John Brennan's Biggest Confirmation Hurdle: Are Drone Strikes a Violation of our Constitution?

In 1972, the Black September terrorist organization kidnapped and massacred 11 members of the Israeli Olympic team. In response, Israel adopted a position of "pre-emptive" strikes against any strategist, financier, or assassin linked to the organization. The willful execution of "non-soldiers" away from commonly defined battlegrounds changed the nature of modern warfare, and we are still seeing the ripples of that escalation today. 

If a soldier spots a suicide bomber in a crowd, few would argue he would not be justified in shooting him before he could detonate. But what if the bomber was 20 feet away? Should the soldier try to arrest him instead and gather intelligence? What if the bomber was inside an apartment, surrounded by the explosives he’s constructing into a suicide vest? Should a sniper shoot him through the window to try to minimize the danger? 

You can see how with each scenario the lines start to blur. Every tactical decision has the potential to cause civilian deaths, endanger soldiers, and diminish acquired intelligence.

Initially, Americans accepted drone use as a "surgical" means to strike evasive targets and took comfort in the added benefit that soldiers on the ground had a helpful robotic ally. However, this method of execution-by-air has evolved into the military's main combat platform, and now includes the targeting of Americans themselves.


John Brennan faces his Senate hearing for the position of CIA director on Thursday. As the chief architect behind the evolving use of drone warfare, he is going to have to address the constitutional legality of circumventing the Fifth Amendment’s due process clause.

After last year’s drone assassination of Yemeni cleric Anwar Al-Awlaki (an American citizen) Attorney General Eric Holder gave a speech outlining the administration's legal justification for the attack. He stipulated that targeting Americans was permissible only if a high-ranking government official deemed the target “an imminent threat of violent attack.”  

The recently leaked Justice Department memo, however, reveals a loose definition of who can be deemed a "terrorist" or "associated force." Moreover, it shows that no intelligence of an "imminent threat" is required, nor does the target have to be engaged in an active plot against America. Execution is justified if capture is "infeasible" or if the country where the targets are hiding might not consent to U.S. operations. 

The immediate concern was that the U.S. government had appeared to give itself near limitless powers to execute American citizens, using a swarm of flying robotic death-machines. Just like Black September's targeting of civilians and the reciprocal assassination responses by Israel, America has found a way to up the stakes against those who orchestrated 9/11. Unfortunately, this new war-paradigm has the potential to ensnare any region of the planet deemed to be "harboring terrorists." 

Drone critics are justified in their concern. One would have to have complete trust in the wisdom, competence and ethics of a government and their successors to allow them such unchecked power. Is the government accurately identifying people who pose a threat to national security? Are they utilizing drones as a measure of last resort only because no other feasible means are available? Or are they ignoring traditional intelligence gathering methods for the convenience of airborne robotic spies? The kind of faith we’re being asked to put in our leadership flies against the very reason the Fifth Amendment exists.

On April 30, 2012, John Brennan was Obama’s assistant for counterterrorism. In a speech in Washington addressing the use of unmanned drones he said the following:

"…let me say it as simply as I can.  Yes, in full accordance with the law — and in order to prevent terrorist attacks on the United States and to save American lives — the United States Government conducts targeted strikes against specific Al-Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones…These targeted strikes are legal."

It would seem that the administration was eager to be as "transparent" as possible about the drone program, but what are the actual legal justifications Brennan used to keep this program in full "accordance with the law?

Brennan: "As a matter of domestic law, the Constitution empowers the President to protect the nation from any imminent threat of attack.  The Authorization for the Use of Military Force — the AUMF — passed by Congress after the September 11th attacks authorizes the president 'to use all necessary and appropriate force' against those nations, organizations and individuals responsible for 9/11.  There is nothing in the AUMF that restricts the use of military force against Al-Qaeda in Afghanistan."  

These overly vague definitions are the exact source of our current dillema. What would the Constitution deem an imminent threat or attack? What are the particular situational distinctions that would validate the use of drones? What aspects of drone use qualify as "necessary and appropriate force?" Who in the administration, exactly, qualifies as a "high level official" with authority to make these decisions? There is very little in these stipulations that control how a president or his underlings could be held accountable for the choices they make.

These are the questions that need to be addressed to ensure this massive increase in power doesn’t digress into a tyrannical global web of control. The truth of the matter is that drones aren’t going anywhere. They are an essential platform of security and in a few years time will comprise a canopy of advanced surveillance and weaponry that fills the sky and exo-atmosphere alike. They will be able to deliver their payload anywhere on the planet with incredible speed, biometrically track people from great distances, and even take out enemy satellites. It is a necessary insurance policy and a response to the evolution of technology. However, it remains our dilligent responsibility to ensure that our government’s ability to incinerate human beings from the sky is checked with oversight, accountability, transparency, and scrutiny.

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Roy Klabin

Graduate student at Columbia University School of Journalism. I cover crime & corruption, social injustice and cartoon politics.

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