Initial Reaction to Brennan’s Speech

by Michael W. Lewis

At least from the text, John Brennan seems to have positioned the speech that he delivered yesterday at the Wilson Center (that Marty linked to) as the capstone of the Obama Administration’s transparency campaign on drones and targeted killings in the conflict with al Qaeda. He made a point of referencing the string of other Administration figures that have addressed various aspects of this issue (Koh, Johnson, Holder and Preston) before expanding (albeit marginally) upon what had gone before.

There was little truly new in this speech, but it did in many instances confirm things that had previously been only obliquely referenced in a way that crystallizes the US position on a variety of matters. In contrast to his rather cagey discussion of drones several months ago at Harvard, Brennan conclusively acknowledged that the United States is using drones to conduct targeted killings in Afghanistan and elsewhere. Although he did not include an acknowledgement of the CIA’s drone program, this was a far more forthright discussion of drones and their role in counterinsurgencies than we have seen before.

Brennan also reiterated the need to respect international law and sovereignty that we first heard in Koh’s speech two years ago. He made it clear that these strikes are conducted either with the consent of the state on whose territory they occur or in cases in which the “host” state has proven unwilling or unable to incapacitate the threat. His lengthy description of the principles of necessity, distinction, proportionality and humanity made it apparent that the US views the law of armed conflict as the governing law applicable to such strikes based on an ongoing conflict with al Qaeda.

Building on Holder’s speech at Northwestern last month about the standards for targeting individuals, Brennan confirmed the importance of only targeting those with an operational involvement in al Qaeda and he emphasized that the “feasibility of capture” requirement is taken very seriously. Although he did note that feasibility of capture is determined not only by the physical/logistical difficulty in effecting capture but also with reference to the risks that our soldiers would have to face in completing the task.

Perhaps the most important amplification on previous positions that Brennan gave put the use of lethal force within the context of the larger goal, which is the defeat of al Qaeda. “We do not engage in lethal action in order to eliminate every single member of al-Qa’ida in the world.” Rather, he stated that on a number of occasions the opportunity to employ lethal force was passed up because it would not further that goal. This seemed to be the Administration’s way of telling critics that it takes the concept of blowback seriously and that each decision to employ lethal force is taken with the larger strategic picture in mind. But it also leaves no doubt that the Administration considers that decision to be one of Executive discretion.

The one piece of new ground that Brennan did cover was his acknowledgment that some form of post-action review is taken for every strike. This is something that a number of people, including myself, have said was a necessary component of any targeted killing program. Brennan did not provide details about the independence of such a review and others have led me to believe that it is not as independent or robust as many would wish, but the existence of post-action review has been confirmed.

My final overall observation is that this seemed to be a finale. We have had a four or five major speeches on this topic since the beginning of the year and my sense is that this was the last one for awhile. By referencing the other speeches and closing with an explicit discussion of the balance between transparency and national security (which Brennan claims to have struck by making all sides of the transparency debate uneasy) I believe he was signaling that this is as much as the Administration is willing to say for now on this issue.

3 Responses

  1. Response…
    I will have to check my printout of his speech again, but I thought that consent or unwilling or unable were not set forth as exclusive grounds but as examples.  In any event, they do not limit the inherent right of self-defense against non-state actor armed attacks under UN 51 (which is an inroad on “sovereignty” consented to in advance by all members of the UN).  In any event, one can argue that a foreign state is “unable” within a very short time frame, e.g., when the rockets are being fired from its territory every two minutes.

  2. Response…
    Well, yes, he did not restrict the right of the United States under international law to use “our inherent right of national self-defense … outside of an active battlefield, AT LEAST WHEN the country involved consents or is unable or unwilling to take action against the threat” posed by our enemies.  And, yes, international law does not require consent or that the foreign state is unwilling or unable.  39 Denver J. Int’l L. 569, 580-81 (2011).
    I take issue, however, with his suggestion that the President has a constitutionally-based power “to protect the nation from any imminent threat of attack.”  Note that an “imminent threat” is not even a threat, but one that is allegedly imminent.  I wish that people would stop using this phrase, since they probably have in mind “threat of imminent attack” and, if they do not, they are completely out of line with accepted principles of international law (because you cannot use military force against something that is not even a threat).  I am also one who does not accept the claim that a state can use military force prior to the initiation of a process of “armed attack” within the unavoidable language and meaning of UN article 51 and general patterns of practice and opinio juris.  Therefore, I would not accept the claim by many that “anticipatory” self-defense (prior to the start of an armed attack) should be permissible; and these claimants do not accept the claim by a few that “preemptive” self-defense should be tolerated even when there is no alleged imminent attack (e.g., when an armed attack is not yet imminent — for example, with respect to the Israeli attack on an Iraqi nuclear reactor that was condemned as unlawful by the UN Security Council).
    And what power does the President have in this regard under the U.S. Const.?  I am one who accepts the fact that the President has the constitutionally-based power to execute a competence under international law to use force in self-defense once an armed attack begins, al la UN 51, with or without any authorization from Congress, because the President has the duty (competence) under U.S. Const. Art. II, Sec. 3 to faithfully execute the Laws — and others disagree.  The Obama Administration even pretends that the U.S. is at war with al Qaeda but was not at war with Libya in 2011 (perhaps because Professor Harold Koh and President Obama had claimed that the President has no power to go to war, or would not go to war, without congressional approval) — so we were in an Alice in Wonderland conflict in Libya.  See forthcoming Emory Int’l L.J. article: Constitutionality of U.S. Participation in the United Nations-Authorized War in Libya (2012) — at the printers.

  3. Response…
    p.s.  al Qaeda is involved in continuing armed attacks against the United States, U.S. military personnel in the theatre of the Afghan international armed conflict (and it is “international” in so many self-evident ways and, therefore, our soldiers have “combatant” status and “combatant immunity” for lawful acts of war during that international armed conflict, which they would not have under the laws of war if that conflict was a NIAC, which it is not), and other U.S. nationals abroad — which allows responsive measures of self-defense under UN article 51 (whether or not we can be at “war” with al Qaeda as such, which is not possible under traditional internaitonal law).

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