Justifying government overreach: Brennan’s confirmation, partisan politics and america’s secretive security state

Matthew Wolfson
March 24, 2013

On February 7, 2013, John O. Brennan, President Obama’s nominee for  CIA director, appeared before the Senate for his confirmation hearing,  his shock of receding white hair and sharp red tie framed by a  protestor’s sign behind him reading “US Citizen Age 16 Killed by  Drones.” In his introductory remarks, Brennan summed up the national  security challenges facing the United States in terms that, coming from  the mouth of the President’s Chief Counterterrorism advisor, might  appear somewhat wishful: “What we need to do is optimize transparency on  these issues, but at the same time, optimize secrecy and the protection  of our national security.” Yet notwithstanding this initial nod toward  the possibility of reconciling probably irreconcilable values, Brennan’s  responses before, during and after the hearing suggested that his  definite inclination was to “optimize secrecy” at transparency’s  expense.

The White House allowed senators preparing for the hearings to view  two of the ten requested legal memos detailing the targeted killing  program Brennan has overseen for four years. In testimony, Brennan was,  according to The New York Times, “noncommittal” about a  suggestion that nudged toward limited transparency, namely that a secret  committee be set up to oversee these killings. And in a post-hearing written exchange  with senators, in response to the fairly unequivocal question “could  the Administration carry out drone strikes inside the United States?”  his chillingly equivocal reply was that “this administration has not  carried out drone strikes inside the United States and has no intention  of doing so.” In response to the logical follow-up, (“Could you describe  the geographical limits on the Administration’s conduct of drone  strikes?“), Brennan commented that “we do not view our authority to use  military force against al-Qa’ida and associated forces as being limited  to ‘hot’ battlefields like Afghanistan,” effectively leaving open the  issue of whether or not any limits exist.

These last responses, as might be expected, made at least minimal waves. Republican Senator Rand Paul sent Brennan a letter  asking directly whether “you believe that the President has the power  to authorize lethal force, such as a drone strike, against a US citizen  on US soil, and without trial?“ and promising to delay confirmation  until the nominee answered. But what was more interesting, and  problematic, was the degree to which this issue—of the government  seizing apparently unlimited theoretical power to target its  citizens—did not surface within mainstream debate in the United States.  Nicholas Mulder has written  compellingly in these pages of the dangers posed by the secretive and  technologically sophisticated security apparatuses that western  democracies, in particular America, have constructed to protect their  citizens from terrorism. The fact that in many cases these dangers are  not receiving serious public attention raises further questions: how and  why are democratic citizens either ignoring national security issues or  talking about them in ways that prevent rational assessment?

It seems difficult not to sympathize with Glenn Greenwald’s contention,  specifically in reference to Brennan’s confirmation, that absence of  serious public debate shows something about the state of “degradation”  of modern “political culture”. But reflexive moralism, however  understandable, does not quite get to the heart of the larger problem  here, which has to do with democratic societies’ public spheres and the  way security policy and domestic politics intersect within them. In  fact, developments in American counterterrorism policy during the  Obama/Brennan years provide an interesting case study of this  intersection of the demands of partisanship and protection, and of some  of its plausible consequences.


On a basic psychological level, national security is difficult to  discuss rationally in America because it presents an apparently skewed  choice. On the one hand, there’s the prospect of collective threats with  immediate consequences that since 9/11 have been easy to visualize. On  the other, there are questionable preventative measures that tend to  affect people on society’s margins, with consequences that only become  apparent over the long-term. Concretely put, it’s difficult to see the  broader negative implications of killing without trial Anwar al-Awlaki, a  U.S. citizen living in Yemen who was a prominent member of al-Qaeda  there. And it’s even easier to grant the state latitude when the targets  are not Americans and thus not subject to the legal protections our  government affords its citizens. These targets are of course the  numerous al-Qaeda affiliates in the Middle East and North Africa who  appear to run the gamut from petty Somali pirates to jihadists and who,  to most Americans, remain entirely unknown quantities.

When these are the victims of government overreach, the question  Brennan refused to answer regarding killing Americans on American soil  comes to seem a reductio ad absurdum—a theoretical stretch in a  conversation for realists. After all, having a drone strike your house  is much harder to imagine than the prospect of stepping onto the New  York subway on the day that a homegrown jihadist sets off a shoe bomb.  But this veneer of common sense, driven as it is by fear, is misleading  and, over time, actually dangerous. It makes the question of national  security uniquely vulnerable to sentimental oversimplification and thus  an easy marker to be deployed in the pursuit of domestic political  advantage. This is what President Obama found out the hard way during  his first two years in office, when he attempted to move toward a more  liberal, transparent counterterrorism policy. Obama’s early experiences  in the domestic political arena explain a great deal about how his  Administration reached the point where it effectively functions as an  inhibitor to adult public discussion about national security.

