The post-9/11 era has witnessed a radical departure from the rule of law as embodied in the UN Charter and related documents. From the presidency of George W. Bush to the present, the US government has intervened more frequently in other countries – unilaterally, covertly, and often without reference to international legal norms. The Central Intelligence Agency has assumed paramilitary functions and operates what may be called a “gameboy war” with its drone program.
Among other rationalizations for these actions, the Justice Department white paper declares: “A lethal operation against an enemy leader undertaken in national self-defense...that is authorized by an informed, high-level official...would fall within a well-established variant of the public authority justification and therefore would not be murder.” By the terms of the white paper, an American citizen with presumed ties to a terrorist organization who eludes capture anywhere in the world would seem fair game for a drone strike (or a more personal assassination). Where does that leave the Fifth Amendment and its due process requirement?
A separate report this week by the Open Society Justice Initiative (“Globalizing Torture”) adds fuel to the fire by detailing the extent of the CIA’s detention and interrogation program around the world after the attacks of September 11, 2001. Among other things, the report concludes: “By engaging in torture and other abuses associated with secret detention and extraordinary rendition, the US Government violated domestic and international law…’
Whatever the outcome of today’s confirmation hearing, the release of the white paper has already brought some welcome transparency to the Obama administration’s policies on drones and torture.
But transparency and some hard questioning for Brennan at a confirmation hearing aren’t enough to really address the policy and the questions it raises.