Deputy National Security Advisor John Brennan Remarks

Some comments [by a former Obama legal adviser and critic of broad claims of executive power] on recent remarks by Deputy National Security Advisor John Brennan seems a fitting thing to discuss since they address some of my themes and answer some of the strong criticism of Obama from some on the left that to me seems rather skewered, this from someone far from enthused about our use of force. In part, an op-ed is quoted:

It has simply not been more of the same. The CIA’s “black sites”–secret prisons in other countries–are closed. Enhanced interrogation is outlawed. The laws of war have been restored. Guantanamo remains open not because Obama wants it that way, but because Congress has barred the expenditure of funds to bring its prisoners to the United States for trial.

Thus, to pretend that there has been no rejection of what came before–of what defined the “war”–is a mistake. It took court decisions, public opposition, congressional changes, new leaders within the Bush administration, and finally a new president to end the war on terror as we knew it.

And the effort was worth it. Because we got better.

What of criticism of drone attacks, even as a reply to criticism of use of the death penalty? As the analysis shows, the attacks are not open-ended summary use of force:

It’s evident that a principal purpose of this section of the speech concerning the use of force, especially outside the “hot battlefield” of the Af/Pak theater, is to further distance the Administration from the “Global War on Terror” framework that infected U.S. characterizations of our counterterrorism strategy shortly after September 11th. ”[W]e are at war with al-Qa’ida,” emphasizes Brennan–not with all terrorists the world over. (Brennan explains that our “ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense. This is not news, or controversial. See, e.g., U.N. Resolution 1373 (Sept. 28, 2001). There is no such self-defense rationale available as a matter of the jus ad bellum with respect to all international terrorist groups.)

The use of this power can be attacked on policy grounds, and in respect to some target areas perhaps legally, but to simply speak of it like we are going around assassinating people willy-nilly is exaggeration on steroids. We also are not merely picking some groups worldwide we don't like and killing them. The group is one that attacked us and membership is worldwide and continues to wish to do us harm, including by military means. The use of force was authorized by Congress (2001 AUMF) and (in various cases) international law. Cf. torture and cruel/inhumane treatment.

Aside from the fact (unlike those in custody) that the people being killed (see, e.g., drone attacks in Pakistan  to see who these people tend to be ... the collateral damage of civilians granted, underlining the problems with any use of military force) don't have some sort of constitutional right of protection. Also:

Of course, there will be contexts, particularly in some of the locations to which Brennan is referring, where capture is infeasible, for various reasons of logistics, technology, diplomacy, the nature of the consent the U.S. has obtained from other nations, etc. But Brennan’s remarks should put to rest the notion–for which I’ve yet to see any good supporting evidence–that the U.S. policy is now to kill persons who it would have apprehended several years ago.

Any "policy" isn't likely to be applied 100% without breach (see comment there on OBL, which is as the reply notes, not exactly the normal case though some harp on it like it was), but this has bite. Too much force, secrecy and so forth continues, but there are shades of gray indeed.