President Obama entered office with the promise of greater transparency and great disdain for what he claimed to be a highly secretive Bush Administration. Since taking office however, this promise ranks among the top of his many failed promises. In the current debate over the confirmation of John Brennan as the next CIA Director Obama's decision to keep classified legal analyses of the use of drone aircraft against U.S. citizens engaged in terrorism abroad makes no sense at all.
In the end Brennan should and will likely be confirmed. As a 25-year CIA veteran he understands the Agency's needs and has the insight needed to guide it on a path toward improved analysis in an increasingly difficult and uncertain world. While many at CIA saw David Petraeus as moving the Agency too far toward being a para-military organization, Brennan has promised to restore more of a balance between clandestine operations and analytic functions.
Brennan's critics see him facing tough Senate questions over the increasing use of drone strikes in the war zones of Iraq and Afghanistan as well as in Yemen and elsewhere where terrorist groups such as al Qaeda have been active and are increasingly on the rise. As the president's counterterrorism adviser Brennan certainly had a major hand in the increasing number of drone strikes and the choice of targets against terrorists. Presumably Brennan can face his critics with some equally tough answers. Certainly the number of people killed abroad as a result of these attacks has gone up, as the London Bureau of Investigative Journalism reports from 3,000 to 4,500, but the loss of American and allied lives saved is likely several times this number. At the same time other studies of collateral damage and casualties among innocents show that these losses have been exceedingly low.
There is no need for Brennan to shirk from the fundamental realities of the world today. Both Bush and Obama have been faced with regional conflicts involving terrorists and other non-state actors that required an approach utilizing both conventional forces and newer technologies such as armed drones. As a practical matter drones are far cheaper than manned aircraft; capable of use in a high treat environment; and not a single pilot has been lost -- as drone "pilots" are far from harm's way.
Yet liberal legal scholars, all of whom likely supported Obama, are now having a field day over the Brennan nomination and the recent Justice Department white paper. Writing in today's New York Times Professor Mary Ellen O'Connell asserts that the United States is involved in a "true armed conflict only in Afghanistan" while drone strikes have been carried out in Yemen, Somalia and Pakistan. The claim that none of these nations have attacked America is true, but neither has Iraq or Afghanistan and making this type of artificial legal distinction is largely nonsense.
Wrapping the argument in the rhetoric of human rights law and international humanitarian law fails to address the fundamental problem of increasing extremist threats in a number of regional states. While criticizing Bush for every ill imaginable, Obama has not repudiated the 2001 Authorization for the Use of Military Force (AUMF) or the subsequent Bush Doctrine. To the extent Brennan has acted to implement what is now long-standing policy against America's enemies and those who seek to kill Americans by whatever means possible from a number of foreign nations he has nothing to hide from or apologize for.
The stupidity in all of this lies not in the authorization of targeted killings abroad to ultimately save lives, but in failing to make openly available the legal analyses supporting these operations. There is simply no serious excuse to hold these as state secrets. Presumably they contain no military plans or reveal intelligence sources and methods. If the unclassified, leaked white paper provided by NBC is any example, it is just that -- a legal memo with various points and authorities supporting a plan of action. It is highly unlikely that release of the 2010 classified memorandum supporting this white paper would cause any grave damage to the national security of the nation -- the specific criteria for its classification under Obama's own Executive Order 13526.
Critics are right in pointing to the example of an earlier legal memo from the Justice Department's Office of Legal Counsel on the Bush enhanced interrogation program -- the so-called "torture memo" which began as a classified document and subsequently released. In the open, the memo provided the basis for a rational debate over CIA's now discontinued methods of enhanced interrogation. Indeed, Harold H. Koh, then Dean of the Yale Law School and now the State Department Legal Adviser, was one of the nation's leading critics of this memo and the reasoning it contained. He is often quoted as saying it was "perhaps the most clearly erroneous legal opinion I have ever read" and at the time he was joined by other prominent legal scholars in this opinion.
There is nothing entirely secret about the use of drone aircraft overseas by CIA and the launching of Hellfire missiles against suspected terrorist targets. It is also the case that their use against a small number of Americans abroad directly involved in terrorist activities, with authorization from the highest authorities, has taken place. The targeting of U.S. citizen Anwar al-Awlaki has already been the subject of extensive press coverage and litigation.
Whether or not there is a sound legal basis for the use of drone aircraft targeting U.S. citizens abroad in this manner is a reasonable subject for debate among legal scholars, the press and the public. To the extent that the Obama Administration engages in such actions, and believes that it has sound legal authority to do so, it does itself no good in withholding the supporting legal arguments from open scrutiny.
Liberal critics who claim that "outside of armed conflict zones, the killing of innocent bystanders cannot be tolerated" have both an antiquated notion of what constitutes a conflict zone in the modern world, as well as an unrealistic concept of warfare whereby collateral damage among innocent bystanders can be totally avoided. Taking refuge in a search for an immediate lethal threat that would justify targeted killings fails miserably to appreciate that this isn't the "shootout at the OK corral" any more and that now lethal threats develop and evolve from terrorist groups now in places like Yemen and elsewhere. Waiting in lower Manhattan for them to arrive again is a largely unrealistic human rights vision that flies in the face of reality. It's bad enough that this vision has become the mantra in most of the nation's leading law and public policy schools but the real world just doesn't work that way.
The critics do have it right that "secret law" is an oxymoron. Rule of law is the basis for our democracy, and the Obama Administration should get it all out on the table as Brennan faces his critics for his own day in court. He has the answers, and having the legal briefs openly at his side can only help.