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Brennan Attacks First Responders Again

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In a sane world, John Brennan would be on his best behavior while his nomination to lead the CIA is pending approval in the Senate. Sadly, the world we inhabit has become so insane that Brennan’s “best behavior” appears to be a return to drone strikes that come with alarming frequency and include so many missiles fired at each target that it seems likely Brennan has returned to the war crime of attacking first responders who are attempting to rescue survivors at the attack site.

I had noted last May that at least some US drone strikes appeared to have underpinnings that were as political as they were strategic, and my belief in that premise was strengthened as Brennan and the CIA escalated attacks to near daily at the time when US-Pakistan relations had reached a low point during negotiations to re-open NATO supply routes through Pakistan. Although some of the attacks I have described as political seem to have been very poorly targeted, especially the attack that killed 42 people gathered for a jirga just after the release of Raymond Davis, I was encouraged as the attacks slowed and appeared to be targeted on stronger underlying intelligence last fall and this winter.

However, it appears that the pace of attacks is picking up once again, both in frequency and in the number of people killed in each attack. Bill Roggio noted in Long War Journal that the attack on Sunday was already the fourth attack of January in only its sixth day. That attack left 17 dead, although it appears that three separate compounds were targeted in the attack. Today, we have yet another strike, bringing the total to five in eight days. Today’s attack, at least according to the Express Tribune, came in two separate waves, and raises the question of whether the US is once again targeting first responders who are trying to rescue survivors:

US operated armed drones fired missiles in Mir Ali and Essukhel area of North Waziristan in two sorties early on Tuesday morning killing at least eight people, Express News reported.

According to Express News, the CIA-operated drones first fired at least eight missiles at a compound in Haiderkhel area of Miranshah  killing five people. Four people were also injured in the attack.

Locals are sifting through the rubble to recover the bodies of the dead and rescue the injured.

In a second attack in as many hours, drone attacks killed at least three people.

Although the Express Tribune article could be read in a way to believe that the two sorties might not have hit the same compound, an article by Reuters and two different AP articles in the New York Times and Washington Post all make it clear that today’s attack concentrated on a single compound. Going back to the information in the Express Tribune article, then, we see eight missiles fired in the first volley. We have no information on how much time passed between missiles or if first responders had time to get to the scene and begin rescue operations. However, the second sortie, described as within two hours, seems quite likely to have been carried out despite the presence of “Locals” described by the Express Tribune as “sifting through the rubble to recover the bodies of the dead and rescue the injured”.

Such is the moral rectitude of the man who has been nominated to be the Director of the CIA. He has once again knowingly targeted first responders who were attempting to rescue survivors from a previous attack.

Update: Long War Journal now reports that today’s strikes were on two different compounds. The primary conclusion about targeting first responders still stands, since it still is being reported that eight missiles were fired at the first compound.

John Brennan Promises to Take the Gloves Off

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In response to John Brennan’s nomination, PBS sent out the clip from their 2006 interview in which he endorsed taking the gloves off. I find that clip, plus the complete interview transcript, all the more instructive given what has transpired with the Gloves Come Off Memorandum of Notification in the last two years and, I suspect, in last week’s opinion refusing to release the targeted killing memo. (Here’s a post describing the MON, and here’s the entire series: post 1, post 2, post 3, post 4, post 5, post 6,post 7, post 8, post 9, plus post 10 and post 11.) The short version of those posts is that the Executive Branch doesn’t consider the OLC memos the authorizing documents for its counterterrorism program–it considers this MON that document. But it is written such that it permits both the Agency and the Executive to avoid all accountability for these law-breaking programs.

Here, when the interviewer asks Brennan about “the Dark Side”–the title of the program–Brennan responds instead by talking about “taking the gloves off.”

Why would the vice president, and even the secretary of defense, want to talk about or have the country or want to warn the country about going to “the dark side”?

I don’t know. You’d have to ask them. … The point is the war or the campaign against terrorism can be a long one, and that the opposition, whether it be Al Qaeda, or whether it be Iraq, doesn’t play by the Marquis de Queensbury rules. Therefore, the U.S. in some areas has to take off the gloves. And I think that’s entirely appropriate. I think we do have to take off the gloves in some areas, but within balance, and at the right time and the right way, and for the right reason and with full understanding of what the consequences of that might be. [emphasis mine]

As I observed, the interviewer asks about “the Dark Side”, but then Brennan offers up the term “gloves come off” instead. He does so, notably, with regards to both al Qaeda–the terrorists–and Iraq (in 2006!)–the nation-state against which we trumped up a war. He not only endorses the notion that the Iraq war was part of the war on terror, but also that the US could “take its gloves off” even in a war with another nation-state purportedly governed by the traditional law of war.