Obama initially made good on many of his promises to roll back the Bush Administration’s extralegal policies. As David Cole summarizes,  he shut down secret CIA prisons, prohibited “enhanced interrogation  techniques,” released previously classified Justice Department memos  that had authorized torture and cruel treatment, and proclaimed that his  authority was limited by the scope of Congress’s Authorization to Use  Military Force. Most astonishingly, when in 2010 “a panel of the US  Court of Appeals for the D.C. Circuit ruled that the president’s  authority to detain was not bound by the laws of war, the Obama  administration took the extraordinary step of arguing that the court had  granted it too much power,” arguing that “the president’s authority is  indeed constrained by the laws of war.”

But political problems quickly arose over two issues. Obama decided  to try Khalid Sheikh Mohammed (known ubiquitously in the media as KSM),  the mastermind of 9/11, in civilian criminal court, and he tried to  close Guantanamo by relocating prisoners to the United States mainland.  Both were decisions that hinged not just on moral considerations, but  also on pragmatic concerns of legitimizing the United States’ policies  to the rest of the world and minimizing fodder for militant recruitment.  In other words both decisions turned on the calculation of the  potential long-term security advantages of a more transparent  counterterrorism policy. But of course it’s easier to imagine stark  short term drawbacks to this long-term game, however implausible (like  the jury acquitting KSM, or relocated prisoners in a Vermont prison  breaking free of their chains.) This makes the problem a dangerously, if  understandably, emotional one, and potentially toxic politically.  Predictably, Republican commentators and congressman eager for  ammunition to lodge at the new President, with the help of Democrats  afraid of being caught defending a no-win issue, played on this fact  with honed adroitness and typical fervor.

Representative Frank Wolf of Virginia sounded the alarm on the floor  of the House of Representatives when he ardently objected to the  proposed relocation to his district of two Chinese Uighurs—this despite  the fact that they were not terrorists and had been determined to pose  no immediate threat. (Democratic Senator Harry Reid added nuance to this  conversation by helpfully noting of the Uighurs “we don’t want them  around.”) Similarly, Massachusetts Republican senatorial contender Scott  Brown painted the Administration’s decision to try KSM in civilian  courts into his TV spots in the following broad strokes: “Some people  believe our Constitution exists to grant rights to terrorists who want  to harm us. I disagree.” This despite the fact that federal courts have  successfully convicted over two hundred defendants on terrorism charges  since September 11, unlike military courts, which are relatively  unpracticed at this sort of thing. And despite the fact that Justice  Department prosecutors had obtained new evidence, gained not through  torture but through recordings of prison-yard conversations in which KSM  admitted his role in the attacks, which made conviction a near  certainty.

Objecting to Obama’s proposal was reasonable, but neither the  objections made nor the surprised Administration’s responses were  predicated on analyzing different priorities and deciding on the best  available option. Instead they obscured the underlying choices involved  beneath a comforting veneer of homespun commonsense, for example Reid’s  “we don’t want them around.” The Administration, unsurprisingly, ended  up retreating from both positions, and cordoned off further attempts at  transparency when it came to counterterrorism policy. There seemed  little to be gained from discussing the issues openly, and a great deal  to lose.

In fact, over time, Obama learned to not only keep national security  issues close to the vest but to use them to his rhetorical advantage.  This was especially evident when it came to drone strikes, the most  controversial and aggressively used new executive power. The initial  reports in The New York Times in May 2012 that brought the  dynamics of the program Brennan oversaw to broader public awareness  appear to have been leaked by the Administration. Well-timed to offset  any impending Republican charges of national security weakness during an  election season, the leaks paint a cumulative picture (of a chief  executive balancing the burdens of reason of state with those of  morality) that is nicely tuned to the emotional frequencies of the Times’ centrist and left-leaning readers.

