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Liveblogging Session 2: Keynote Address of Deputy National Security Advisor for Homeland Security, John O. Brennan

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Friday, September 16, 2011 at 5:21 PM

Professor Blum welcomes the audience back and invites Professor Dan Meltzer to introduce John Brennan. Meltzer provides a short biography for Brennan and notes that he has been a key actor in shaping the government’s response to 9/11.  He explains that Brennan is the principal official in charge of coordinating and implementing counterterrorism policies.  This includes monitoring the execution of sensitive operations, including the bin Laden raid, and dealing with our foreign counterparts.  Meltzer says that he contacted Brennan’s colleagues at the White House for some “stories.”  Unfortunately, according to Meltzer,  he did not get any.  Nevertheless,  the deep respect for Brennan among his colleagues is clear.  He is the “straightest of straight-shooters.”  He does not take credit for successes and when mistakes happen, he’ll step forward and take the blame,  even if he was not at fault.  In short, we could not be more fortunate to have him as our keynote speaker.

Brennan begins by thanking Meltzer for the service he has provided the nation, noting that he has had the privilege of sitting through many law tutorials, likely at a cost much less expensive than what students at HLS are paying.  He commends the efforts of the Program and appreciates being here for the inaugural event.

Brennan notes that he is not a lawyer, but the President’s senior advisor on homeland security and counterterrorism.  Nevertheless, he has a healthy appreciation for the key role played by our laws and values in strengthening national security.

Brennan explains that al-Qaida,  though severely crippled, still maintains the ability and intent to attack the United States.  Its allies and individuals who have succumbed to its ideology are additional threats.  The framework for dealing with this threat is guided by core principles.  First,  the government’s greatest role is protecting the American people.  Second, the United States will use all tools at its disposal.  Third, the U.S. is pragmatic,  not ideological.  Each threat will be addressed in the best way to advance our national security interests.  Fourth,  the United States will uphold core values that define us as Americans when we engage in all actions abroad, even covert actions.  Indeed, Brennan notes that President Obama has made clear that American values and law must guide all our counterterrorism actions. Upholding the rule of law provides a counterpoint to the “twisted view” offered by al-Qaida.  We must not cut corners and flout our values and law.

In keeping with our guiding principles, Brennan notes that Obama has been pragmatic.  When  past practices have been effective, they have been maintained.

Brennan states that our definition of the conflict is guided by law.  Obama has made clear that we are at war with al Qaeda.  The armed conflict is based on self defense.  The scope is not limited to Afghanistan.  The United States takes the legal position that we may take action against al Qaeda and asscioted forces without doing a self defense analysis.  When states are unwilling or unable, the United States will act.  However, international law does confine the United States in some ways.

Brennan notes that some allies disagree without the U.S. view of the battlefield–it’s just the hot battlefield. The U.S. approach, however, is far more aligned with our allies than often assumed.

Brennan states that the way in which we define “imminence” is important.  The structure of al Qaeda makes this quite difficult.  The traditional conception of what constitutes an imminent attack should be broadened,  given developments in technology and capabilities of our enemies.

Brennan says that authorities under the renewed PATRIOT Act are essential for protecting the American people.  At the same time, Executive power must be subject to oversight and checks.  Administrative steps have been taken “above and beyond what is required by law” to protect civil liberties.

Though some matters must remain classified, Brennan notes the efforts the Obama administration has taken to make the government,  especially intelligence activites, more transparent.  This includes the creation of an IC Inspector General, releasing the “Torture Memos,” and the creation of a new process to decide invocation of the state secrets privilege.  Brennan notes there has been criticism of the Administration on this issue, but he states that the power will only be asserted when it is necessary.

Brennan next discusses Guantanamo, noting that it has detracted from American prestige.  He states that it came as no surprise that few proposals had generated as much bi-partisan support as closing Guantanamo.  That was why Obama issued his executive order to close the facility; however, Brennan notes that Congress’s desire to close Guantanamo has waned.  But the Obama administration has made its view clear: Guantanamo undermines our national security.  For these reasons,  Brennan states,  the Administration will not send any more terrorists to Guantanamo.