In the phrase, John Brennan is endorsing “taking the gloves off,” in the name of terrorism, with any country we happen to be fighting that might–maybe–play dirty.

Then the interviewer asks Brennan–first and foremost–about the Bybee memo, but also about the AUMF. Brennan responds by talking about Findings.

One of the things that [the administration does] right away is get lots of legal justifications lined up, from the Bybee memo [the so-called “torture memo”] to everything, commander-in-chief power, the War Authorization Act. Would there have been very much difference between what Tenet believed the CIA should do in terms of renditions and all of it and what we can assume the vice president and the president and others would want the CIA to do? Was Tenet especially more careful, more cautious, more anything than they were sounding like they were?

I think George had two concerns. One is to make sure that there was that legal justification, as well as protection for CIA officers who are going to be engaged in some of these things, so that they would not be then prosecuted or held liable for actions that were being directed by the administration. So we want to make sure the findings and other things were done appropriately, with the appropriate Department of Justice review. [brackets original; my emphasis]

At least one and probably two courts have said that no sitting Administration official has admitted that all the law-breaking in pursuit of terrorists was authorized not by an OLC memo, but first and foremost a Finding.

Oh yes one has.

And he did so in a conversation framed precisely in the same way Cofer Black, author of the Gloves Come Off MON, did.

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The Official John Brennan Story

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The NYT has chosen to have someone who presented an outdated picture of drone targeting that covered up changes implemented under John Brennan report on John Brennan’s nomination to be CIA Director. The story is predictably imbalanced.

Take this claim, for example:

It is uncertain whether the torture issue will now cause any problems for Mr. Brennan. But he is a far more well-known figure than in 2009, having made many public appearances in the wake of terrorist plots and to explain the legal and policy arguments behind drone strikes.

It’s fair, as far as it goes. I do doubt that Obama will care that his CIA Director has protected the CIA’s torturers. I do think Brennan has seduced enough beltway journalists so as to withstand criticism for his views.

But Scott Shane suggests Brennan’s many public statements on drones were 1) accurate and 2) consisted of actual explanations for drone strikes.

This, coming from a guy who has noted Brennan getting caught lying about there being no civilian casualties from drones in the past.

And from a guy who knows well that Brennan’s drone targeting speech fails to explain signature strikes (which Brennan approved in Yemen).

Sadly, Shane didn’t note those past lies.

Then there’s this claim.

He has spoken out repeatedly about the need for strong oversight and review of counterterrorism actions.

It would be useful for Shane to note that Brennan’s plans to establish rules for drones faltered after Mitt Romney lost the election. It would also be useful to note that his idea of “strong oversight” consists of him–John Brennan–centralizing all decision making under himself, then operating within the oversight free National Security Council. All at the same time the Administration refuses to exercise real transparency (and doesn’t even share the “kill list” with the Gang of Four).

That is, it would be nice if Shane had distinguished the myth he has helped to create from the reality.

But it seems the real role of Shane’s article is to point this out.

During Mr. Brennan’s tenure as Mr. Obama’s top adviser on counterterrorism, Al Qaeda’s leadership has been devastated and Mr. Bin Laden been killed.

That, I suppose, is the plan to get Brennan confirmed: paper over the serial lies and instead repeat Osama bin Laden over and over again.

Well done, Scott Shane!

The Seduction of John Brennan’s “Moral Rectitude”

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As has been floated over the last few days, Obama will reportedly appoint John Brennan CIA Director later today.

FWIW, having John Brennan in a position where he will be subject to Congressional oversight–rather than the oversight-free and more expansive position he’s in now–might not be an entirely bad thing. And after the DiFi-Jose Rodriguez smackdown, I’m not sad to see Morell get passed over, because I don’t think he has sufficient independence from people like Rodriguez.

Nevertheless, this appointment no doubt will lead to (already has) a bunch of people suggesting John Brennan will bring new order to the drone program.