The article’s  obliging title was “Secret ‘Kill List’ Proves a Test of Obama’s  Principles and Will”. It characterized the President as both tough (“His  view is that he’s responsible for the position of the United States in  the world,” National Security Advisor Thomas E. Donilon is quoted as  saying, “He’s determined to keep the tether pretty short.”) and  contemplative (“A student of writings on war by Augustine and Thomas  Aquinas” who “believes that he should take moral responsibility for such  actions.”) Brennan was similarly described in terms culled from  television procedural and medieval tableau: “variously compared by  colleagues to a dogged police detective, tracking terrorists from his  cavelike office in the White House basement, or a priest whose blessing  has become indispensable to Mr. Obama, echoing the president’s attempt  to apply the ‘just war’ theories of Christian philosophers to a brutal  modern conflict.”

These are the tropes of reasoned resolve dear to the hearts of tough  minded liberals, much as Bush’s “cowboy diplomacy” resonated with the  particular proclivities of his base. It is also not accidental that  Christian moralism (Brennan as “priest,” Obama as a “student” of  Augustine and Aquinas bent on applying “theories of Christian  philosophers to a brutal modern conflict”) should be employed with such  frequency. From Alexander Hamilton writing in The Federalist to  George W. Bush, Christianity, with its twin emphases on faith-based  infallibility and good-evil dualism, has provided convenient rhetoric  for justifying executive prerogative in protecting the state.

All of this makes for an alluring image, and a dangerous one, in that  its cinematic force tends to overwhelm the less theatrical but  nonetheless important voices of dissent. The most noticeable of these  voices in the Times piece was former Ambassador to Pakistan  Cameron Munter, who “complained to colleagues that the C.I.A.’s [drone]  strikes drive American policy there, saying ‘he didn’t realize his main  job was to kill people.’” This view, hazarded by a man closer than those  in the White House to the conflict’s front lines, would seem worthy of  more sustained consideration than the Times apparently felt able to indulge.


There are clearly diverging views among people like Munter, Brennan  and others as to the frequency with which the Administration should use  drones and the degree to which the executive’s prerogative should be  constrained when responding to possible threats to national security.  What remain less clear are the facts with which to mediate these  diverging views. This is because the administration, chastened by early  setbacks on an issue that seems to offer no clear political “win”, has  consistently opted for secrecy over transparency, and papered over the  absence of information with rhetoric. Hopefully public pressure for  greater transparency will begin to increase, not simply from advocacy  groups but also from Congress, in which members of a Republican party  increasingly concentrated around libertarian principles might ally with  civil libertarians on the other side of the aisle.

The trajectory of Brennan’s hearings pointed, however briefly, in a  promising direction. Rand Paul—having received a reply to his letter to  Brennan from Attorney General Eric Holder asserting that under  “extraordinary circumstances” the government could use drone strikes  within the United States—made good on his word to block Brennan’s  nomination. To publicize the issue, Paul took to the floor of the Senate  for a 12 hour and 52 minute filibuster that made the front pages of  major newspapers and thus incentivized Holder to write another letter  limiting the President’s power over non-combatant Americans in  “extraordinary circumstances”. (“It has come to my attention that you  have now asked an additional question: ‘Does the President have the  authority to use a weaponized drone to kill an American not engaged in  combat on American soil?’ The answer to that question is no.”) The  Administration also released several more of the eight outstanding  classified reports on the drone program to the Senate Intelligence  Committee. Pronouncing himself satisfied, Paul dropped his filibuster,  and the Senate confirmed Brennan by a vote of 63-34.

The new question is whether, with Brennan installed at Langley and  Paul mollified, the issue will drop below the surface of public  consciousness as quickly as it appeared there. We should hope not,  because major questions remain unresolved. Most notably there is still a  large gray space in which the executive exercises relatively limitless  powers in the name of national security. This gray space encourages  unaccountability and unclear rationales for action. Even worse, perhaps,  are the long-term unintended consequences in countries we strike in our  pursuit of an abstract enemy—one who available facts suggest may no longer pose an immediate threat.

The New York Times examined this issue of unintended consequences in an understated yet nonetheless fairly astonishing recent article  entitled “U.S. Disavows 2 Drone Strikes in Pakistan”. It reported that  the Pakistani government may be striking its own citizens under what has  become the useful guise of the U.S. military. This development, in  which the chess masters in the White House appear to have become the  pawns of their nominal allies in Islamabad, was characterized in the  article as a “striking irony”. How this “striking irony” might play  among citizens of Pakistan and nearby nations remains unclear, and is in  fact a question that demands serious examination. At the very least,  though, reports like these provide concrete evidence of why open, adult  deliberation about counterterrorism policies is actually a matter of  pressing national security.


All by
Matthew Wolfson