Yesterday, I attended the Senate Intelligence Committee’s hearing on the nomination of John Brennan to lead the CIA. More accurately, I attended five minutes of the hearing, before Senator Dianne Feinstein (D-CA) kicked out the public after repeated criticism of Brennan’s record on torture, human rights, and extrajudicial assassination and executive fiat.

If the rest of the committee members did their jobs as well as Senator Ron Wyden (D-OR), the nation wouldn’t need protesters to ask the tough questions that no one in the White House or CIA has answered.

Some Senators raised important questions, but the hearing was generally disappointing: Brennan bobbed and weaved, evaded accountability for documented abuses, and refused either to offer more information to Congress, or to acknowledge that torture (which the CIA recently committed before obstructing justice by destroying dozens of videotapes documenting torture) is illegal.

Here’s a verse I wrote to interrupt the hearing, riffing on the strategic national security risks presented by drones (whose tactical usefulness is also dubious) and torture (which we know to be illegal and tactically useless at best, and actively counterproductive at worst).

While the committee never heard the issues I’d hoped to raise, several observers have written thoughtful pieces explaining why Brennan has not met the burden necessary to justify Senate confirmation as CIA Director. While they shed light on some important issues that Brennan has not resolved, several other questions remain. More below the jump….

The Washington Post‘s Dana Milbank correctly noted that:

The only people truly eager to press Brennan on the drone program were Code Pink demonstrators, whose heckling forced Feinstein, after multiple interruptions, to suspend the hearing and order all public spectators removed from the room. That overreaction left 140 seats empty and a created undesirable irony: A hearing that should have been about transparency instead ended in the exclusion of the public.

Some of the lawmakers’ reticence to press Brennan had to do with the classified nature of the program. But politics played a role. Republicans didn’t pry because they favor the targeted-killing program, and Democrats didn’t raise civil-liberties objections because Brennan is the nominee of a Democratic president.

According to Wired‘s Spencer Ackerman:

Brennan…said he hoped he could “optimize transparency” while at the same “optimiz[ing] secrecy” for the classified elements of the drone program. “It’s not one or the other, we have to optimize both of them,” he said. Brennan suggested the Obama administration ought to make more speeches explaining to the public what the targeted program is and isn’t.

Under questioning from Sen. Ron Wyden (D-Ore.), the Senate committee’s lead civil libertarian, Brennan said the government ought to acknowledge when it had mistakenly killed civilians during the targeted killings. “We can acknowledge it to our foreign partners” and “acknowledge it publicly.”

That acknowledgement has never happened in the 11 years since the United States first successfully weaponized a Predator drone.

Brennan’s choice of terms in considering the appropriate limits of executive secrecy struck investigative journalist Jeremy Scahill. He reported on Democracy Now:

[I]t’s like he’s talking about buying a used car and what…little gadgets and whistles it has on it. He used “optimize”? Ron Wyden was asking him about…about the extent of the CIA’s lethal authority against U.S. citizens, on U.S. soil and abroad.

[T]he problem is that while some questions were asked that are central questions, there was almost no follow-up….[S]enators wouldn’t push Brennan back when he would float things that were nonsensical or just gibberish…or using terms like “we need to optimize this, we need to optimize that.”

[T]his is a guy who is, for all practical purposes, President Obama’s hit man or assassination czar. This guy has been at the center of a secret process where the White House is deciding who lives and who dies around the world every day.

US Air Force Colonel (ret.) Morris Davis, who resigned his post as the chief military prosecutor at Guatanamo Bay after discovering the use of torture to coerce false confessions that would be inadmissible in legitimate courts (and in the interest of full disclosure, serves on BORDC’s advisory board), noted a little-observed dimension to the debate that, to this point, no one else in Washington has seemed to notice:

The CIA is a civilian agency with civilian employees and civilian contractors. It is not part of the US armed forces and its drone program is not immune from liability by the law of war principles that might apply to the military drone program.

