13 Questions for John O. Brennan

President Obama’s nomination of his top counterterrorism adviser, John O. Brennan, to head the Central Intelligence Agency poses a genuine conundrum for those concerned about human rights.

On the one hand, Brennan is associated in one way or another with some of the most controversial and troubling aspects of US counterterrorism policies. He is the architect—and principal public defender—of President Obama’s expanded “targeted killing” policy, which has deployed unmanned drones to kill hundreds of suspected terrorists without charge or trial. He was deputy executive director of the CIA between 2001 and 2003, when the agency was engaged in “rendering” terror suspects to secret prisons, where they were “disappeared,” often for years, and subjected to torture and cruel, inhuman, and degrading treatment, including waterboarding, sleep deprivation, and physical abuse.

In December 2005, he described President Bush’s rendition program as “an absolutely vital tool” on PBS. And when the Associated Press revealed in 2011, in a Pulitzer Prize–winning series of articles, that the New York City Police Department had orchestrated an intensive spying campaign directed at Muslims, without any basis for suspicion of criminal, much less terrorist, activity, Brennan defended the NYPD for striking the right balance between civil liberties and national security.^*

On the other hand, credible accounts of the Obama White House’s internal workings describe Brennan as an influential defender of the rule of law and human rights. He has reportedly fought for greater transparency on the drone program, and has delivered some of the administration’s most revealing speeches about the program. He has sought to transfer implementation of the targeted killing program from the CIA to the military, which, unlike the CIA, has a culture of respect for the laws of war and the rules of engagement. He has argued forcefully for trying terrorists in civilian courts, and for closing Guantánamo. And he has been at the forefront of an effort to establish clear rules and procedures for targeted killing decisions—although it is surely disturbing if, as The New York Times reports, this effort only began in the past year, when the possibility emerged that a new president might take office, and has slowed in the wake of Obama’s election victory.

After leaving the CIA in August 2005, Brennan said that waterboarding “goes beyond the bounds of what a civilized society should employ.” In 2007, he told CBS News that the CIA interrogation program “saved lives,” but also that waterboarding is torture.

Who is the real John Brennan? The Senate’s confirmation power entails the responsibility to ensure that those nominated to the nation’s highest executive posts warrant our trust. That responsibility is nowhere more grave than in the case of the CIA. Because so much of what the agency does is necessarily hidden from public view, it is all the more essential that its director be rigorously vetted. In that spirit, here are thirteen questions Brennan should be asked to answer—on the public record—before he is confirmed.

1. You told The Washington Post, “I think the rule should be that if we’re going to take actions overseas that result in the deaths of people, the United States should take responsibility for that.” Yet the drone program remains the worst-kept official secret in the United States—prominently featured in the nation’s newspapers, discussed in vague terms by the administration, but still officially under wraps. Why hasn’t the administration disclosed the legal criteria and procedures that it uses for targeted killing? If the US is to “take responsibility for” the targeted killings, shouldn’t it be much more forthcoming about the legal and factual basis for its actions, the extent and causes of collateral harm to civilians, and whatever steps are taken to ensure that the actions comply with the laws of war? In order to assess the drone program, don’t we need much more information both about the numbers of innocent civilians who may have been killed, and also about the extent of anti-US resentment that these raids have caused both locally and more broadly? What kind of precedent are we setting for other nations by killing in secret?
2. You have reportedly been at the center of an effort started before the election to formalize the rules and procedures for targeted killings, but that process has not yet been completed. Don’t you think there should have been clear rules and fair procedures in place before the Obama administration ordered the killing of hundreds of human beings? The Washington Post reported on January 20 that even if the rules are adopted, the CIA will be exempted from following the rules in Pakistan. Why shouldn’t the CIA in Pakistan be obligated to follow the same rules deemed necessary for all other targeted killings? Isn’t this exception likely to engender even greater anti-US resentment in Pakistan?

3. Some have charged that the controversy associated with long-term detention has led the Obama administration to kill rather than capture. You have said that capture is always preferred, but the administration has reportedly killed hundreds of suspected terrorists outside Afghanistan since assuming office, while capturing only a handful. The Bush administration, by contrast, captured many more than it killed. How do you account for this shift? On what basis does the administration decide to use lethal military force rather than more traditional law enforcement measures or military detention?

4. Attorney General Eric Holder said, in a March 2012 speech at Northwestern University, that targeted killings outside of Afghanistan and Iraq take place only when capture is not “feasible,” a threat of attack is “imminent,” and the killing would result in a significant disruption of the plans and capabilities of al-Qaeda and its associated forces. But how do you determine when capture is not feasible? What if we might be able to capture a suspect but the operation would risk American lives, while killing the suspect with an unmanned drone will risk no loss of American life? Is that sufficient ground for concluding that capture is not feasible? If so, has the ease with which drones can kill others without risk to American life effectively changed the determination of feasibility?

