Brennan Hearings: What is the Legal Basis for Drone Targeted Killings?
Friday, February 8, 2013
ACTIVIST: You are betraying democracy when you assassinate suspects! You are a shame to democracy when you [crosstalk]
SEN. DIANNE FEINSTEIN (D-CA), CHAIR, SELECT COMMITTEE ON INTELLIGENCE: If the Capitol police will clear the room, please. Please clear the room.
PAUL JAY, SENIOR EDITOR, TRNN: Welcome back to The Real News Network. And welcome to this week’s edition of The Ratner Report with Michael Ratner, who now joins us from New York City.
Michael’s the president emeritus of the Center for Constitutional Rights. He’s also chair of the European Center for Constitutional and Human Rights in Berlin. He’s also a board member at The Real News.
Thanks for joining us again.
MICHAEL RATNER, PRESIDENT EMERITUS, CENTER FOR CONSTITUTIONAL RIGHTS: Good to be with you, Paul.
JAY: So the Brennan hearings happened on Thursday. And I was taken with one thing that sort of jumped off the page for me. Right off the bat, the chair, Dianne Feinstein, starts saying that we just gotâ€”I think it was last night, she says, and then one of the other members of the committee later says the same thingâ€”documents that are supposed to provide the legal basis for the targeted killings under the drone program.
FEINSTEIN: We received this morning an Office of Legal Counsel opinion on the topic. Actually, we received a short one and a long one.
SEN. RON WYDEN (D-OR): It was encouraging last night when the president called and indicated that effective immediately he would release the documents necessary for senators to understand the full legal analysis of the president’s authority to conduct targeted killing of an American. What the president said is a good first step towards ensuring the openness and accountability that’s important, and you heard that reaffirmed in the chair’s strong words right now. Since last night, however, I have become concerned that the Department of Justice is not following through with the president’s commitment just yet. Eleven United States senators asked to see any and all legal opinions. But when I went to read the opinions this morning, it is not clear that that is what was provided.
JAY: So if I’m understanding this correctly, for the last four years this drone program’s been going on, President Obama, and for quite some time with John Brennan himself, has been sitting down deciding who gets killed, and it’s just now they get these documents to explain the legal basis. And number two, the senators are already complaining they can’tâ€”their staff aren’t allowed to read the documents and they can’t make sense of them. So if I’m understanding this correctly, then what the heck is this committee do?
RATNER: It’s a good question, Paul. I mean, we’ve been litigating this issue for a number of years now. The center for constitutional rights and the ACLU represents the family of Anwar al-Aulaqi, as well as Rahman al-Aulaqi, who were killed by drones in Yemen. As part of that lawsuit, we’ve asked for the documents. The ACLU has a separate lawsuit asking for the documents that justify or make, you know, the arguments legally about the killing.
And the question is: where has the intelligence committee been, that very intelligence committee that has just held the Brennan hearing? And why haven’t they demanded the documents? Instead, you know, two hours or six hours before John Brennan testifies in front of that committee in his efforts to become the CIA head, they then drop these documents on the committee. They obviously can’t read them fast enough to ask any questions, and the documents aren’t being allowed to go to the analysts for the senators, so they can’t even understand them because they’re legalese.
WYDEN: And moreover, on this point with respect to lawyers, I think what the concern is is there’s a double standard. As the national security adviser (and you volunteered, to your credit; you weren’t a lawyer), you asked your lawyers and your experts to help you. And we’re trying to figure out how to wade through all these documents. And one of the reasons I’m concerned that it’s not yet clear that what the president committed to has actually been provided.
RATNER: So it does make you question: is this intelligence committee really just a facilitator, essentially, for the drone policy or other policies that the Obama administration has been carrying out? So I think that’s a big factor.
I think now that some of these documents are being dropped on the committee, hopefully we, you and I, will get to see them, because once they get spread fairly broadly they may either leak out or the administration may decide, hey, maybe the legal analysis should not be classified, because after all, it’s just a legal analysis. And the administration itself has been bragging about its drone program for a long time and leaking information about it.
