Brennan, the former CIA officer who is now the White House’s chief counterterrorism adviser, was apparently up for the same nomination at the start of the Obama administration but reportedly withdrew because of trouble over his support, which he denies, for coercive interrogation. At the moment, he seems likely to cruise to nomination in the Senate, though Republicans may slow the vote to extract more information from the administration about its handling of the attack on the U.S. consulate in Benghazi last September. Hagel, of course, faces much more trouble because of his positions on Israel, gays, military spending, Iraq, and Iran.
The Senate probably considers the torture issue water under the bridge. Senators seem even less likely to question Brennan’s murky role in past government programs that were offensive to constitutional and statutory law, including the National Security Agency’s domestic surveillance program, authorized by George W. Bush’s White House. Congress, after all, more or less legalized the program, immunized telecommunications companies for their role in it (with Brennan’s support), and recently reauthorized the new statute.
Still, with drone warfare becoming more controversial of late, the new Congress may rouse itself to provide some oversight, or even assert its power to limit it. If so, Brennan’s nomination is a good place to start.
Brennan is a key architect of the review process that the Obama administration undertakes to decide who to kill via airstrike from unmanned aerial vehicles (drones) — in Pakistan, Yemen, Somalia, and beyond. The White House assures us that they conduct such strikes only after solemn debate. But they show no interest in establishing any checks and balances to control strikes. The administration won’t release documents explaining its legal position on the matter, so it’s hard to characterize their views exactly. That said, their position seems to be that because Congress in 2001 authorized a war against the organizers of the 9/11 terrorist attack and those who aided them, the president can kill (or detain) anyone, anywhere, even U.S. citizens.
[See a collection of political cartoons on defense spending.]
In one sense, that is narrower than the Bush administration’s take, which was that presidents did not even need congressional authorization to kill and detain people. In another sense, Obama’s take is more dangerous. Attorney General Eric Holder argues that executive branch deliberations can satisfy Americans’ due process rights — that the judicial need not play a role. That’s odd, because in a war, U.S. citizens on the enemy side are treated as combatants, so no constitutional rights protect them. The due process argument seems to take us out of the realm of war powers and imply that the president can simply decree that we should be jailed or executed. As the American Civil Liberties Union notes: