National Security Elites Chuckle at Covert Bombs.John Brennan spoke at Harvard Law School on September 16 as part of the kickoff of a new branch of the national security state apparatus called the Harvard Law School Brookings Project on Law and Security. Brennan, who is the Deputy National Security Advisor for Homeland Security and Counterterrorism (as well as an Assistant to the President), gave the keynote address, titled "Strengthening our Security by Adhering to our Values and Laws," at the Project's first conference. The blogs Opinio Juris and Lawfare (now part of the Project) posted the text and the video of the speech respectively. If you're one of a handful of people intensely interested in the government's legal justification of things like firing missiles from drones at people in Pakistan, then by all means read the text. (Brennan is a terrible speaker, so don't watch it. I was listening to it as I was walking and still almost fell asleep.) But if not, please at least watch Brennan's response to a particular question.
Short set up of what Brennan said before the part I want to highlight, liberally borrowed from the Lawfare live-blog post: There are two different ways to deal with terrorist activity, either the military or covert action (led by the CIA). They are governed by two different sections of law - Title 10 for the military, Title 50 for covert operations. When discussing proposed actions and their legality, an interagency lawyers’ group (executive branch only) "has a rich discussion about whether what is being proposed is consistent with the law or past practice." The Administration wants to hear all the different views and perspectives. The legal framework established by Title 10 and Title 50 gives the boundaries, then the Administration makes a policy decision.
Either start the embedded video below and forward to 49 minutes, or watch it at YouTube here.
Here's the part that struck me:
Because things that we’re going to do, particularly in this day and age, when you know, covert action: that “c” falls off pretty quickly. [audience chuckles] And things come out in the papers, because of unfortunate leaks.That's a perfect illustration of how "covert" action is designed to be covert to the American people - they only find out about it through leaks to the press - while it is obviously very overt to the people being bombed. Doonesbury has a classic strip about this from November 10, 1973:I'm not breaking any new ground here. But I would like to delve into what could be the unconscious acceptance of the audience, made up of the elite of national security state commentators, to only consider our covert actions in relation to ourselves, not the victims of the bombs.
Now, I'm not going to condemn the people who laughed off-hand. Brennan had another small laugh line shortly before the covert part, and the chuckling was decidedly meager, possibly even nervous. I would like to know from people at the speech what they were thinking at that moment.
I've left comments at Opinio Juris on the text post, by Marty Lederman, and a post by the person posing the question Brennan was responding to, Deborah Pearlstein. Lederman and Pearlstein are on the civil liberties "side" of the national security debate. I am too, so I'm not trying to be confrontational here. (I don't know that I've succeeded.) After publishing this post, I'm going to email it to both of them, as well as another important voice in the debate, Benjamin Wittes, who is on the other "side" and whom I've corresponded with for a while. Wittes is also the co-director of the Project. And I'll try to find some more ways of engaging with those at the speech. The comment section is open. We'll see what happens.
Charlie Savage, At White House, Weighing Limits of Terror Fight, New York Times, September 16, 2011. Mentioned by Brennan in the speech.
Charlie Savage, Obama Adviser Discusses Using Military on Terrorists, New York Times, September 17, 2011. Savage's report on the speech. He was a presenter at the conference as well.
Marty Lederman, Importance of the Brennan Speech (I), Importance of the Brennan Speech (II), Opinio Juris, September 17, 2011.
Scott Horton, Brennan Does Yemen, Harper's, September 20, 2011.