Yesterday I noted that President Obama has not acknowledged any geographic limit on his purported power to kill people he believes to be members or allies of Al Qaeda, although in practice his administration has treated suspected terrorists within the United States as criminal defendants rather than enemy combatants. At yesterday's confirmation hearing for John O. Brennan, the counterterrorism adviser Obama has picked to run the CIA, Sen. Ron Wyden (D-Ore.) had the following exchange with Brennan:
Wyden: I'm also convinced there are parts of drone policy that can be declassified consistent with national security, and I hope that you will work with me on that if you are confirmed.
Let me ask you several other questions with regard to the president's authority to kill Americans. I've asked you how much evidence the president needs to decide that a particular American can be lawfully killed and whether the administration believes that the president can use this authority inside the United States. In my judgment, both the Congress and the public need to understand the answers to these kind of fundamental questions.
What do you think needs to be done to make sure that members of the public understand more about when the government thinks it's allowed to kill them, particularly with respect to those two issues, the question of evidence and the authority to use this power within the United States?
Brennan: I have been a strong proponent of trying to be as open as possible with these programs as far as our explaining what we're doing. What we need to do is optimize transparency on these issues but at the same time optimize secrecy and the protection of our national security. I don't think that it's one or the other. It's trying to optimize both of them. And so what we need to do is make sure we explain to the American people what are the thresholds for action, what are the procedures, the practices, the processes, the approvals, the reviews?
The Office of Legal Counsel advice establishes the legal boundaries within which we can operate. It doesn't mean that we operate at those…boundaries. And in fact, I think the American people would be quite pleased to know that we've been very disciplined, very judicious and we only use these authorities and these capabilities as a last resort.
It is striking that Brennan, who just before this exchange complained that people "are reacting to a lot of falsehoods" about Obama's "targeted killing" program, did not take this opportunity to declare that the president does not think he has the authority to order the summary execution of suspected terrorists within the United States. Is that a secret too?
You might surmise from the scenario described in the Justice Department white paper that was leaked this week—a senior, operational leader of Al Qaeda or an allied group who poses an "imminent threat" and whose capture is "infeasible"—that targeted killings within the United States are out of bounds. But the white paper itself makes it clear that there may be other circumstances where killing an American citizen is OK. There clearly are other circumstances where killing foreigners is OK.
Brennan's idea of open and transparent government boils down to this: Trust us. That is what he means when he talks about explaining "the procedures, the practices, the processes, the approvals, [and] the reviews" that precede one of the president's death warrants. Once people understand the "extensive process" that's involved—behind closed doors and entirely within the executive branch—they will stop worrying about the Fifth Amendment and go back to their reality shows. The one thing Brennan and his boss adamantly refuse to discuss is the evidence that leads them to convict someone of a crime punishable by death. You just have to take their word that in any given case they have plenty.
The New York Times reports that Sen. Dianne Feinstein (D-Calif.), who chairs the Senate Select Committee on Intelligence (which held yesterday' s hearing), "said she would review proposals to create a court to oversee targeted killings." Yet Feinstein herself does not seem to think any sort of judicial review is necessary:
She defended the agency's record on the strikes, saying the number of civilians killed each year has been "in the single digits." A reporter pointed out that she has accused the agency of lying for years about its interrogation program and asked how she could have such confidence in its claims on casualties in the drone program. "I am confident of those figures until I am not confident of them," she said.
That's not terribly reassuring, especially coming from a legislator who is still confident that banning barrel shrouds will stop mass shootings. The Bureau of Investigative Journalism counts hundreds of civilians killed by U.S. strikes in Pakistan, Yemen, and Somalia during the last decade, which casts doubt on Feinstein's claim that the annual toll is "in the single digits." More to the point, Feinstein simply assumes that the people who are deliberately killed by drones had it coming—the very claim that due process is supposed to establish.