I’m actually far more worried about Brennan’s control over other programs, particularly profiling Americans (though NCTC owns much of that task now). Remember, in addition to having ties to torture, Brennan was in charge of profiling for Dick Cheney’s illegal wiretap program. And he’s the guy who decided it’d be great to give the NCTC unfettered access to any federal database. This man loves data mining, and we should expect to see more of it from the CIA.

But I’m amused that people believe–based on anonymous claims by Brennan supporters–that he’ll bring order to the drone program. Such belief, it seems to me, overlooks Brennan’s actions in favor of anonymous comments.

Brennan was purportedly putting more order to the program. Until Mitt lost, and then he stalled that effort and broke what rules are said to govern the program.

Brennan was purportedly opposed to signature strikes. Until he approved them for use in Yemen.

Brennan has had control over all aspects of the drone program for 8 months. But the drone program is, if anything, accelerating again.

And remember, Brennan is a liar. A proven liar on this and a number of other issues. As well as a key instigator for the self-interested leaking the Administration would criminally punish coming from others. He spends a great deal of energy telling useful but not factually accurate stories to spin the Administration’s counterterrorism programs.

So I can’t help but think the people hailing his “moral rectitude” have been seduced by an old spook. Because every story that claims Brennan has some kind of higher ethics or a plan to put order to our out-of-control CT programs is either followed–or has the proof within itself–that the moral rectitude is the PR, whereas the embrace of unchecked power seems to be backed by his actions.

The Dianne Feinstein-Jose Rodriguez Grudge Match

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It cannot be sheer coincidence that Dianne Feinstein released two letters to acting CIA Director Michael Morell just hours before WaPo published yet another fact-free defense of torture from Jose Rodriguez.

In addition to demanding proof for assertions Morell made–after DiFi sent her first letter–in a letter to CIA employees about Zero Dark Thirty…

In your December 21, 2012, statement to CIA employees regarding the film, Zero Dark Thirty, you state that “the film creates the strong impression that enhanced interrogation techniques” were “the key to finding Bin Ladin” and that this impression “is false.” However, you went on to refer to multiple streams of intelligence that led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad and stated that “Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.”

DiFi also noted (in her first letter) that the false assertions in the film tracked public claims made by Michael Hayden and Rodriguez.

As you know, the film depicts CIA officers repeatedly torturing detainees. The film then credits CIA detainees subjected to coercive interrogation techniques as providing critical lead information on the courier that led to the UBL compound. While this information is incorrect, it is consistent with public statements made by former Director of the CIA Counterterrorism Center, Jose Rodriguez, and former CIA Director Michael Hayden.

DiFi sent her first letter December 19. Morell made his incorrect claims two days later. Then DiFi demanded he back his claims on Monday.

Then here we are, on Thursday, with Rodriguez both denying the brutal aspects of the torture depicted in the movie resemble what the CIA did, while claiming (as DiFi predicted) that torture was central to finding Osama bin Laden.

I guess this is why the name of Jane Harman–who may have been terrible on a number of points but pushed back on the Bush Administration’s torture regime–got floated in the last few days as CIA Director, instead of Morell, who had previously been a lock?

In addition to preventing Morell from officially directing the CIA, DiFi does have another way to respond to this insubordination: to release her long report showing that torture not only didn’t work, but did resemble the brutal scenes in the movie.

Mind you, she’s going to face an increasingly fierce battle over classification. Does CIA retain primary classification authority for the program–in which case they’ll fight her? Or does Obama–and will the CIA’s godfather, John Brennan, allow the report to be released?

In any case, this seems a clear moment when DiFi’s authority (indeed, when Congress’ authority) on an issue on which she has been productive, is being challenged head on.

We shall see whether the Congressional overseer or the torturer wins this battle.

Why Not Have a Hearing on Civilian Drone Casualties?

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Yesterday, I suggested that Mike Rogers and Dutch Ruppersberger’s certainty that public accounts of drone casualties are overstated may say more about our failed intelligence oversight than it does about the number of civilians who have died in our drone strikes.

Later yesterday, Steven Aftergood posted a must read reflection on how our intelligence oversight has backed off public accountability. I’ll have more to say about Aftergood’s post, but for the moment I wanted to look at a measure of public accountability he uses: the number of public oversight hearings, particularly those with outside experts.

Over the past decade, however, the Committee’s priorities appear to have changed, to the detriment of public accountability.  In fact, despite the Committee’s assurance in its annual reports, public disclosure even of the Committee’s own oversight activities has decreased.

