On the eve of confirmation hearings for John O Brennan − President Obama’s counter-terrorism adviser and proposed CIA Director − the White House instructed the Department of Justice to share classified documents that justify its drone programme with two congressional Intelligence Committees. Despite its long track record of evasions on this issue, the administration has presented the decision as a belated invitation to Congress to work towards developing a legal framework on “targeted killings.” But it is hard not to notice how the information will help shield Mr Brennan – the official most closely identified with the drone programme – in his hearings, and that it will offer timely concessions to a bipartisan group of senators who have raised embarrassing questions about lack of transparency around the programme, especially since its ‘targets’ have included American citizens.
Last week a 16-page US Department of Justice “white paper” on targeted killings was released via NBC news. It gave some indication of the sort of legal advice that the administration has gone to such lengths to conceal. The memo (dramatically entitled: ‘Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force’) acknowledges “the extraordinary seriousness of a lethal operation by the United States against a US citizen” but then does its best to conflate allegations of terrorism with the sort of considered verdict US citizens are normally guaranteed by due process.
Commenting on the sinister legal sleight of hand in the memo, the Guardian columnist Glenn Greenwald points out that, “The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo − and those who defend Obama’s assassination power − wilfully ignore it.” Greenwald asks his readers to consider the merits of a system in which “The president’s underlings compile their proposed lists of who should be executed, and the president … chooses from ‘baseball cards’ and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.”
Nine years ago, in a candidates’ debate in South Carolina, John Kerry argued that the US battle against al-Qa’ida and its allies was “primarily an intelligence and law enforcement operation that requires cooperation around the world.” At the time Kerry’s analysis directly contradicted the grandiose ambitions of President Bush and Vice-president Cheney’s “global war on terror.” The Bush-Cheney strategy turned on the idea that wars were no longer confined to neat theatres and that, accordingly, the president should be granted the power to deploy American force wherever and whenever he saw fit. The catastrophic outcomes of this arrogant policy eventually exposed its intellectual and moral bankruptcy, but many of the powers Vice-President Cheney acquired for the executive have proved too tempting for the new administration to pass up.
The Obama administration’s attitude towards its drone programme has been disquietingly similar to the previous administration’s cloak and dagger concealment of its torture policy. Recently declassified documents clearly show that the Bush White House knowingly used its Office of Legal Counsel to create a highly questionable legal architecture for ‘enhanced interrogations.’ The now notorious OLC memos gave the Bush administration both legal cover and a specious moral high ground that allowed its officials to trump critics of the new policy, despite the fact that many who spoke out against torture had firsthand knowledge of its deployment in Afghanistan, Guantanamo and at CIA black sites in several other countries.
President Obama came into office promising a return to the rule of law but he has yet to distinguish himself from his predecessor when it comes to the use of secret memos to pursue questionable counter-terrorism initiatives. As with the use of torture, the United States cannot expect to have it both ways. Having embraced torture, it cannot expect less democratic states not to follow its lead. And after adopting drones that strike human ‘targets’ at the president’s behest, and without due process even if they are American citizens, it can hardly complain when other countries show equal contempt for the norms of international law.
