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John Brennan Faces the Issue of the Drone War (Updated)

NBC investigative reporter Michael Isikoff got another major scoop last night. He posted online a secret Justice Department memo summarizing legal opinion given the White House for carrying out drone strikes against U.S. citizens abroad, leading to their immediate death without arrest, interrogation, or concerns for their constitutional rights. The 16-page memo, which you can read yourself in its entirety, says that a drone attack can take place if any “informed, high-level official” determines that a targeted individual “poses an imminent threat of violent attack against the United States,” if capture is not feasible, and when the operation can take place “in a manner consistent with applicable law of war principles.”

I have no objection to the use of drones if necessary, but one must consider the following problems concerning their use. There is always going to be major “collateral” damage, as when the al-Qaeda leader Anwar al-Awlaki was killed -- the drone also caused the death of another American who was a propagandist for al-Qaeda. In another strike, Awlaki's 16-year-old son was killed. When asked about that at a press conference, then-White House press secretary Robert Gibbs answered: “He should have had a more responsible father.” Both were U.S. citizens abroad. Even the old Russian anarchists, ready to kill members of the czar’s entourage with a roadside bomb, stopped in their tracks when they saw that the monarch’s carriage carried not only the ruler, but his young nephews.

As viewers of Homeland know, drone strikes kill many innocent civilians as well as the guilty targets, even when the subjects are not U.S. citizens. The three major terms of use, however, are rather vague and leave many other issues raised, but not answered. As Isikoff writes, the attacks can be ordered “even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” Isikoff writes:

The secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director. Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.” In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses “an imminent threat of violent attack.”

The legal brief, he explains, introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland. The memo states:

The condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.