In 2012, the Committee held only one public hearing, despite the prevalence of intelligence-related public controversies.  That is the smallest number of public hearings the Committee has held in at least 25 years and possibly ever.  A non-governmental witness has not been invited to testify at an open Committee hearing since 2007.

Breaking! Under Dianne Feinstein’s leadership, the Senate Intelligence Committee has had its fewest public hearings in at least 25 years!

Aftergood’s point, though, suggests one remedy for the problem with Mike Rogers’ boasting (or more lucrative assurances from DiFi that her oversight is all we need on drone strikes).

Why not have a public hearing at which the major contributors to the discussion of drone casualties testify in the same place?

The Intelligence Committees could invite both The Bureau for Investigative Journalism and the AP to explain how they conducted independent assessments of civilian casualties and what those assessments showed. They could invite Peter Bergen to explain his dubious numbers publicly (at one point, after all, Bergen actually knew as much about Osama bin Laden as the people hunting him in secret).  They could invite Pepperdine professor Gregory Neal–who has a paper saying that when the government uses its collateral damage estimation process, it does a remarkably good job at keeping collateral damage low, but admits that “due to the realities of combat operations, the process cannot always be followed.” Hell, they could even invite John Brennan to lie publicly about civilian casualties, as he has done in the past. Maybe, too, Brennan can explain how all militant age men are treated and counted, by default, as militants.

The point is there is a partial remedy to the grave problems with the cognitive challenges overseers like Mike Rogers and Dianne Feinstein face. One of those is to publicly accept the testimony of those who have different investments than the intelligence community.

Right now, continuing to rest the drone program’s legitimacy on repeated public calls to “trust me” actually undermines its legitimacy.

Sadly, resting our national security policy on repeated “trust mes” appears to be what Rogers and Feinstein like.

John Brennan: Not only Drone Assassination Czar, But Eliminate American Privacy Czar

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The most interesting line of this WSJ article–describing the dissent to the Administration’s plan to give the National Counterterrorism Center any government database it wants for five years–is this one.

Mr. Brennan considered the arguments. And within a few days, the attorney general, Eric Holder, had signed the new guidelines.

The story suggests that the way the Administration resolved objections from people within Department of Homeland Security (as well as DOJ) to giving NCTC Americans’ flight data in ways they hadn’t been informed of when the data was collected was to have a meeting at the White House Situation Room at which John Brennan would decide whether to heed those objections.

John Brennan. Not the President, not the Attorney General, not even National Security Advisor Tom Donilon, but instead John Brennan (not coincidentally, a former contractor on data mining and before that in charge of targeting for Dick Cheney’s illegal wiretap program).

Much of the rest of the story rehearses what I reported (among other places) here and here and here and here. It describes how the NCTC will have access to any database it claims contains terrorist information.

What’s new in this story is the reason NCTC demanded a policy granting them broad access to these databases–because it had not complied with an agreement made with DHS regarding one of its databases.

Late last year, for instance, NCTC obtained an entire database from Homeland Security for analysis, according to a person familiar with the transaction. Homeland Security provided the disks on the condition that NCTC would remove all innocent U.S. person data after 30 days.

After 30 days, a Homeland Security team visited and found that the data hadn’t yet been removed. In fact, NCTC hadn’t even finished uploading the files to its own computers, that person said. It can take weeks simply to upload and organize the mammoth data sets.

Homeland Security granted a 30-day extension. That deadline was missed, too. So Homeland Security revoked NCTC’s access to the data.

To fix problems like these that had cropped up since the Abdulmutallab incident, NCTC proposed the major expansion of its powers that would ultimately get debated at the March meeting in the White House. [my emphasis]

And it describes how, primarily, former DHS Privacy Officer Mary Ellen Callahan fought the changes.

In May 2011, Ms. Callahan and Ms. Schlanger raised their concerns with the chief of their agency, Janet Napolitano. They fired off a memo under the longwinded title, “How Best to Express the Department’s Privacy and Civil Liberties Concerns over Draft Guidelines Proposed by the Office of the Director of National Intelligence and the National Counterterrorism Center,” according to an email obtained through the Freedom of Information Act. The contents of the memo, which appears to run several pages, were redacted.

The two also kept pushing the NCTC officials to justify why they couldn’t search for terrorism clues less invasively, these people said.

