The Wildly Insufficient 'Kill-List' Reforms of John Brennan

He's reportedly proposed making drone strikes less objectionable in much the same way Bush Administration official Steven Bradbury made torture less objectionable.

Reuters

Is John Brennan, President Obama's choice to lead the CIA, actually a reformer who is "at the forefront of checking the president's powers to kill by drone," as Andrew Sullivan* has just argued? As evidence, he cites a Dan Klaidman article that's worth excerpting in a couple of places.

Let's begin here:

Three senior administration officials tell Newsweek that John Brennan, Obama's top counterterrorism adviser, has proposed significant bureaucratic shifts that could place the CIA's drone program on a much tighter leash.

The article goes on to report the following:

Known internally simply as "the playbook," it is a highly classified initiative to codify and institutionalize the standards and procedures for the government's targeted killing program. Brennan, a tough-minded spook who spent 25 years at the CIA, is unapologetic about the secret drone program. Indeed, he has been in many ways its most energetic public defender (if obliquely, since it remains covert). But behind the scenes he has also been an advocate for more transparency, placing counterterrorism operations on a firmer legal footing, and imposing reasonable restraints on the CIA's operators.

Brennan's "playbook" is more than simply an effort to enshrine the rules of the road for targeted killing. He is seeking to fundamentally reform the process by which targeted-killing decisions are made. One key proposal, according to three administration officials who have been briefed on the matter, is to harmonize the CIA's and the military's decision-making process for lethal strikes. This would not be just a bureaucratic rearranging of the deck chairs. Although there has been White House supervision, the CIA has for most of Obama's presidency operated with a relatively free hand in choosing its targets and developing thresholds for when to take a shot. By contrast, when the military prepares for a killing operation, dozens of officials from across the national security bureaucracy assemble via secure video conference to debate the decision. Representatives from the military, the National Security Council, the State Department, the intelligence community, and other agencies hash out the legal authorities, policy considerations, diplomatic sensitivities, and potential risk to civilians before a recommendation finally works its way up the chain to the president himself.

Many critics of the drone program, myself included, regard these alleged proposed changes as improvements on the status quo, but let's be clear about exactly how little that actually means. Internal executive-branch procedural changes may be prudent, but that does not make them a "check" on President Obama, who can reverse them at his pleasure, as can any of his successors in the White House. If Brennan were truly an advocate of "checking the president's power to kill by drone," he would be calling for constraints to be imposed by the judiciary or the legislature.

Here's an analogy that may be especially persuasive to Sullivan and other Obama supporters. In August 2002, Jay S. Bybee wrote a legal memo about the proper procedure for waterboarding:

In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of "suffocation and incipient panic," i.e., the perception of drowning. The individual does not breathe any water into his lungs.

During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is not in fact drowning. You have also orally informed us that it is likely that this procedure would not last more than twenty minutes in any one application.

But over time, Bush Administration officials decided that it was important to put additional constraints on the people who strapped blindfolded prisoners to a board and forced water into their lungs. Thus this 2005 memo from Steven Bradbury (emphasis added):

The "waterboard". In this technique, the detainee is lying on a gurney that is inclined at an angle of 10 to 15 degrees to the horizontal, with the detainee on his back and his head toward the lower end of the gurney. A cloth is placed over the detainee's face and cold water is poured on the cloth from a height of approximately 6 to 8 inches. The wet cloth creates a barrier through which it is difficult --  or in some cases not possible -- to breathe. A single "application" of water may not last for more than 40 seconds, with the duration of an "application" measured from the moment when water -- of whatever quantity -- is first poured onto the cloth until the moment the cloth is removed from the subject's face. When the time limit is reached, the pouring of water is immediately discontinued and the cloth is removed. We understand that if the detainee makes an effort to defeat the technique (e.g. by twisting his head to the side and breathing out of the corner of his mouth), the interrogator may cup his hands around the detainee's nose and mouth to dam the runoff, in which case it would not be possible for a detainee to breathe during the application of the water.

In addition, you have informed us that the technique may be applied in a manner to defeat efforts by the detainee to hold his breath by, for example, beginning an application of water as the detainee is exhaling. Either in the normal application, or where countermeasures are used, we understand that water may enter -- and may accumulate in -- the detainee's mouth and nasal cavity, preventing him from breathing. Either in the normal application, or where countermeasures are used, we understand that water may enter -- and may accumulate in -- the detainee's mouth and nasal cavity, preventing him from breathing. In addition, you have indicated that the detainee as a countermeasure may swallow water, possibly in significant quantities. For that reason; based on advice of medical personnel, the C.I.A. requires that saline solution be used instead of plain water to reduce the possibility of hyponatremia (i.e., reduced concentration of sodium in the blood) if the detainee drinks the water.

When these memos were made public I don't recall Andrew Sullivan or any else describing Steven Bradbury as someone "at the forefront of checking the president's power to torture prisoners." This despite the fact that he was apparently a voice for constraining American torturers. Does Sullivan see why casting Brennan as a reformer grates on those of us who believe that, just as it's never morally or legally permissible for the president to order torture, it is never morally or legally permissible for the president to secretly kill an American citizen without any due process?

Or consider "signature strikes," where the United States kills people whose identity it doesn't know. According to Klaidman, "Under new protocols, the strikes, sometimes referred to as 'crowd killing,' may still be permitted but would likely be more heavily regulated." Would Sullivan have found it to be "an encouraging development" if a Bush nominee for head of the CIA had argued that under new protocols, waterboarding would still be permitted but would be more heavily regulated? It's impossible for me to imagine that he would have reacted that way, and given his opposition to signature strikes, I don't see why he is willing to give Brennan a pass on them.

Let's return to the earlier Klaidman excerpt:

Brennan, a tough-minded spook who spent 25 years at the CIA, is unapologetic about the secret drone program. Indeed, he has been in many ways its most energetic public defender (if obliquely, since it remains covert). 
But behind the scenes he has also been an advocate for more transparency, placing counterterrorism operations on a firmer legal footing, and imposing reasonable restraints on the CIA's operators.

Here's another way to phrase the same information: Brennan has been the most energetic public defender of a secret drone program despite that fact that he knows it is not yet on firm legal footing -- though internally calling for more transparency and constraints on the CIA, he was perfectly willing to administer and publicly defend a program that lacked those most basic safeguards. Does that make him more or less trustworthy in a position as powerful as CIA director?

A final thought. Casting John Brennan as an essential voice for reform suggests that even the modest changes he is proposing, which are insufficient for reasons I've outlined, go farther than a lot of other people in the Obama Administration would like. If that's in fact true, shouldn't Sullivan and other Obama Administration defenders be asking why their champion tolerates an executive branch disproportionately composed of people with Cheneyesque views on executive power? 
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*In a recent post I stated that Sullivan has no evidence for the assertion that John Brennan has "changed" while in power. In fact, Sullivan points to Dan Klaidman's reporting as evidence. Although I remain unpersuaded, I shouldn't have written that Sullivan had no evidence for his claim, and I apologize for inadvertently mischaracterizing his position.

I've updated the original post.