This article appeared at The Nation on February 13, 2013.
The peace movement, human rights and civil liberties groups, Congressional progressives and even officials in the Obama administration can work on diverse pathways to prevent the consolidation of another Imperial Presidency.
The decade of the Global War on Terror, launched under President George W. Bush, and the “Long War Doctrine,” embraced by many in the Pentagon, have caused the undemocratic dynamic leading to the Imperial Presidency, which consists of rising scaffold of secrecy surrounding drone attacks, counterterrorism, detention, torture, CIA armies and cyber-warfare. As the national security leviathan grows, Congress, the mainstream media, and public opinion have been marginalized.
When similar crises boiled up during the Nixon era, Congress responded with the Watergate investigations and then the 1973 passage of the War Powers Resolution, which required that US military operations be reported to Congress and limited to 60-90 days unless explicitly authorized by the legislative branch. Next came the first serious Congressional hearings into CIA and FBI secret operations and domestic spying. Of particular interest was evidence of assassinations of foreign leaders carried out on executive orders. Those hearings by the Church committee in the Senate and Pike committee in the House resulted in the Senate Select Committee on Intelligence, which was to be a watchdog protecting the Constitution against abuse. Another result was an executive ban on assassinations of foreign leaders, an order issued by President Ford and later clarified by President Reagan in 1981. Another was the 1978 creation of the secret Foreign Intelligence Surveillance Court (FISC) mandated to issue warrants for domestic spying.
Three decades later, similar threats to democracy and constitutional process have come full circle in the period since September 11, 2001. The Senate watchdog committee, which held hearings last week, failed to prevent the emergence of torture, renditions, secret prison, assassinations, and military operations in which special units acted as judge, jury and executioner. President Obama ran for president in 2007-2008 opposed to many of these abuses; when elected, he carried out his pledge to end the US war in Iraq but was unable to close Guantanamo as promised, and has perpetuated secret operations and, increasingly, drone strikes in Afghanistan, Pakistan, Yemen and Somalia, resulting in hundreds, perhaps thousands, of civilian casualties.
The ice officially broke last week when the Senate Intelligence Committee opened the first serious public discussion over the drone strikes and executive secrecy in a decade. The clash was provoked because of the president’s nomination of John Brennan as CIA director, which the committee is expected to endorse this week. The hearing revealed that even members of the Intelligence Committee itself “are in the dark” about many details of the Agency’s programs. (New York Times, February 8, 2013)
But the significant public controversy represents an opening for reform once again. In fact, the President himself has been calling for unspecified constitutional safeguards over the very policies launched unilaterally, asking Congress to “rein in” the presidency. (The Daily Show, October 18, 2012) At the Senate hearing, Sen. Diane Feinstein (D-CA), the chairperson, and Sen. Angus King (ME) proposed a secret court to apparently approve future assassinations based on evidence provided by the White House. The new mechanism is to be modeled on the FISA court, which has turned down only about one percent of tens of thousands of wiretap requests.
The peace movement has been sidelined in these debates, partly because few in Congress have offered an alternative vision to rally the public around. That may change rapidly.
Perhaps the critics cannot be unified, but can pursue separate challenges against the official doctrine. Some of the elements of an alternative:
1. Immediately oppose the nomination of John Brennan and place Brennan’s promises on the record. There are differences about whether a “no” vote is effective or justified. An argument is being floated that Brennan, as an experienced insider, is best qualified to turn the Agency around from within. The most credible advocate for Brennan is perhaps United Nations Rapporteur Ben Emmerich, who is conducting a critical investigation of civilian killings from the drone strikes. But if Obama and Brennan want reform, that cause can only be helped by “no” votes from key senators. Or senators casting reluctant “aye” votes can explain publicly the terms and conditions of their vote, and not leave secret any agreements reached behind closed doors.
The plain case against Brennan is that he refused to describe torture as torture when asked by the committee, relying instead on Bush-era definitions of the term. He has been the lead coordinator of the White House “kill list.” Though he received 50 e-mails about the waterboarding of Abu Zubadayah in 2002, Brennan told the committee he was on the CIA’s management team or aware of any details torture techniques at the time. His testimony was so confused that at one point he called for optimizing both transparency and secrecy.
2. Opposing Feinstein’s proposal for a drone court. The Feinstein proposal would co-opt the judiciary into secret and one-sided procedures where due process would be scrapped and independent legal experts excluded.
3. Demanding disclosure of still-classified documents, which are sought by the Intelligence Committee and mainstream outlets such as the New York Times. These include 30 pages allegedly linking Anwar al-Awlaki to military operations, now provided the senators but not their staff or the media.
