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 5:01 PM EDT, Wed October 22, 2014
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
updated 12:19 PM EDT, Thu October 23, 2014
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
updated 6:35 PM EDT, Tue October 21, 2014
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
updated 9:36 AM EDT, Fri October 24, 2014
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
updated 6:08 PM EDT, Thu October 23, 2014
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
updated 5:54 PM EDT, Thu October 23, 2014
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
updated 12:21 PM EDT, Fri October 24, 2014
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
updated 4:06 PM EDT, Tue October 21, 2014
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
updated 10:14 AM EDT, Thu October 23, 2014
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
updated 12:00 PM EDT, Tue October 21, 2014
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
updated 7:35 AM EDT, Tue October 21, 2014
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
updated 9:12 AM EDT, Tue October 21, 2014
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
updated 2:51 PM EDT, Tue October 21, 2014
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
updated 6:07 PM EDT, Tue October 21, 2014
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
updated 9:29 AM EDT, Mon October 20, 2014
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
updated 4:12 PM EDT, Mon October 20, 2014
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
updated 11:36 PM EDT, Sun October 19, 2014
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
updated 8:23 AM EDT, Mon October 20, 2014
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
updated 10:21 PM EDT, Sun October 19, 2014
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
updated 8:05 AM EDT, Wed October 22, 2014
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
updated 9:00 AM EDT, Mon October 20, 2014
The world's response to Ebola is its own sort of tragedy, writes John Sutter
updated 4:33 PM EDT, Fri October 17, 2014
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
updated 1:22 PM EDT, Sat October 18, 2014
When you hear "trick or treat" this year, think "nudge," writes John Bare
updated 12:42 AM EDT, Sat October 18, 2014
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
updated 9:45 AM EDT, Fri October 17, 2014
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
updated 4:43 PM EDT, Thu October 16, 2014
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
updated 4:58 AM EDT, Sat October 18, 2014
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
updated 9:42 AM EDT, Fri October 17, 2014
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
updated 8:21 AM EDT, Fri October 17, 2014
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
updated 4:27 PM EDT, Thu October 16, 2014
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
updated 12:07 AM EDT, Thu October 16, 2014
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
updated 7:53 AM EDT, Wed October 15, 2014
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
updated 12:29 AM EDT, Thu October 16, 2014
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
updated 12:53 PM EDT, Mon October 20, 2014
Paul Callan says the Ebola situation is pointing up the need for better leadership
updated 6:45 PM EDT, Wed October 15, 2014
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
updated 1:00 PM EDT, Wed October 15, 2014
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
updated 7:01 PM EDT, Wed October 15, 2014
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
updated 1:44 PM EDT, Tue October 14, 2014
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
updated 9:35 AM EDT, Sat October 18, 2014
Stop thinking your job will make you happy.
updated 10:08 PM EDT, Tue October 14, 2014
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
updated 7:25 AM EDT, Tue October 14, 2014
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
updated 9:03 AM EDT, Mon October 13, 2014
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
updated 4:04 PM EDT, Tue October 14, 2014
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
updated 9:07 AM EDT, Mon October 13, 2014
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
updated 6:50 PM EDT, Mon October 13, 2014
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
updated 11:43 AM EDT, Sat October 11, 2014
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT