CIA should not control drone strikes, says former Pentagon legal chief

The American public fears unchecked executive killing power, Pentagon's former top lawyer warns. Taimur Khan reports from New York

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New York // The Pentagon's former top lawyer has warned that proposals for a new court to review the assassinations of suspected terrorists by drones and other means would not do enough to quell public anger and mistrust over their deployment.
The remarks from Jeh Johnson come five weeks after John Brennan, who oversaw the CIA's expansion of the targeted killing, was forced to defend the drone programme during his confirmation hearings to become CIA director.
With the legal process around targeted killings, especially of Americans, "shrouded in secrecy ... many in the public fill the void by envisioning the worst", Mr Johnson said in a speech at a national security conference at New York's Fordham University on Monday.
He said the public saw "dark images" of officials "in the basement of the White House acting . as prosecutor, judge, jury and executioner".
Instead, he proposed that the military should take control of all drone and targeted-killing operations, rather than the CIA, because this would make the process more transparent and address legal concerns.
As the Department of Defence general counsel until the end of last year, Mr Johnson signed off on every targeted killing by the military throughout president Barack Obama's first term. As a supporter of the use of drone strikes under the framework of Congress-approved war powers, his speech offered a rare window into the thinking among those in the administration's inner circles.
There is growing consensus across the political spectrum, among civil liberties groups as well as conservatives in Washington, that something must be done to assuage fears about unchecked executive killing power.
Senior legislators and officials have floated the idea of a court similar to the one set up by the Foreign Intelligence Surveillance Act (Fisa), which provides oversight of national security wire tapping inside the US. A Fisa-style court would approve the administration's kill list.
But Mr Johnson argued that such a court would be fraught with practical and constitutional concerns. Judges are not equipped to approve or deny "death warrants" based on secret evidence submitted by only one side, the White House. The nature of the operations would also make it difficult for a judge to balance the intelligence against the imminence of the alleged threat.
"Judges are accustomed to making legal determinations based on a defined, settled set of facts - a picture that has already been painted, not a moving target," he said.
Mr Johnson added that the court would also infringe on the president's constitutionally mandated powers of national defence.
Crucially, the proposed drone court would have to work in secret, and like the Fisa court, which rarely denies government requests, would be seen as little more than a "rubber stamp".
Instead of a secret court, Mr Johnson proposed steps the administration should take to address questions around the legal parameters of its assassination operations.
He recommended more openness about such tactics, with Congress as well as the public, saying that after tough deliberations last year, the White House declassified the outline of US counterterrorist operations in Yemen and Somalia, "and, so far as I can tell, the world has not come to an end".
The controversial operations should be shifted from the CIA to the military, which would put the operations firmly within the war powers approved by Congress after the September 11 attacks and provide a stronger legal justification.
Mr Johnson refused to answer questions directly related to the CIA's drone programme, which carries out the majority of the strikes, mostly in Pakistan, but offered an implicit critism, saying, "targeted lethal force is at its least controversial and on its soundest legal footing when it is conducted by the US military as part of a congressionally authorised armed conflict".
A growing number of prominent national security legal scholars now say the justification for such frequent and widespread lethal counterterrorist operations is crumbling as the core of Al Qaeda has been destroyed and the US is now pursuing affiliated groups who do not necessarily target the US homeland.
Last year, Mr Johnson gave a speech at the Oxford Union, the famed debating society affilated with the University of Oxford, in which he described what the legal challenges would be once the War on Terror aimed at Osama bin Laden's original Al Qaeda ends, and the legal authority was no longer valid.
On Monday he was asked if this point had been reached and what the response should be. Mr Johnson said that he did not know if the threshold had been crossed because he was not privy to the current "threat stream", but that US leaders would need to make a decision on how to deal with future threats.
"As a country [do we] want a new Congressional [war] authorisation to deal with existing threats, or [do we] revert to a more traditional means [of] law enforcement, the intelligence community, and military for imminent threats?"
tkhan@thenational.ae
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