[snip]

To resolve the issue, Homeland Security’s deputy secretary, Jane Holl Lute, requested the March meeting at the White House.

[snip]

Ms. Callahan argued that the rules would constitute a “sea change” because, whenever citizens interact with the government, the first question asked will be, are they a terrorist?

It also describes how all these people who not only championed privacy, but also pointed out our targeting failures in the past came from not investigating quickly, not lacking the data to find those people.

This feels very similar to the same argument that Thomas Drake fought at NSA. He, like these former DHS and DOJ people, fought for a way to find terrorists that didn’t also infringe on the privacy of Americans. And he, like these DHS people, was overruled.

The difference, of course, is that this abuse of privacy came under Barack Obama, who never seems to get criticized for showing the same disdain for privacy that Dick Cheney did.

Though, insofar as John Brennan is making all the decisions in Obama’s war on terror, I’m not sure there’s a real difference between the two.

Assume Obama Drone Rules Dead

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There’s been a series of moves and trial balloons among Obama’s national security lawyers that lead me to assume that any effort to apply some regularity and the patina of legality to the drone program is dead.

First, after some reporting that he might replace Eric Holder as Attorney General, DOD General Counsel Jeh Johnson instead announced his resignation, effective the moment the New Year’s ball drops.

Mr. Johnson, who was general counsel to the Air Force during the Clinton administration, was a key legal adviser and fund-raiser for then-Senator Obama during his run for the presidency in the 2008 campaign. On Thursday, he sent Mr. Obama a letter saying that he would resign effective midnight on Dec. 31.

“Thank you for the opportunity to be part of your campaign, your transition, and your Administration,” Mr. Johnson wrote. “Thank you also for the best clients I will ever have: Robert Gates, Leon Panetta, and the men and women of the U.S. military.”

Mr. Johnson, a former prosecutor, has been mentioned as a potential attorney general should Eric H. Holder Jr. step down in Mr. Obama’s second term. That speculation has been centered more among his colleagues in the Pentagon rather than among civilian law enforcement officials, however.

In his current job, Mr. Johnson worked closely on internal debates about the scope and limits of the government’s power to hold terrorism suspects in indefinite detention and to target them with drone strikes in places like Yemen and Somalia. In those debates he generally sought broader latitude for the government than some others, notably State Department officials.

But Mr. Johnson took a more restrained position than some colleagues during the NATO-led air war in Libya. As American participation in the effort neared an apparent 60-day limit imposed by the War Powers Resolution for hostilities that had not been authorized by Congress, he urged pulling back on direct combat activities – like missile strikes – but was overruled by the White House.

Now, as Charlie Savage notes, the reports that Johnson might be named Attorney General seemed to come from Johnson’s backers, not the White House. And as Savage reports, Johnson’s role has been mixed. While he pushed for more flexibility–particularly with drones themselves–he did try to hew to rule of law in other areas. And he recently suggested that the AUMF the government has operated under will one day (I would argue, already has) effectively been vacated because core al Qaeda has been disrupted so thoroughly.

I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.

Once core al Qaeda has been decimated (which they have been), Johnson said, the military must become solely a reserve force, with intelligence and law enforcement leading the fight.

In many ways, the speech reads, in hindsight, like a valedictory, listing Johnson’s personal accomplishments at DOD (notably, the repeal of Don’t Ask Don’t Tell). But it also calls for conventional legal limits to the war on terror.

And then, days after delivering that speech, Johnson was not only not named to replace Holder, but was himself on the way out the door.

Then the day after Johnson’s departure announcement, came State Department Counselor Harold Koh’s.

That one I find more troubling. While it might just be tied to Yale’s desire to have Koh do his job again (though those transitions usually happen in August, not December), and while Hillary’s departure may explain Koh’s departure (though Hillary isn’t leaving for some time yet), Koh’s departure comes just weeks after Scott Shane’s report that the attempt to put order to the drone program–which had first been reported before the election–had stalled after the election. I suggested then that the Shane report might be an effort from those trying to put more legal regularity to the drone program–an effort undoubtedly led by Koh–to force John Brennan to carry through on his earlier plans. Matthew Aid confirmed that the drone rules, at least, if not the leak to Shane, came from those in State (again, this must be Koh) and DOJ who recognized the drone program didn’t really fly under international law.

