The head of the United Nations inquiry into drone strikes and targeted killings believes the chief architect of those efforts will rein them in at the CIA.
Ben Emmerson, the United Nations special rapporteur for human rights and counterterrorism, tells Danger Room he's giving his qualified backing to John Brennan, President Obama's top counterterrorism adviser and nominee to become CIA director. The endorsement comes at a critical time for both men: Brennan faces Senate questioning on Thursday afternoon, and Emmerson is negotiating access with the U.S. government to its targeted-killing efforts for his recently announced international inquiry into their legality.
It's an unlikely endorsement. Emmerson, a British lawyer, has put the U.S. on notice that he won't hesitate to investigate U.S. "war crimes" if he uncovers evidence of them. While Emmerson's inquiry won't focus on individuals responsible for any uncovered abuses, Brennan, as a White House aide, presided over the bureaucratic process for ordering suspected terrorists killed. Yet at the White House, Emmerson says, Brennan "had the job of reining in the more extreme positions advanced by the CIA," which he thinks augurs well for Brennan's CIA tenure.
"By putting Brennan in direct control of the CIA's policy [of targeted killings], the president has placed this mediating legal presence in direct control of the positions that the CIA will adopt and advance, so as to bring the CIA much more closely under direct presidential and democratic control," Emmerson says. "It's right to view this as a recognition of the repository of trust that Obama places in Brennan to put him in control of the organization that poses the greatest threat to international legal consensus and recognition of the lawfulness of the drone program."
"Warts and all" conversations with current and former Obama administration officials convince Emmerson that Brennan tried to steer the drone program from a "technology-driven process" to one that attempted to balance the interests of the law, counterterrorism, and the agencies involved in implementing it. "There are significant elements within the CIA who are unhappy about Brennan's appointment," Emmerson says. "These are the hawkish elements inside the CIA who would rather have as a director someone who reflected their agenda, rather than someone who is there to impose the president's agenda."
Emmerson says he can't know if Brennan will actually carry out fewer drone strikes at the CIA. "What I'm saying is, Brennan has been the driving force for the imposition of a single consistent and coherent analysis, both legal and operational, as to the way the administration will pursue this program," he explains. "I'm not suggesting that I agree with that analysis. That's not a matter for me, it's a matter for states, and there's a very considerable disagreement about that. But what I am saying is that what he will impose is restraint over the wilder ambitions of the agency's hawks to treat this program in a manner that is ultimately unaccountable and secret."
As central as Brennan has been to the U.S. targeted killing program, his supporters have insisted to the press that he's an internal skeptic of it. Brennan "professed dismay at the transformation of the CIA into a paramilitary entity with killing authority," according to a Washington Post profile in October. In the Daily Beast, Daniel Klaidman wrote that Brennan is an "often-moderating influence in the war on terror" who "passionately supports civil liberties and wants to fight terrorism within a framework of law." Colleagues say Brennan has been "a restraining voice" when the CIA and the Pentagon have pressed for greater counterterrorism authorities.
Yet these accounts come from Brennan's allies inside the administration, who have an interest in portraying their counterterrorism chief as a non-threatening -- and, more importantly, confirmable -- figure. Even if Brennan harbored doubts about the targeted killing efforts inside the White House, the program has dramatically expanded: the U.S. military and the CIA operate what the Washington Post calls a "constellation of secret drone bases" in east Africa and the Arabian peninsula, including a just-confirmed one in Saudi Arabia. As Marcy Wheeler points out, Brennan's reported reluctance to allow the CIA to use "signature strikes" -- which target people not on intelligence connecting them to terrorism, but on observed behavior presumed to fit a terrorist "signature" -- in Yemen gave way once Yemeni officials warned of al-Qaida's growing local strength. It's good bet that the "informed, high-level official" that a leaked Justice Department white paper says can authorize drone strikes on American members of al-Qaida abroad is a reference to Brennan.
In public, Brennan has downplayed civilian casualties from drones, which is difficult to square with evidence from the ground and studies by non-governmental organizations, not to mention the confirmed killing of a 16-year old American citizen in Yemen. In his advance answers to the Senate Select Committee on Intelligence, Brennan defended the targeted killing program as in "full compliance with the law" and the drones that largely enforce it as capable of "astonishing precision." (.PDF) Yet at a separate point, Brennan stated without elaboration, "The CIA should not, in my view, be used to carry out traditional military activities."
Emmerson's stamp of approval provides Brennan with a valuable endorsement from an international figure ahead of what might be a rough confirmation battle. While Brennan is likely to be confirmed, senators on the intelligence committee have major concerns about Brennan's views on torture; his role in national-security leaks; and the claimed powers of the Obama administration to kill American citizens involved in al-Qaida overseas without due process. (Emmerson underscores he has "absolutely no knowledge, whether or to what extent" Brennan was involved in torture during his previous CIA tenure.) In response to pressure from 11 senators ahead of Brennan's confirmation hearing, Obama agreed on Wednesday night to give the House and Senate intelligence committees a long-classified Justice Department memorandum explaining in detail the legal justification for killing Anwar al-Awlaki, an American citizen and al-Qaida propagandist.
Emmerson sees the release of that memorandum as a signal that Obama wants to shed more sunlight on the drone program in his second term. "What we are seeing happening literally as we speak is the unfolding of the second-term Obama administration's determination to increase transparency," he says.
"Every significant player within the equation in Washington has now publicly supported transparency, legality and international engagement, because the administration knows that this [drone] proliferation cannot continue without a clear legal framework from other states," Emmerson continues. "The United States has a considerable way to go in persuading other states, including even its very closest allies, including indeed the United Kingdom, of the correctness of its legal analysis, that it is entitled as a matter of international law to regard itself in a global war without geographical or temporal limitations against any person associated with al-Qaida."
The endorsement also makes tactical sense for Emmerson. His inquiry will focus on 25 drone strikes in which there are credible reports of civilian deaths. The vast majority of them were launched by either the U.S. military or the CIA, both of which are tight-lipped about the strikes. Emmerson needs U.S. cooperation if his inquiry is going to make an impact: Micah Zenko of the Council on Foreign Relations reminds that previous U.N. efforts to explore the drone efforts failed when Washington stonewalled them. Emmerson says he already has "very good reason to believe I will be receiving cooperation with the inquiry anyway. I have had communications both unofficial and official with the administration that give me cause for confidence."
The discrepancy between Obama's rhetoric about rejecting "perpetual war" and his proliferation of targeted killing has caused some of his supporters to believe that either he's not in control of the U.S. national-security apparatus or that the end of the war on terrorism is just around the corner. The evidence for either proposition is, to say the least, disputable. But Brennan's potential move to the CIA makes it show-and-prove time for Obama.
"Obama has had one term in which to try to impose presidential, democratic authority over this program," Emmerson says. "The decision to put Brennan as director of the CIA is a decision to stamp presidential authority over the agency, and to bring it firmly under control."
