America's Rules for Drone-Killing Americans Are More Torturous Than America Imagined

February 5, 2013: It's already been a very intriguing week in war news. It all started when a group of 11 senators from both sides of the aisle sent President Obama a very simple request. They wanted to see "any and all legal opinions" that justify the killing of American citizens, including targetted drone strikes, in the war on terror. That doesn't seem like an unreasonable request, especially since the government can't even seem to keep track of how many people they're killing. Surely, they must have some reference point to justify the bloodshed.

The government's been guarding this secret pretty closely, but something was bound to come out this week. The senators' letter arrived just three days before John Brennan, Obama's choice for the next CIA director and the mastermind of the government's drone playbook, is scheduled to sit for his confirmation hearing. As Obama's former top counterterrorism advisor, Brennan should be able to offer the senators some clarity about how the military and spy agencies decide when to kill and when to capture, and surely someone on the Senate Intelligence committee was planning to ask him when he took the stand. Thanks to some dogged reporting, though, the lawmakers didn't have to wait for Obama or Brennan to explain themselves. A leaked confidential document does it for them.

On Monday night, NBC's Michael Isikoff published a never-before-seen "white paper" from the Justice Department sent to members of the Senate Intelligence and Judiciary committees last year that details the legal reasoning behind drone strikes, specifically the ones that target United States citizens. This has been a burning question at least as long as we've known about two drone strikes in Yemen in September 2011, one that killed American born al Qaeda propagandist Anwar al-Awlaki and another that accidentally killed his son, who was reportedly looking for his father. (Said then White House press secretary Robert Gibbs at the time: "I would suggest that you should have a far more responsible father if they are truly concerned about the well being of their children.")

Al-Awlaki and his son had not been indicted, had not been tried and had not been convicted of any crimes. Unlike other American citizens suspected of--much less charged with--crimes, al-Awlaki did not get the due process that every other American does. Even more disturbing perhaps: nor did he nor anyone else, with the exception of a select few, know why exactly he landed on a kill list. Now we have some idea, thanks to a document that some have likened to the "torture memos" that gave the Bush administration its own very controversial extra-judicial hammer.

Brennan is without a doubt one of the people that helped make that decision and dozens of other questionable calls as part of the country's drone program. Brennan acknowledged the attacks in a speech last year and argued that they were "consistent with the inherent right of self-defense." The newly uncovered Justice Department white paper, a brief reportedly drafted last summer, backs up that claim and provides some strikingly ambiguous parameters for ordering hits on US citizens. Here's the crux:

A lawful killing in self-defense is not an assassination. In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly,  the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.

Elsewhere in the paper, the Justice Department clarifies that Americans who are believed to be "senior operational leaders" of al Qaeda or "an associated force" can also be targeted, even if they're not actively plotting to attack the United States. All it takes to make it on the kill list is the government identifying a US citizen who has "recently" been involved in "activities" that might lead to an attack; they needn't be involved in an "imminent" attack. As Isikoff points out, the document fails to define both "recently" and "activities," so the limitations of the government's protocol remain vague at best. Mother Jones's Adam Serwer sums up the legal logic of the White House's extra-judicial killings like this: "If a high-ranking administration official does it, it's not illegal."

The memo also disregards international law while conferring upon the White House the ability to kill over seemingly any country. Another central problem raised by the document is its preference on killing when capturing an enemy is not feasible. Critics of drones point out that while the technology removes Americans from harms way, it also makes it seductively easy to squash the enemy with the push of a button. Yesterday Senator Ron Wyden wrote to the president demanding to know which standard is used to determine whether it is feasible to capture a particular American. As Alexandra Prasow of Human Rights Watch points out, "By affirmatively saying to the public that the US government seeks to capture people rather than kill them they've set a standard they should be held to. But when you actually read the legal authorization you realize they have defined themselves out of the standard."

As Brennan himself noted in a speech last year--the only known address about drones by an administration official--the standards applied to drone strikes are not merely concerns for legal scholars. "Even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard-bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength." He pointed to the danger of America's double standards backfiring. "President Obama and those of us on his national security team are very mindful that as our nation uses this technology, we are establishing precedents that other nations may follow, and not all of those nations that's--and not all of them will be nations that share our interests or the premium we put on protecting human life, including innocent civilians. If we want other nations to use these technologies responsibly, we must use them responsibly."

Of course, as Brennan and everyone who has seen or heard about Zero Dark Thirty, capturing terrorism suspects rather than killing them isn't so easy either. He was already a 25-year veteran of the CIA when the Obama administration nominated him to run the agency in 2008. He withdrew his name, however, after critics ganged up on him for his alleged involvement in the government's enhanced interrogation program. Brennan's colleagues don't remember him actively opposing techniques like waterboarding, but since he wasn't in a policy-making position at the time, Brennan's been able to distance himself from the controversy. Nevertheless, Brennan should expect to answer some question about the 6,000-page classified Senate document detailing the CIA's interrogation program. Apprantly, though, he hasn't even bothered the read the 300-page executive summary, much less the entire document.

None of these things have happened by accident. It's certainly no coincidence that the skeptical senators waited until the week of Brennan's hearing to ask for clarity on how the Obama administration justifies killing America citizens, and it's definitely not a fluke that NBC published a top secret document from last summer, before the White House had a chance to respond to the senators' letter. The secret-spilling is bound to continue, too. On Tuesday, the Open Society Justice Initiative published its own 216-page report on the government's post-9/11 interrogation program under the unabashed title, "Globalizing Torture: CIA Secret Detention and Extraordinary Rendition." Spurred by Isikoff's scoop, journalists are already doubling down on Brennan and the past decade of dodgy things he, like many CIA officials before him, has done—or helped design.

So the week will probably get weirder. But don't expect too much clarity from Brennan at the end of it. The courts could eventually get involved with the legal issues, and next year, a new legal regime for drones may emerge, thanks to a new playbook by Brennan. But for now the CIA, has free rein to continue its secret drone program over countries with whom the US is not at war. And of Brennan's confirmation hearing, National Security Council spokesman Tommy Vietor said, "There's no indication of any trouble." In other words, Brennan will be confirmed and will do his best CIA agent impression in the face of whatever harsh questions the Senate throws at him. Only it's not an impression, because Brennan is a CIA agent. This man keeps secrets for a living.

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