A State Department official who recently left his post for a better paying job in the private sector admitted that there is deep concern at State and Justice that sooner or later, a court in the U.S. or in The Hague will issue a ruling on the question of the legality of these missions, which many in Washington fear will go against the U.S. government position that these strikes are legal.

So whether Koh left because he lost this fight with Brennan or because of academic schedules and Hillary’s upcoming departure, in his absence, the drone rules Koh pushed for are far less likely to happen.

Then there’s the news–this one, unlike reports of Johnson as Attorney General, sourced to the Administration itself–that Stephen Preston, currently CIA’s General Counsel, may replace Johnson at DOD.

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Good Thing John Brennan Didn’t Have to Follow His “Rule Book” When He Killed Adnan al-Qadhi

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The other day, I suggested that the “rule book” John Brennan reportedly rushed to finish in case Mitt won but apparently backed off since may have been an effort to refute Michael Hayden’s criticisms of Obama’s counterterrorism strategy. Hayden has suggested that by using drones rather than torture, the Obama Administration has embraced a more ethically problematic approach.

I was just speculating, of course, that the “rule book” was nothing more than a show for the benefit of Hayden, to try to pretend the drone program wasn’t as ad hoc as it looks and as Hayden has suggested.

Yet I find it interesting that less than a day after Mitt Romney didn’t win the election, Brennan’s drone program took out a Yemeni who–by local accounts, at least–could have easily have been captured.

American counterterrorism officials have painted drone strikes as a tool of last resort, utilized only when targets represent an imminent threat and are nearly impossible to take out by other means. But people in Beit al Ahmar say it’s hard to argue that [Adnan al-]Qadhi’s capture would have been out of the question. He’d already been arrested, and released, before, in 2008 after an attack on the American Embassy. And Beit al Ahmar, nine miles outside Yemen’s capital, Sanaa, is no isolated enclave – it’s the birthplace of former President Ali Abdullah Saleh and home to much of the military’s leadership.

Sitting less than an hour’s drive from the capital, residents here say Qadhi could have been captured easily.

[snip]

Few here dispute Qadhi’s open sympathy toward AQAP. After all, the target’s house, modest compared to nearby fortress-like compounds, sticks out because of a mural on one side that shows al Qaida’s signature black flag.

But his relatives and associates say there’s more nuance to Qadhi’s story. While he was labeled as a local leader of AQAP after his death, as recently as last winter he’d participated on a team that mediated between the government and AQAP-linked militants who’d seized control of the central town of Rada.

Back in April–the last time Drone Assassination Czar John Brennan was making a big show of the purported order of his drone program–here’s some of what he said about who the US targeted with drones.

Even if it is lawful to pursue a specific member of al-Qaida, we ask ourselves whether that individual’s activities rise to a certain threshold for action, and whether taking action will, in fact, enhance our security. For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests.  This is absolutely critical, and it goes to the very essence of why we take this kind of exceptional action.

[snip]

I am not referring to some hypothetical threat, the mere possibility that a member of al-Qaida might try to attack us at some point in the future.  A significant threat might be posed by an individual who is an operational leader of al-Qaida or one of its associated forces.  Or perhaps the individual is himself an operative, in the midst of actually training for or planning to carry out attacks against U.S. persons and interests.

[snip]

In addition, our unqualified preference is to only undertake lethal force when we believe that capturing the individual is not feasible. [my emphasis]

Of course, I’ve suggested that the entire speech was bullshit, just an attempt to prepare an intent-based defense in case Brennan ever got in trouble for killing so many illegitimate targets.

But the case of Adnan al-Qadhi appears to show that John Brennan can’t even follow the rules he has claimed publicly he follows.

And that bit about whether or not a particular drone strike would enhance our security?

Here’s what al-Qadhi’s villagers–who up until this strike were peaceful–have to say about the strike.

In the center of the village, a farmer named Abduljaber Saber held forth on the strike with his neighbors, calling the attack a violation of the rule of law, casting it as an example of “American hypocrisy.”

His neighbor, Mohamed Abdulwali, took a break from repairing a water canister to chime in: “Any action has a reaction. Any violence will breed violence.”

John Brennan, the priest-like assassination czar, doesn’t seem to be following his own rules.

Is the Drone “Rule Book” an Effort to Force Kill-Not-Capture?

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After reading the response to Scott Shane’s article on the drone rule book, I wanted to add a few thoughts.

First, much of the treatment of the article treated the description of the rule book itself as news. It’s not. Greg Miller discussed the effort in an article last month.