Brennan next addresses the critique that the Administration does not have a “detention policy,” but rather would kill terrorists.  He states simply that this is “absurd.”  He emphasizes the importance of intelligence collection and thus whenever it is possible to capture a terrorist, that is the policy of this Administration.

He notes that it has been suggested that prosecuting terrorists in courts impedes intelligence collection.  The Administration disagrees.  Brennan explains that claims that Miranda warnings impede collection are also unwarranted.   He believes that the real danger is in not giving warnings. Brennan identifies the “public safety exception” and notes that applying it to terrorism can be complicated.  He explains that the FBI has sought to clarify to its agents when Miranda warnings should be given.

Brennan next takes up the argument that the Administration should rely solely on law of war detention.  He explains that the strengthening of the criminal justice system and the federal courts has lessened the need for law of war detention. The strong preference of the administration is to detain through the criminal process or through “reformed military commissions.”  It is the “firm position” that terrorists arrested inside the United States will be processed solely through the Article III courts.  Brennan emphasizes that the military does not police our streets and that Article III courts are more predictable and reliable in putting away terrorists than military courts.

Brennan says that the force of the criminal justice system has led to many hardened terrorists to cooperate with the United States and provide highly valuable intelligence.

Next, he states that there is strong consensus that U.S. citizens will not be tried by military courts.  In short,  Article III courts are not only the single most effective tool in prosecuting and sentencing terrorists, they’re a highly valuable tool in obtaining intelligence.  Brennan emphasizes that they must remain in the tool box.  Indeed, he explains, refusing to use them would undermine our values and our security.

At the same time,  Brennan notes that reformed military courts have a role to play as well.  When they are appropriate, they will be utilized.  A “rigid reliance” will be rejected.

Differences remain, Brennan notes.  He explains that after Warsame was captured, the national security team agreed that the best option was prosecution through the federal courts.  The Administration will focus on only one thing: how best to keep terrorists behind bars.

Brennan next focuses on the United States’ efforts to help other countries build robust legal networks.  He explains that this can serve as one of the most effective weapons to fight al Qaeda by eliminating “chaos” that allows terrorist groups to thrive.  But partners must comply with legal and ethical standards; Brennan states that we encourage our allies to build more just systems.  He points to the experience of the Arab Spring; where we see countries falling short of basic standards, the Obama administration will aid society’s efforts to build institutions that promote security.

In conclusion, Brennan states that the Obama administration’s framework can effectively deal with the threat from al Qaeda, its allies, and its adherents.  The approach is consistent with American law and values.  Some suggestions in Congress to adopt a new strategy, according to Brennan, would be less successful. He specifically notes the prohibition on the use of Article III courts and prohibiting the use of Miranda warnings.  Brennan is “deeply concerned” that this approach would undermine the United States and “do more harm than good.”  Counter-terrorism officials, according to Brennan, need flexibility.  Congress and the President, however, must continue to work together.  But we cannot tie counter-terrorism officials’ hands by limiting their tools.  Brennan says that we must not set aside our laws and values.  ”We’re better than  that.  We’re better than them.  We’re Americans.”

Brennan next will take a few questions.  The first is from Meltzer.  He notes the ongoing discussion over the scope of the AUMF and whether we must think of a new legal framework.  He asks if, looking to the future,  should we review the legal framework?  Brennan responds that we must constantly seek to update the framework.  He believes that the authorities under the AUMF provide the administration with the resources it needs to go after the threats it faces today.  Brennan especially notes the cyber threat and how the Administration is “struggling with” it.  The country must determine how it will deal  with the cyber threat.  But up to this point, the lack  of authorities has not been a problem.

The next question is from Deborah Pearlstein and has two-parts.  First, picking up on the first question, looks to the discussion over the expansion of the AUMF and the proposals to require military detention.  The questioner notes the Administration had planned to veto the “new” AUMF; is that still the position of the Administration, now that it’s attached to a broader defense authorization bill.  Second,  the Administration’s legal theory on targeting.  How and why are the practices separated between the military and intelligence community? We don’t know what the structure of the CIA is in protecting the rule of law.  How do you choose?