The deliberate killing of another person is generally murder unless it is excused by some valid legal justification, like the law of war’s combatant immunity. For example, the United States charged Omar Khadr with committing murder in violation of the law of war for throwing a grenade and killing a US service member during a battle in Afghanistan…

Under what authority is the CIA legally excused for deliberately killing?

Another BORDC adviser, renowned law professor David Cole of the Georgetown University Law Center, wrote earlier this week:

How can we be free if our government has the power to kill us in secret? And how can sovereign authority be accountable to the people if the sovereign can refuse to own up to its actions?…

[I]f the government has the power to lock up its citizens without having to justify its actions to a court (as habeas corpus requires), all other rights are meaningless. If that’s true of detention without judicial review, it is even more true with respect to unacknowledged executive killing. We may think we are free to say what we want, exercise our religion and enjoy the protections of privacy, but none of those guarantees really exists if the president can order us killed in secret.

Despite closing yesterday’s hearing to the public and generally insulating the national security establishment from serious crimes like mass warrantless wiretapping, Senator Feinstein did at least argue in favor of secret courts to provide after-the-fact review of drone strikes, as did USA Today. While that approach would not suffice to address civil liberties concerns, but is at least a step forward from the current regime of total secrecy and unaccountability.

Having shared those perspectives, a number of others remained conspicuously absent.

First, Brennan faced not a single question about whether he would reign in the CIA’s violations of the law apparent in training the NYPD in domestic surveillance techniques. Despite violating a formal legal prohibition on conducting domestic surveillance activities, the Agency has evaded any accountability for it. On the one hand, the CIA has opened an inquiry into whether it violated the law by training the NYPD, whose abuses enabled a Pulitzer prize for the Associated Press after it ran a series of disturbing reports revealing NYPD spying well beyond New York. On the other hand, deferring to the CIA’s own judgment is like letting a fox guard a hen house. After all, this is the same agency that, when faced with criticism for torturing detainees into false confessions, destroyed the videotape evidence of the torture sessions rather than face prosecution. Brennan’s nomination presents an overdue opportunity for Senators to insist that the CIA get out of the domestic surveillance business.

To be fair, the CIA should probably get out of the business of foreign surveillance, too, given how poorly the Agency does its job.

While he was willing in the past to repudiate torture, Brennan developed a case of amnesia before the Intelligence Committee, refusing to admit that waterboarding has been acknowledged as torture around the world for the past 60 years. His disturbing refusal to acknowledge the illegality of the CIA’s recent interrogation practices suggests that torture could soon return to the CIA, threatening to spark more wars on false premises and lead to the deaths of more US servicemembers, contractors, and foreign civilians.

Repeating White House talking points as if they were news, some commentators have claimed that Brennan would represent an internal check on the CIA’s abuses. But at the risk of considering actual facts, Brennan is a 25 year veteran of the agency centrally responsible for creating al-Qaeda, back when its precursors were useful US proxies against the Soviet presence in Afghanistan. He is a creature of the CIA establishment, not a credible candidate to restrain its culture of secrecy and unaccountable failure.

The past decade has witnessed Washington shredding the Constitution at every opportunity, driven by domestic and international overreactions to the CIA’s surprisingly routine failures. Brennan’s nomination threatens more of the same.

The Senate should reject Brennan’s nomination and insist on a credible outside candidate to force needed reforms at the CIA. It should also enact legislation to prohibit assassination of US citizens without trial and create a secret court to review drone strikes.

Finally, before confirming anyone to serve as CIA Director, Senators should require the White House to declassify the Senate’s recent report condemning US human rights abuses in order to finally let the facts speak for themselves, support accountability, and ensure that torture does not rear its ugly head again.

Tags: accountability, CIA, Congress, drones, extrajudicial assassination, government secrecy, Senate Intelligence Committee, Senator Dianne Feinstein, torture, waterboarding

This entry was posted on Friday, February 8th, 2013 at 12:17 pm and is filed under Current Events. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.