Skip to main content

On drone killings, Brennan doesn't uphold our values

By Mary Ellen O'Connell, Special to CNN
updated 12:11 PM EST, Mon January 14, 2013
John Brennan says he wants to uphold American laws. Drone killings don't square with that, says Mary Ellen O'Connell
John Brennan says he wants to uphold American laws. Drone killings don't square with that, says Mary Ellen O'Connell
STORY HIGHLIGHTS
  • Mary Ellen O'Connell: Torture, renditions used during John Brennan's Bush era CIA tenure
  • At Obama White House he backed something worse, she says: targeted drone killings
  • She says both Justice Dept.'s misrepresented both practices, tried to keep legality obscure
  • Writer: For CIA chief, U.S. needs someone who upholds nation's values. Brennan has not

Editor's note: Mary Ellen O'Connell holds the Robert and Marion Short Chair in Law and is research professor of international dispute resolution at the Kroc Institute for Peace Studies at the University of Notre Dame. She is a specialist on the international law of armed conflict and is the editor of "What Is War? An Investigation in the Wake of 9/11" (Martinus Nijhof/Brill, 2012).

(CNN) -- Four years ago, John Brennan withdrew from consideration for C.I.A. director because of his leadership role there while serious human rights violations were occurring, including waterboarding and secret detention. Mr. Brennan has said he regrets these practices. Yet he moved from the CIA to the White House, where he began to support a practice many consider worse than torture: targeted killing.

Brennan has been a champion and defender of attacks by C.I.A. drones that have killed thousands of people, including hundreds of children, far from any battlefield. These killings have occurred in Pakistan, Somalia and Yemen. Defense Secretary Leon Panetta has recently said the killing is likely to expand to Libya, Mali and Nigeria.

Mary Ellen O\'Connell
Mary Ellen O'Connell

Panetta, Brennan and others in the Obama administration defended these lawless killings the same way the Bush administration justified the unlawful treatment of detainees. Officials in both administrations have sought to win public support and overcome opposition by repeatedly asserting that what they are doing is effective and lawful. The tactical parallels are striking.

To create an illusion of legality, both administrations coined new labels for unlawful practices. President Bush's people coined the term "enhanced interrogation methods" to describe torture, and are still asserting that waterboarding is not torture but an effective, necessary tool to keep the country safe.

Brennan unveiled the phrase "hot battlefield" in a speech at Harvard Law in September 2011. A "hot battlefield" is the type found in traditional armed conflicts, where enemy fighters are killed without warning and it is permissible to also kill civilians, as long as their deaths are unintentional collateral damage and not disproportionate to the military objective.

The CIA is killing civilians away from "hot battlefields," but according to Brennan, there are other types of battlefields that are not "hot" but nevertheless lawful places to intentionally kill targets and unintentionally those nearby.

Opinion: Chuck Hagel is a friend to Israel

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



The parallels between the two administrations do not end with fabricated terminology. Lawyers in the Justice Department's Office of Legal Counsel in both administrations have written secret memos apparently analyzing the legality of these troubling practices. After the memos were written, waterboarding continued during the Bush administration. President Obama finally ended it with an executive order signed within days of his first inauguration. Guantanamo, however, stayed open, and targeted killing continued. We can safely assume that the memos conclude the United States may lawfully carry out such practices.

It is surprising to me that anyone feels the need to actually see these secret memos. International law clearly makes waterboarding, secret detention and targeted killing away from battlefields unlawful. The fact these practices have continued after the writing of the memos demonstrates the analysis is window dressing.

The New York Times and the American Civil Liberties Union, among others, have committed significant resources to obtaining the memos on targeted killing. It would, of course, be interesting to compare the specious arguments and omissions that must characterize these memos with those released by the Bush administration on interrogation and detention. Some citizens might actually need to see the memos to finally demand an end to the practice.

Torture haunts the CIA
2011: Brennan briefs on bin Laden raid
Who is John Brennan?

The greater importance of the secret memos does not concern what they contain, but the fact our democratic government believes legal analysis can be secret -- that how the government understands the law that regulates its conduct need not be made public. The judge in a recent case who ruled the memos might lawfully remain secret has confused the facts of a particular case with the law. Facts about particular operations can be kept secret, but not the law on which such operations are based. If the police seek a warrant, for example, in some cases the identity of a particular person sought under the warrant may be kept confidential. The law mandating the need for the warrant is public.

Game playing with the law does not amount to effective counter-terrorism strategy. Brennan admitted as much in his Harvard speech:

"I've developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe," he said. "It's an appreciation, of course, understood by President Obama. ... That is what I want to talk about this evening: how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws."

The CIA needs someone who will do what Brennan says, not what he does.

Follow us on Twitter @CNNOpinion

Join us on Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of Mary Ellen O'Connell.

ADVERTISEMENT
Part of complete coverage on
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
updated 2:51 PM EST, Thu December 18, 2014
Jeff Yang says the film industry's surrender will have lasting implications.
updated 4:13 PM EST, Thu December 18, 2014
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
updated 7:55 AM EST, Wed December 10, 2014
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
updated 12:34 PM EST, Thu December 18, 2014
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
updated 8:42 AM EST, Thu December 18, 2014
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
updated 12:40 PM EST, Tue December 16, 2014
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
updated 11:00 AM EST, Wed December 17, 2014
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
updated 4:54 PM EST, Tue December 16, 2014
Gayle Lemmon says we must speak out for the right of children to education -- and peace
updated 5:23 AM EST, Wed December 17, 2014
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
updated 1:39 AM EST, Wed December 17, 2014
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
updated 3:20 PM EST, Fri December 12, 2014
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
updated 9:56 AM EST, Mon December 15, 2014
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
updated 4:01 PM EST, Mon December 15, 2014
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
updated 9:53 AM EST, Mon December 15, 2014
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
updated 5:53 PM EST, Sun December 14, 2014
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
updated 10:50 AM EST, Sun December 14, 2014
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
updated 4:23 PM EST, Sat December 13, 2014
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
updated 9:26 AM EST, Fri December 12, 2014
Anwar Sanders says that in some ways, cops and protesters are on the same side
updated 9:39 AM EST, Thu December 11, 2014
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
updated 12:38 PM EST, Sun December 14, 2014
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
updated 1:28 PM EST, Thu December 11, 2014
Rip Rapson says the city's 'Grand Bargain' saved pensions and a world class art collection by pulling varied stakeholders together, setting civic priorities and thinking outside the box
updated 6:10 PM EST, Sat December 13, 2014
Glenn Schwartz says the airing of the company's embarrassing emails might wake us up to the usefulness of talking in-person instead of electronically
updated 5:33 PM EST, Fri December 12, 2014
The computer glitch that disrupted air traffic over the U.K. on Friday was a nuisance, but not dangerous, says Les Abend
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT