Portside Date: February 8, 2013

Author: Juan Cole

Date of source: February 8, 2013

juancole.com

The confirmation hearing for John Brennan allowed the country to grapple with many issues that had been swept under the rug and seldom discussed in public. While few to none of them were thus resolved, it does seem to me positive that they were brought up in public.

Surprises?

1. The LAT reports that “Republicans largely focused on whether the CIA should be capturing more terrorists, rather than just killing them.” Let’s get this straight. The GOP is pressuring a Democratic administration to be less bloodthirsty?

2. It turns out the John Brennan wants to turn the drone program over to the Department of Defense. I have long advocated this step (not that it matters much what I think about these matters). As Brennan and his aides point out, having it under the Central Intelligence Agency makes it automatically covert and removed from public inquiry or discussion. While the special operations forces in the US military do not have has much bureaucratic oversight as the CIA, the Department of Defense in general is in the nature of the case more under civilian oversight than the CIA. And, its programs are open to public discussion.

3. The National Journal reports that Brennan also says he recognizes that the drone program as now carried out has the potential to undermine international law, and that the US risks setting precedents that e.g. China and Russia might themselves use for their own purposes in the near future. While the paternalistic assumption that the US is responsible but lesser races are not is problematic, to say the least, the point– that US policy is often cited in justification for controversial actions by other countries– is correct. The problem is that Brennan and Obama seem to be in the position of the young St. Augustine, who is alleged to have prayed that God make him virtuous, but “not yet.”

4. Brennan alleges that he objected to the use of waterboarding when he was deputy executive director of the CIA, but did not pursue the matter because it was being done in a different section of the agency. Hunh? Is it that he was in the Directorate of Intelligence and it was the Directorate of Operations guys who were waterboarding? Isn’t he implying that there are black ops being run by rogue parts of the agency that aren’t open to influence from even deputy executive directors?

5. The LAT says that Brennan has now concluded, after a 6,000 page review distilled into a 300-page summary, that stress positions, humiliations such as nudity, and waterboarding (which I will call torture even though he would not) produced no useful intelligence. I would go further and argue that actually the torture produced key disinformation for which Washington often fell, sending it off on wild goose chases like invading Iraq.

6. Likewise, LAT notes that “Sen. John D. Rockefeller IV (D-W.Va.) said the interrogation program was ‘corrupted by personnel with pecuniary conflicts of interest.’” Hunh? Somebody was making money off the torture? Who, how and why? You can’t just leave us hanging with that tidbit, Sen. Rockefeller!

7. The CIA is telling Sen. Diane Feinstein that the number of innocent civilians killed by US drone strikes annually has typically been in single digits, but also forbade her to say that publicly because everything about drones is classified. If this allegation is true, the CIA is not as good at counting as the young British journalists at the Bureau of Investigative Journalism (scroll down).

8. It turns out that Americans, when asked, think that droning American citizens is illegal, and that they don’t support the drone program if it means killing innocent civilians along with militants. As usual, Americans turn out to be mostly center-left on policy when anyone bothers actually to ask their opinion. Sen. Ron Wyden, among our foremost exponents of the rule of law in these matters, turns out to have an enormous constituency!

9. When senators pressed Brennan to have judicial oversight of drone strike decisions where they concerned Americans, he said it could be considered but doubted whether a court could evaluate intelligence on whether a militant posed a threat. Why can intelligence bureaucrats make that evaluation but judges cannot? Occasionally the arrogance of the intelligence aristocracy peaked out at the hearing.

10. Administration officials are admitting that the drone program, which is allegedly authorized by the 2001 congressional authorization for the use of military force, would be brought into legal question if al-Qaeda were declared defeated, thus putting an ending parenthesis around the AUMF. But I argue that the AUMF is itself unconstitutional, since it went beyond calling for hunting down and punishing the plotters of 9/11 to creating a class of persons (“al-Qaeda members”) who are objects of a Bill of Attainder. You can’t actually declare war on a small civilian organization that is spread over the world. There is no formal definition of an al-Qaeda member, there is no real way to decide who is ‘operational’ and who isn’t, and there is a tendency in the US government to use ‘al-Qaeda’ to describe all militant and/or inconvenient Muslim movements. In fact, the NYT revealed that the US routinely ex post facto puts all young men killed in a drone strike in the category of ‘militants,’ even if it has no idea who they are. Most living actual al-Qaeda members had nothing to do with 9/11 and many are critics of it. The hypocrisy of all this is obvious in Libya, where the US cooperated with Abdel Hakim Belhadj, who became the security director for post-revolutionary Tripoli, even though he could be droned at will by President Obama any day of the week according to current US policy. The entire thing is a definitional, constitutional and legal mess, and Obama should end it all before going out of office.