"...do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic..."

"For the good of the Air Force, for the good of the armed services and for the good of our country, I urge you to reject convention and careerism..."
- Secretary of Defense Robert Gates, Maxwell AFB, April 21, 2008

"You will need to challenge conventional wisdom and call things like you see them to subordinates and superiors alike."
- Secretary of Defense Robert Gates, United States Air Force Academy, March 4, 2011

Tuesday, May 1, 2012

John Brennan on Targeting Americans

John Brennan has joined a small group of government voices discussing using America's military power against American citizens.  I have been particularly interested in this topic, as I think it represents a huge shift of military focus since the Civil War, and because I think this shift will continue.  Jake Tapper discussed targeting Americans at the White House and asked some outstanding questions, and recently we have seen the Pentagon's top lawyer and the Attorney General weigh in on the discussion.  Most recently, John Brennan joined the discussion at the Woodrow Wilson Center.  Among his comments:
Earlier this year, Attorney General Holder discussed how our counterterrorism efforts are rooted in, and are strengthened by, adherence to the law, including the legal authorities that allow us to pursue members of al-Qa’ida—including U.S. citizens—and to do so using “technologically advanced weapons.”

In addition, Jeh Johnson, the general counsel at the Department of Defense, has addressed the legal basis for our military efforts against al-Qa’ida. Stephen Preston, the general counsel at the CIA, has discussed how the Agency operates under U.S. law. These speeches build on a lecture two years ago by Harold Koh, the State Department Legal Adviser, who noted that “U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.”
Mr. Brennan also stated:
When that person is a U.S. citizen, we ask ourselves additional questions. Attorney General Holder has already described the legal authorities that clearly allow us to use lethal force against an American citizen who is a senior operational leader of al-Qa’ida. He has discussed the thorough and careful review, including all relevant constitutional considerations, that is to be undertaken by the U.S. government when determining whether the individual poses an imminent threat of violent attack against the United States.

To recap, the standards and processes I’ve described today—which we have refined and strengthened over time—reflect our commitment to: ensuring the individual is a legitimate target under the law; determining whether the individual poses a significant threat to U.S. interests; determining that capture is not feasible; being mindful of the important checks on our ability to act unilaterally in foreign territories; having that high degree of confidence, both in the identity of the target and that innocent civilians will not be harmed; and, of course, engaging in additional review if the al-Qa’ida terrorist is a U.S. citizen.
I strongly disagree with the legal "arguments" being systematically peddled.  I have previously blogged about my legal understanding of assassinating American citizens here.


  1. Brennan's comments were unsatisfying for me as well. There's an allusion to a strictly military (that is to say Title 10) nomination, approval, and oversight process (no reference to a Presidential finding, or informing the "Gang of Eight" such as with typical covert action). The Church and Pike Commissions revealed that covert actions including these methods can seriously undermine public confidence when they are revealed to have an insufficient oversight process. Does the military want to risk the "just following orders" defense WRT targeted killing of AMCITs when/if public opinion demands an investigation? I'm sure that no one in the CIA thought they would be called to account...but they were in the 1970s.

    The most disappointing aspect of Brennan's speech was how much it echo'd the Steel Seizure case. The Executive has tried to claim superconstitional rights and powers before. I'm not sure that attempting to keep these killings strictly within the SOF/title 10 arena is going to allow the President to escape the fact that we're taking war-time actions outside of congressionally declared wars. Perhaps I'm just not seeing a link.

  2. Thanks for the meaty response. I share your concerns. One difference, a declaration of war isn't required due to Congress using their Constitutional authority to make laws "necessary and proper" with respect to declaring war, and passing the War Powers Resolution. That law allows for military action with an authorization for war, and our current military actions were all be authorized by Congress with the exception of actions in Libya.

    Thanks for the great response.