4. Demanding leniency or the release of whistleblowers such as Bradley Manning, Julian Assange and former CIA officer John Kiriakou, scheduled to begin 30 months in prison later this month for passing the name of a CIA officer to a reporter (who never published it). Kiriakou spoke out against waterboarding in 2007, and is expected to enter prison at just the time Brennan takes over the CIA. (New York Times, January 6, 2013)
5. More aggressive disclosure by the mainstream media. For example, it was only this week that the New York Times reported what it had long known, that Anwar al-Awlaki was killed by a drone launched by a new secret US base in Saudi Arabia.
6. The Pentagon versus the CIA. Human Rights Watch is among those who believe drone strikes and targeted killings should be under the Pentagon’s control, not the far more secretive CIA. The independent 9/11 Commission made the same recommendation in 2004.
7. Most importantly, Congress must consider revisions of the 1973 War Powers Resolution and the 2001 Authorization for Use of Military Force (AUMF).
The War Powers Resolution – passed during the waning Nixon era to prevent another open-ended war authorization like the Tonkin Gulf Resolution of 1964 – which was rushed forward by a near majority of Congress, has failed to prevent the spread of secret wars in the past decade. To their credit, over 200 House members including John Boehner, Dennis Kucinich and John Conyers, tried to implement the similar requirements against the administration over the 2011 Libya war, where US drones were being used. But the Resolution was written for an era of ground wars (“sustained fighting”), not for the emerging era of drone or cyber-warfare. It could be updated, including new provisions for public disclosure and new forms of warfare.
The Obama administration still clings to the AUMF, which passed in 2001, during a national state of panic following 9/11, with only a single objection, from Rep. Barbara Lee (D-CA). The original authorization was for a war against Al Qaeda, the Taliban and “associated forces” declared to be an imminent threat to the US. The war was launched against targets in Afghanistan and Pakistan, and then shifted to an invasion of Iraq where there was no evidence of an Al Qaeda presence at the time. It could be said that the Iraq invasion actually brought Al Qaeda to Iraq. From there the war has spread through Yemen, Somalia, Mali, the Philippines, Indonesia and, some would argue, underground cells in Europe. The administration asserts that Al Qaeda has been decimated along the way, yet also claims that Al Qaeda still is a virulent threat to the US. Defense intellectuals like David Kilcullen say this Long War is against Islamic jihadism, not simply Al Qaeda, and may require 50 to 80 years of continuous battle, or a period spanning 20 presidential and 40 congressional terms.
As a corollary of Long War thinking, Brennan and others argue that the war with Al Qaeda remains “continuous,” and justifies a new concept of “immanent threat,” also defined as continuous. Since “Al Qaeda” and its “associated forces” seem to be everywhere and anywhere, both defeated and resurgent, splintered and coherent, the traditional legal definition of a “threat of immanent attack” is being replaced unilaterally by Brennan’s elastic definition of an “immanent threat” as long as “Al Qaeda” exists somewhere on the planet. In this dark vision, all the insurgents from Timbuktu to Baluchistan are planning attacks on the United States, when in fact most of them are engaged in civil and tribal wars where the US has intervened.
Brennan’s doctrine, as declared in a September 16, 2011 speech, is worth careful exploration:
“over time, an increasing number of our international counterterrorism partners (NB, not judicial authorities) have begun to recognize that the traditional (NB, legal) conception of what constitutes an ‘imminent’ attack should be broadened in light of the modern-day capabilities, techniques and technological innovations of terrorist organizations.”
The elasticity of Brennan’s definitions extends also to “signature strikes” against presumed “enemies” as well, defined as any group of individuals engaged in a suspicious “pattern of activity,” like the 2007 executions of Reuters correspondents and civilians on the ground in a series of air-to-ground attacks by a team of US Apache helicopters, revealed by WikiLeaks in 2010.
An memorandum published by the official Congressional Research Service by Jennifer Elsea (May 4, 2012) lays out the issues Congress needs to confront. Elsea writes,
“…the Administration takes the position that targeted killings of foreign militants are not restricted to situations in which the target is planning, engaging in, or threatening an imminent armed attack against the United States.”
According to Elsea, these attacks can occur outside an “active battlefield,” and may be done in violation of another nation’s sovereignty.
Like the Cold War that preceded it, the Long War doctrine lumps multiple insurgencies and states into a monolithic enemy for purposes of mobilizing national anxiety and a permanent authorization for secret war. The Long War exacerbates the budgetary deficit, drains revenues from the domestic discretionary budget, diminishes the constitutional powers of Congress, covers up secret operations gone wrong, and erodes the public’s right to information and a voice in setting America’s priorities.
It is time to undertake a review and overhaul of the nation’s security policies since 9/11, or accept a state of secrecy as a long shadow over democracy’s future.
For more, please see also by Tom Hayden, "A Turning Point Against the Drone Policy."