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 8:42 AM EDT, Mon August 18, 2014
The former U.K. prime minister and current U.N. envoy says there are 500 days left to fulfill the Millennium Goals' promise to children.
updated 9:10 AM EDT, Mon August 18, 2014
Julian Zelizer says the left mistrusts Clinton but there are ways she can win support from liberals in 2016
updated 7:49 AM EDT, Tue August 19, 2014
Peter Bergen says the terror group is a huge threat in Iraq but only a potential one in the U.S.
updated 1:34 PM EDT, Sat August 16, 2014
Mark O'Mara says the way cops, media, politicians and protesters have behaved since Michael Brown's shooting shows not all the right people have learned the right lessons
updated 11:23 AM EDT, Sun August 17, 2014
Retired Lt. Gen. Mark Hertling says the American military advisers in Iraq are sizing up what needs to be done and recommending accordingly
updated 3:41 PM EDT, Fri August 15, 2014
Marc Lamont Hill says the President's comments on the Michael Brown shooting ignored its racial implications
updated 5:46 PM EDT, Fri August 15, 2014
Joe Stork says the catastrophe in northern Iraq continues, even though many religious minorities have fled to safety: ISIS forces -- intent on purging them -- still control the area where they lived
updated 6:26 PM EDT, Thu August 14, 2014
Tim Lynch says Pentagon's policy of doling out military weapons to police forces is misguided and dangerous.
updated 9:15 AM EDT, Fri August 15, 2014
S.E. Cupp says millennials want big ideas and rapid change; she talks to one of their number who serves in Congress
updated 7:57 PM EDT, Thu August 14, 2014
Dorothy Brown says the power structure is dominated by whites in a town that is 68% black. Elected officials who sat by silently as chaos erupted after Michael Brown shooting should be voted out of office
updated 7:49 AM EDT, Thu August 14, 2014
Bill Schmitz says the media and other adults should never explain suicide as a means of escaping pain. Robin Williams' tragic death offers a chance to educate about prevention
updated 11:05 AM EDT, Fri August 15, 2014
Nafees Syed says President Obama should renew the quest to eliminate bias in the criminal justice system
updated 4:24 PM EDT, Thu August 14, 2014
Eric Liu says what's unfolded in the Missouri town is a shocking violation of American constitutional rights and should be a wake-up call to all
updated 3:22 PM EDT, Wed August 13, 2014
Neal Gabler says Lauren Bacall, a talent in her own right, will be defined by her marriage with the great actor Humphrey Bogart
updated 6:56 AM EDT, Fri August 15, 2014
Bob Butler says the arrest of two journalists covering the Ferguson story is alarming
updated 4:35 PM EDT, Wed August 13, 2014
Mark O'Mara says we all need to work together to make sure the tension between police and African-Americans doesn't result in more tragedies
updated 4:06 PM EDT, Mon August 18, 2014
Pepper Schwartz asks why young women are so entranced with Kardashian, who's putting together a 352-page book of selfies
updated 7:08 PM EDT, Wed August 13, 2014
Michael Friedman says depression does not discriminate, cannot be bargained with and shows no mercy.
updated 8:51 AM EDT, Tue August 12, 2014
Mary Allen says because of new research and her own therapy, she no longer carries around the fear of her mother, which had turned into a generalized fear of everything
updated 3:59 PM EDT, Tue August 12, 2014
Gilbert Gottfried says the comedian was most at home on the comedy club stage, where he was generous to his fellow stand-up performers
updated 4:54 PM EDT, Tue August 12, 2014
Iris Baez, whose son was killed by an illegal police chokehold, says there must be zero tolerance for police who fatally shoot or otherwise kill unarmed people such as Michael Brown
updated 8:46 AM EDT, Tue August 12, 2014
Maria Cardona says as he seeks a path to the presidency, the Kentucky Senator is running from his past stated positions. But voters are not stupid--and they know how to use the internet
updated 10:19 PM EDT, Tue August 12, 2014
Gene Seymour says the shock at the actor and comedian's death comes from its utter implausibility. For many of us over the last 40 years or so, Robin Williams was an irresistible force of nature that nothing could stop.
updated 3:51 PM EDT, Tue August 12, 2014
Soledad O'Brien says the story of two veterans told in a documentary airing on CNN shows the challenges resulting from post-traumatic stress
updated 11:25 AM EDT, Tue August 12, 2014
LZ Granderson says we must not surrender to apathy about the injustice faced by African Americans
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT