(CNN) -- Four years ago, John Brennan
withdrew from consideration for C.I.A. director because of his
leadership role there while serious human rights violations were
occurring, including waterboarding and secret detention. Mr. Brennan has
said he regrets these practices. Yet he moved from the CIA to the White
House, where he began to support a practice many consider worse than
torture: targeted killing.
Brennan has been a champion and defender
of attacks by C.I.A. drones that have killed thousands of people,
including hundreds of children, far from any battlefield. These killings
have occurred in Pakistan, Somalia and Yemen. Defense Secretary Leon
Panetta has recently said the killing is likely to expand to Libya, Mali
and Nigeria.
Panetta, Brennan and others in the Obama
administration defended these lawless killings the same way the Bush
administration justified the unlawful treatment of detainees. Officials
in both administrations have sought to win public support and overcome
opposition by repeatedly asserting that what they are doing is effective
and lawful. The tactical parallels are striking.
To create an illusion of legality, both
administrations coined new labels for unlawful practices. President
Bush's people coined the term "enhanced interrogation methods" to
describe torture, and are still asserting that waterboarding is not
torture but an effective, necessary tool to keep the country safe.
Brennan unveiled the phrase "hot
battlefield" in a speech at Harvard Law in September 2011. A "hot
battlefield" is the type found in traditional armed conflicts, where
enemy fighters are killed without warning and it is permissible to also
kill civilians, as long as their deaths are unintentional collateral
damage and not disproportionate to the military objective.
The CIA is killing civilians away from
"hot battlefields," but according to Brennan, there are other types of
battlefields that are not "hot" but nevertheless lawful places to
intentionally kill targets and unintentionally those nearby.
The parallels between the two administrations do not end with fabricated terminology. Lawyers in the Justice Department's Office of Legal Counsel in both administrations have written secret memos apparently analyzing the legality of these troubling practices. After the memos were written, waterboarding continued during the Bush administration. President Obama finally ended it with an executive order signed within days of his first inauguration. Guantanamo, however, stayed open, and targeted killing continued. We can safely assume that the memos conclude the United States may lawfully carry out such practices.
It is surprising to me that anyone feels
the need to actually see these secret memos. International law clearly
makes waterboarding, secret detention and targeted killing away from
battlefields unlawful. The fact these practices have continued after the
writing of the memos demonstrates the analysis is window dressing.
The New York Times and the American
Civil Liberties Union, among others, have committed significant
resources to obtaining the memos on targeted killing. It would, of
course, be interesting to compare the specious arguments and omissions
that must characterize these memos with those released by the Bush
administration on interrogation and detention. Some citizens might
actually need to see the memos to finally demand an end to the practice.
The greater importance of the secret
memos does not concern what they contain, but the fact our democratic
government believes legal analysis can be secret -- that how the
government understands the law that regulates its conduct need not be
made public. The judge in a recent case who ruled the memos might
lawfully remain secret has confused the facts of a particular case with
the law. Facts about particular operations can be kept secret, but not
the law on which such operations are based. If the police seek a
warrant, for example, in some cases the identity of a particular person
sought under the warrant may be kept confidential. The law mandating the
need for the warrant is public.
Game playing with the law does not
amount to effective counter-terrorism strategy. Brennan admitted as much
in his Harvard speech:
"I've developed a profound appreciation
for the role that our values, especially the rule of law, play in
keeping our country safe," he said. "It's an appreciation, of course,
understood by President Obama. ... That is what I want to talk about
this evening: how we have strengthened, and continue to strengthen, our
national security by adhering to our values and our laws."
The CIA needs someone who will do what Brennan says, not what he does.
No comments:
Post a Comment