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