First, Brennan notes that the Administration has made clear what its views are.  It is strongly opposed to anything that would require placing anyone in military custody.  The Administration will fight in a way that encourages a cooperative dialogue, but it will fight.

On the issue of defense and covert action, or “Title 10 and Title 50″ authorities, there is the interagency lawyers’ group,  which will look at what is proposed and have a rich discussion about whether what is being proposed is consistent with the law or past practice. Brennan was disappointed with the NYT article this morning that made it sound like there is a great fight; Brennan notes that if lawyers are not debating, then they’re not behaving properly.  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.  When dealing with covert action, Brennan notes “that ‘c’ comes off very quickly.”

Next, Ben Wizner from the ACLU asks Brennan to address the Terrorism Watch Lists. He states that he understands the Administration’s desire to keep this list secret.  But Wizner does not understand why it is not possible to provide a process to clear the name of a person on a list who believes he is wrongfully on the list.  He believes that this system allows the government to provide less process when it has less evidence.

Brennan says that this is a great question and the Administration has debated the issue if American citizens should be able to find out if they’re on a watch list.  Brennan says this is where the balance of openness and civil liberties bump up against investigative efforts.  Brennan shares Wizner’s concerns and states that the issue remains under debate.

The next question focuses on Brennan’s time as Deputy Executive Director of the CIA from 2001-2003 and asks if he believed he was upholding American values and the rule of law at that time.  The questioner asks why those responsible for criminal acts have not been prosecuted and how can we claim that we are upholding the rule of law if they are not.

Brennan acknowledges that this was a period of the use of enhanced interrogation techniques; he notes that he was not in the chain of command and expressed his opposition. He concedes that he could have resigned,  but felt that he had a job to do to protect Americans.  He notes that it was a very difficult time, as the United States was under many and varied threats.  He says he did not agree with decisions made at the time, but understands the motives.

In response to the second question, Brennan believes that there has been a vigorous review of these activities.  Brennan but also seems to rely on the “legal advice defense.”  Nevertheless, he believes that if anyone engaged in illegal acts, they should be prosecuted.  He believes that motivations were pure,  but tactics could be debated.

In follow-up,  the questioner asks if there can be a rule of law if it can be defined so loosely.  Brennan believes that just because different interpretations of the law exists, that does not mean that there is no rule of law.  He says he takes the point; but when  some security threats are “so damn serious,” there can be shifts in our interpretation of the law.  Both truth and right are elusive concepts.

Jennifer Rizzo from CNN draws her first question from the NYT article today, asking about the differences between high level and low level targets in Yemen.  Brennan responds that AQAP has attacked our interests in Yemen and here in the homeland.  He says there are “part-timers” and full-time AQAP.  Similarly, Brennan explains that in al-Shabab, there are some who have an international perspective, while others are local.  There are elements in both groups that pose a threat to the United States; Brennan says that we are taking steps to deal with these threats.  Sometimes the targers are operators, but sometimes they’re higher-level.  Brennan says that the Administration’s interpretation of the law allows it to take actions against these groups associated with al Qaeda.

Rizzo’s second question involves Guantanamo and Bagram and any differences between them.  Brennan states, first, that Guantanamo belongs to the United States, whereas Bagram is in Afghanistan and our use of that facility is based on agreement with the Afghan government.  Brennan reiterates that the United States will not use Guantanamo.

The final question focuses on whether “corrective actions” should be taken against the lawyers who formulated the various torture policies.  Brennan states that one could argue that some legal memos were not really worthy of a lawyer; should the lawyer’s judgment be subject to sanction?  Brennan believes that this should be left to the professional organizations.  But he notes that if it’s just a different interpretation, then he fears the inhibition of contrary views.  Brennan says if something illegal or unethical was done, those attorneys should face sanctions.

With that Prof. Meltzer thanks the audience and day one of the conference comes to a close.  Tomorrow’s panels will begin at 9:30 AM and will be live-blogged as well.

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