White House counterterrorism adviser John O. Brennan is seeking to codify the administration’s approach to generating capture/kill lists, part of a broader effort to guide future administrations through the counterterrorism

The news in the Shane article is that the effort to codify the drone program accelerated–and now has lost urgency–because of the possibility that someone like Cofer Black rather than John Brennan would be running the drone program in a Romney Administration.

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

The matter may have lost some urgency after Nov. 6. But with more than 300 drone strikes and some 2,500 people killed by the Central Intelligence Agency and the military since Mr. Obama first took office, the administration is still pushing to make the rules formal and resolve internal uncertainty and disagreement about exactly when lethal action is justified.

That’s why I’m not sure we should assume that Obama ever intended the rules as limits on what Mitt’s Administration might do.

There are at least two other possibilities.

While it’s unclear whether this rule book effort is just part of or is the same thing as the disposition matrix also described in Miller’s article, that article does make it fairly clear the codification effort strives to make the drone program more permanent, even to streamline it (and to centralize it under oversight-free White House personnel rather than the Joint Chiefs).

Targeted killing is now so routine that the Obama administration has spent much of the past year codifying and streamlining the processes that sustain it.

This year, the White House scrapped a system in which the Pentagon and the National Security Council had overlapping roles in scrutinizing the names being added to U.S. target lists.

Now the system functions like a funnel, starting with input from half a dozen agencies and narrowing through layers of review until proposed revisions are laid on Brennan’s desk, and subsequently presented to the president.
[snip]
For an administration that is the first to embrace targeted killing on a wide scale, officials seem confident that they have devised an approach that is so bureaucratically, legally and morally sound that future administrations will follow suit. [my emphasis]

That is, the rush to implement the rule book may have been an effort to ensure the program’s permanence, to force Mitt to keep it.

And while there’s no doubt he would have (as Miller pointed out in his article), consider the alternative. Mitt’s Administration likely would have included the architect of the torture program, Cofer Black, and a former CIA Director, Michael Hayden, who has repeatedly called for retaining the torture program.

The effort to institutionalize the drone program may have been a bid to sustain the kill-not-capture preference of the Obama Administration (though the “disposition matrix” appears to have been an effort to invent some alternatives for live capture that Obama hasn’t much used). Though any effort to dictate choices to the dangerously creative Black, I suspect, would have been futile.

There’s one other related possibility.

Hayden, in particular, has been vocal about what the choice to end torture has purportedly brought about: precisely that kill-not-capture choice. Even while defending torture, Hayden has been fairly aggressive in noting how much killing the Obama approach has entailed.

Might it be, then, that the effort to draft a set of “rules” for drone killing was really an effort to make the program look more rational and measured than it has been in practice, to put the best spin on it before another bureaucrats from another party got fully briefed on it?

As Shane notes, Obama’s folks still haven’t decided when and how they use drone killing.

Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory.

So even four years in, the program is in fact an ad hoc mess, even if the Administration claims it is not.

And there are a number of killings or targetings that occurred under the Obama Administration–the incidents where “allies” gave us bad targeting data so we would kill their political rivals, the signature strikes that killed civilians, and even the targeting of Americans whom the intelligence community believed were not yet operational–that might be embarrassing if further details were leaked by the incoming Administration.

These awkward targetings are almost certainly precisely the reason the Administration refuses to make more information about its targeting program public: because they prove the program was never as orderly or legally sound as the Administration publicly claims. So the “rule book,” purporting to show the reasoned deliberations behind these screw-ups, might be one way to spin them as reasoned (and legal). I have suggested that some of the public statements about the drone program might have served as legal cover if ever anyone thought to prosecute Administration officials for killing civilians. Perhaps this “rule book” was designed to do the same?

Thus far, most of the treatment of the “rule book” has presumed it was meant to be prescriptive, and it might well have been. But it’s also possible the “rule book” was meant to be (falsely) descriptive, an effort to spin the program just as a group of potential critics got read into the program.

Update: Matthew Aid’s take on this seems to support my suspicions: this “rule book” is about the eventual review of this program.

A State Department official who recently left his post for a better paying job in the private sector admitted that there is deep concern at State and Justice that sooner or later, a court in the U.S. or in The Hague will issue a ruling on the question of the legality of these missions, which many in Washington fear will go against the U.S. government position that these strikes are legal.