JAY: This is what boggles the mind. If it’s the legal analysis, then certainly that belongs in the public domain. How can the legal basis of killing people be secret? And that’s not what the senators are saying. Like, they were sayingâ€”well, they’re complaining, our staff can’t see it. But the implication is, our staff could be trusted also not to make it public.
RATNER: It is amazing. I mean, it is the legal analysis, and civil libertarians, and have others, has been screaming for it for a long time, because how can it be that the president can assign an American citizen, or a noncitizen, to death by drone outside a war zoneâ€”in Yemen, in Somalia, conceivably in Mali and Libya? How can the president simply say, I’m making up the kill list with John Brennan, this guy who is now going to become, apparently, the head of the CIA, and not give the legal analysis of how the president can make the decision? What’s his legal authority to do that?
JAY: And one of the questions that was asked there that Brennan does not disagree with the underlying assumption is that it could also be in Baltimore. I mean, one of the senators says specifically this could include the United States, and Brennan certainly doesn’t disagree with it.
WYDEN: 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 respect 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.
JOHN BRENNAN, CIA DIRECTOR NOMINEE: The Office of Legal Counsel advice establishes the legal boundaries within which we can operate. It doesn’t mean that we operate at those outer boundaries. And, in fact, I think the American people would be quite pleased to know that we’ve been very disciplined and very judicious, and we only use these authorities and these capabilities as a last resort.
RATNER: This could be anyone anywhere in the worldâ€”in the United States, an American citizen, a noncitizen, anywhere.
And what for me as a human rights lawyer, as a lawyer who works on military issues a lot, the idea that you can actually assassinate or kill someone outside a war zone based on the criteria that we know so farâ€”and I think it’s important for people to understand we do have one of the summaries of one of the memos that was released, the 16-pageâ€”it wasn’t released, but it got leaked out, presumably maybe released, a 16-page memo that tries to give the circumstances under which they can assassinate American citizens or others.
And when you read those, you realize that what we’re dealing with is an unconstitutional, an illegal program under both our law, as well as international law, because we’ve always argued that, yes, there may be a circumstance in self-defenseâ€”. If I have my finger on a button, I’m about to launch a missile onto the United States, that yes, and there’s no other way to take me out, there’s no other way to arrest me, that you may have a right in that circumstanceâ€”imminent, specific, concrete, and no other way to get meâ€”you may be able to do something to stop me, including kill me. That’s a self-defense argument.
But the memo we have so far goes much broader than that. It takes the word imminence and it said, we’re going to give a broader definition to imminence. It doesn’t mean that the person is immediately going to do something; it means that in the past they may have done something or they’re a highâ€”and they’re a high-ranking person in al-Qaeda or an associated force, and that gives us the right to kill them.
I mean, that’s crazy. There’s no legal doctrine that allows that. That’s not self-defense; that’s just saying, we think this person may in the future commit an act against the United States, and therefore we’re going to kill him. And it’s extending, it’s taking the Bush argument that we’re fighting a global war on terror, and it’s confirming that. It’s saying that this war’s not only in Afghanistan, this isn’t just in Iraq; this is in Yemen, this is in Somalia, this may be in the U.K., this may be in the United States; and therefore, under that global concept of war on terror everywhere, we can kill whomever we want, whoever we think is dangerous.
And so what I see here is not just a lack of information that we’re getting about this, but ultimately the policy underneath is a horrible policy and one that is utterly illegal. And the problem for me with a guy like Brennan standing there, Brennan sitting there, is Brennan, whoever he isâ€”and we can talk about thatâ€”is going to be implementing a policy that is utterly and completely illegal in my view and in the view of many, many other legal scholars.
JAY: Thanks very much for joining us, Michael.
RATNER: Thank you, Paul.
JAY: And thank you for joining us on The Real News Network.
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