a two-part principle, not a one part principle and that has a huge bearing on the CIA operating drones, and that for someone affiliated with al Qaeda to be a lawful target, they need to be directly participating in hostilities either immediately or by function.

    It’s now been a year since Hillary Clinton promised that the Obama Administration would push Additional Protocol II through the Senate for ratification. How about a progress report?

    It’s high time we stopped having lectures on the law of armed conflict from an intelligence community that isn’t supposed to be a party to armed conflict but seems to be the ultimate “overseas entity that was capable of conducting operations or activities of assistance to the U.S. foreign policy goals that was a ‘stand-alone,’ it was self-financing, independent of appropriated monies and capable of conducting activities similar to the ones that we had conducted here.”

    After all, that about describes the organization that can’t be talked about in court, in the news, in Congress, or anywhere else, that sees fit to lecture us on laws it has no intention of obeying and no intention of allowing us to know whether it’s obeying, that we must fund without knowing we’re funding, and can screw things up for us and we’re not allowed to ask why.

    No one is required to believe that John Brennan is following international law just because he can quote it, least of all when he quotes a principle that everyone knows he is breaking from the get-go.

    (the quote is Oliver North to Arthur Liman, Iran-Contra Hearings, 1987)

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