Toward the end of the February 7 confirmation hearing for CIA director John Brennan, Senator Jay Rockefeller praised the nominee’s performance. “I’ve been through a whole lot of confirmation hearings in 28 years here,” the West Virginia Democrat said, “and I quite honestly do not recall anybody who was more forthright, more direct, more accommodating.”
Sad if true, because Brennan’s testimony was anything but forthright, especially on the subject of the president’s purported power to order the deaths of suspected terrorists. Consider Brennan’s response when Senator Ron Wyden asked what “needs to be done to ensure that members of the public understand more about when the government thinks it’s allowed to kill them.” The Oregon Democrat focused on two issues: how much evidence is required to conclude that someone is eligible for death by drone, and whether the president’s license to kill is valid within the United States. “What we need to do,” Brennan replied, “is optimize transparency on these issues but at the same time optimize secrecy and the protection of our national security.”
It is this kind of maddening evasiveness that provoked the filibuster staged by Senator Rand Paul a month later. The Kentucky Republican refused to let Brennan’s confirmation proceed until the Obama administration deigned to address his questions about its “targeted killing” program. Although the response he finally elicited from Attorney General Eric Holder left many issues unresolved, the episode called much-needed public attention to President Obama’s startling claim that he has the authority to kill people he unilaterally identifies as America’s enemies.
In letters to Brennan, Paul posed dozens of questions about targeted killings, including requests for basic information such as the number of countries where they have occurred. But in the March 7 letter to Paul that the senator cited when he declared “victory” and ended his filibuster, Holder chose to answer just one of those questions: “Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” Holder said, “The answer to that question is no.”
It is a measure of how slippery the administration has been in dealing with this issue that White House press secretary Jay Carney felt it necessary to clarify that “the issue here isn’t the technology,” because “whether the lethal force in question is a drone strike or a gunshot, the law and the Constitution apply in the same way.” Carney did not address the question of whether American citizenship is a prerequisite for protection against summary execution in the United States — a claim that would be hard to defend, since the Fifth Amendment says “no person” shall be “deprived of life, liberty, or property, without due process of law.” Nor did he explain what it means to be “engaged in combat.” For good reason, it turns out. The Obama administration maintains that individuals it identifies as members or allies of al-Qaeda are engaged in combat even when they are driving down the street or sitting in their homes, far from any active battlefield. So “engaged in combat” is not the same as “posing an imminent threat.”
Neither is “posing an imminent threat” the same as posing an imminent threat, according to the leaked Justice Department white paper on targeted killings that was published by NBC News in February. The white paper describes circumstances in which “it would be lawful for the United States to conduct a lethal operation outside the United States against a U.S. citizen who is a senior, operational leader of al-Qa’ida or an associated force of al-Qa’ida.” One condition: “An informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” But as the paper goes on to explain, “the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”