John O. Brennan was confirmed as head of the Central Intelligence Agency last week, after the confirmation was held up for 13 hours by a filibuster by Rand Paul and other Senate libertarians or tea partiers. Senator Ted Cruz of Texas gave as his reason for the attempt to delay the vote his concerns that the Obama administration has a secret doctrine that it can kill Americans by drone at will, asking if there was a precedent:
“for the proposition that this administration seems willing to embrace, or at least unwilling to renounce explicitly and emphatically, that the Constitution somehow permits, or at least does not foreclose on, the U.S. government killing a U.S. citizen on U.S. soil who is not flying a plane into a building, who is not robbing a bank, who is not pointing a bazooka at the Pentagon, but who is simply sitting quietly at a cafe, peaceably enjoying breakfast?”
Attorney General Eric Holder sent over to Paul a statement that the president does not have the authority to drone to death an innocent noncombatant, which ended the filibuster.
It is alarming that Cruz appears to have thought that there are circumstances in which a US citizen *could* legitimately be droned to death on American soil.
Obama and Brennan brought this kind of humiliation on themselves by their extreme secrecy about the drone program, a secrecy that even a federal judge castigated as paradoxical. As a classified endeavor handled in large part by the CIA, it cannot be discussed publicly, cannot be probed by the public. It is a policy for insiders with a high security clearance (apparently the 15 senators on the Senate Select Committee on Intelligence are among the few public officials who are kept in the loop. Two of them, Marco Rubio and Saxby Chambliss, joined the filibuster of Brennan, so even they seem not to feel that the Obama administration is leveling with them.
Ironically, Brennan in the past was a severe critic of the kind of secrecy about covert operations that the Obama administration has championed with regard to the drone program. In a 2008 interview while in the private sector, he said:
“What is needed is a 'fair and open discussion' about US counterterrorism policy, Brennan concludes. While some aspects are too classified to be discussed openly, many are not. But when ‘you stifle discussion— and make decisions in secrecy and vacuums— you run the risk of alienating portions of the US population and triggering questions about what else may be going on.’”
To be fair, in his confirmation hearing, Brennan advocated turning the drone program over to the Department of Defense (which is under civilian authority), and he admitted that as it has been practiced up till now it may well contravene international law. Maybe Brennan the CIA head can undo some of the damage to American democracy and to international law he admits the drone policy has done.
Editor's Note: This essay originally appeared on March 8, 2013, on Informed Comment: Thoughts on the Middle East, History and Religion, a website featuring commentary by Professor Juan Cole. It was reproduced here with the consent of Professor Cole.