5. You and other administration spokespersons have asserted that individuals can be killed in self-defense as an “imminent threat” not only when they are engaged in or about to engage in an armed attack against the United States, but also by virtue of their position in a group that seeks generally to attack the United States, even if they are not actually engaged in any ongoing or imminent operation at the time of the targeted killing. Doesn’t that definition of “imminence” defeat the purpose of the concept, which is to ensure that killing in self-defense is truly a last resort?

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6. It has been reported that, in addition to “personality strikes” against particular known individuals, the administration also uses more expansive “signature strikes” to kill unidentified individuals who show patterns of behavior characteristic of a particular militant or terrorist group. In what situations, beyond a traditional battlefield, is it appropriate to use such strikes? What constitutes a sufficient “signature” to warrant a strike?

7. In June 2011, you claimed that there had not been a single civilian death from US drone strikes in the past year. Yet the Bureau of Investigative Journalism reported in the same year that there had been forty-five civilians killed by drones in the past year, including six children. Do you stand by your claim? If the drone program is classified and that bars the US from disputing claims about civilian deaths, as some have said, why were you able to say in 2011 that there were no civilian casualties?

8. The New York Times reported in May 2012 that in assessing civilian casualties, the administration “in effect counts all military-age males in a strike zone as combatants…unless there is explicit intelligence posthumously proving them innocent.” That would be directly at odds with the rule of precaution in the law of war, which requires that individuals be presumed civilians where there is any doubt. Can you assure us that the US is complying with the precautionary principle?

9. Were you involved in the CIA’s enhanced interrogation program? When were you made aware of the program? If you believe, as you have said, that waterboarding is torture, what steps did you take to stop the CIA from engaging in such tactics?

10. The president, the attorney general, and you have all stated publicly that waterboarding is torture. The UN Convention Against Torture obligates us to refer for possible criminal prosecution any credible allegation that individuals within our jurisdiction have engaged in torture, and to make remedies available to victims of torture. As director of the CIA, what would you do to (1) support US compliance with these obligations in cases of past torture, and (2) ensure that torture will not occur, and that whistleblowers will be supported if it does, in the future? Isn’t the government in dereliction of its duty for failing to refer for possible prosecution those who designed and authorized waterboarding? Would you support a CIA apology to Khaled el-Masri, whom the CIA rendered from Macedonia to Afghanistan on the basis of mistaken identity, especially in light of the recent unanimous ruling by the European Court of Human Rights that he was tortured?

11. In April 2009, the Obama administration released several previously classified memos from the Office of Legal Counsel authorizing the CIA interrogation program, reasoning that since the program had been ended by the administration, the memos no longer needed to be classified. You are on record as supporting transparency, including with respect to sensitive and potentially controversial national security matters. What would you do to promote transparency as CIA director? Do you believe that the extensive Senate Select Intelligence Committee report on the CIA interrogation program should similarly be publicly disclosed? If not, why not? Will you pledge to scrutinize carefully any redactions your employees recommend for that report, to make sure they are in fact truly imperative?

12. The CIA necessarily engages in joint activities and information sharing with intelligence services in many countries that the State Department routinely accuses of using torture as a method of interrogation. The president, however, has made ensuring that the US does not participate in or contribute to torture a central tenet of his national security policy. As director of central intelligence, what would you do to ensure that the US does not provide information on a suspect to a nation known for employing torture if there is a risk that the nation’s security services will use torture against the suspect?

13. In 2011 and 2012, the Associated Press reported that the NYPD’s “Demographics Unit” targeted Muslim communities and mosques in New York and New Jersey for intrusive surveillance, including employing “mosque crawlers” who spied on religious places of worship and paying informants to “bait” Muslims into making inflammatory statements. The AP also reported that the NYPD Intelligence Division’s commanding officer, Thomas Galati, admitted that in six years of this extensive spying program, the Demographics Unit had developed no leads worthy of a criminal investigation, much less a prosecution. In light of those reports, why did you praise the NYPD for striking the right balance between civil liberties and national security, and say that “I have full confidence that the NYPD is doing things consistent with the law”?

John Brennan has operated behind closed doors at the White House for four years, and has been perhaps the single most important person shaping the administration’s counterterrorism policy. Before he moves to the even more secretive confines of Langley, where he will often be asking the American people to trust him and his agency to work beyond the reach of public scrutiny, we have the right to answers to these questions. But we’ll only have a chance to hear answers if the Senate Select Committee on Intelligence, chaired by Dianne Feinstein, has the courage to ask them, and to demand candid and public responses. It’s the least they can do.