TWO men loom large in the emerging shuffle in the cabinet of the now second-term President Barack Obama.
The first, John Brennan, who was previously the administration’s adviser for counterterrorism, will have confirmation hearings on Feb 7. The second, Republican Senator Chuck Hagel of Nebraska, will appear before the Senate Armed Services’ Committee for confirmation on Jan 31.
The appointments of Mr Brennan and Mr Hagel, while likely to occur, face opposition from both liberal Democrats and right-wing Republicans, and mark significant shifts in emerging American perspectives on warfare and intervention.
Mr Brennan, who stands to take over the helm of the Central Intelligence Agency (CIA), has through President Obama’s first term been the chief champion and architect of the drone programme. Having defended it and its legality at various forums, Mr Brennan has never in writing presented the legal opinions on its details. In preparation for the confirmation hearings, Senator Ron Wyden, a Democrat from Oregon, has raised the issue of this evasiveness in a public letter addressed to Mr Brennan, dated Jan 14.
Among other points, the letter reveals that despite repeated attempts, the senator has been unable to obtain legal opinions from the US Department of Justice relating to the killing of American citizens in counterterrorism operations.
Drone deaths in counter-terrorism operations have become part of an ongoing legal battle where American civil liberties’ groups have also tried and failed to obtain information.
On their radar is one particular 2011 strike in Yemen that killed Al Qaeda cleric Anwar al-Awlaki and his 16-year-old son. The justice department’s refusal to provide the documents demanded under a Freedom of Information Act request was recently upheld by a Manhattan judge.
Underneath the wrangling at the docket is the legal, constitutional question of whether the president can order the killing of American citizens without allowing them due process guaranteed to US citizens accused of a crime under the constitution.
The strike in Yemen also killed al-Awlaki’s son — he too was an American citizen. Critics suspect that the administration was aware of his presence but still approved the attack. If proven true, this would be equal to ordering the death of a US citizen who was not himself believed to be a threat.
Mr Brennan has got around this problem by arguing that everyone “of military age” (16 and over) in a combat situation is automatically classified as a “combatant” and not as a civilian casualty.
Whether or not Mr Brennan is asked these tough questions on Feb 7 is unknown and the likelihood that he will provide thorough or even legally revelatory answers is unlikely.
What is a near certainty given the completion of the formalities of his appointment is that under his command the militarisation of the CIA as a tool of American warfare — rather than a gatherer of human intelligence — is likely to continue.
For Pakistan, Yemen and all the other countries that fall under the unfortunate shadow of the US drone programme, this spells a future of American refusal to acknowledge civilian casualties, internal displacement and the international legal obfuscations that accompany them.
In realistic terms it also means a further imposition of the costs of eliminating terrorists on secret CIA lists on local populations that will have to bear civil and political unrest and/or mass reprisals without those killed ever being counted as casualties caused by the remote-controlled war waged by the US.
Evidence of this comes from recent reports that the CIA ‘playbook’ now being finalised by Mr Brennan will exempt drone strikes in Pakistan from the rules, allowing a law-free zone to continue the killings with impunity.
If the elevation of Mr Brennan to the helm of the CIA is one prong of the secret war preferred by President Obama, the latter’s selection for the secretary of defence, Mr Hagel, represents the other.
A veteran of the Vietnam War, he was one of the staunchest questioners of the Bush administration and its nation-building overtures when it was seeking permission to invade Iraq. In more recent years, he has criticised the Israeli lobby in Washington as “intimidating US lawmakers into blindly supporting Israeli positions”.
Unsurprisingly, Senator Hagel’s staunchest critics are neo-conservative Republicans who have been running a million-dollar television ad campaign against his confirmation, insisting that his non-interventionist approach would harm American national security.
From the Pakistani perspective, the selection of the non-interventionist, diplomacy-happy and generally pragmatic Hagel, a man who has seen war himself and is hence unlikely to rush to declare it, would be a good thing.
Those in Pakistan who have feared an expansion of the ground war in Afghanistan into Pakistani territory in an attempt for some last decisive flush of terrorist capabilities in the preamble to the final pullout of 2014 can breathe a bit easier after his selection.
As secretary of defence, and if his record and cautious approach is any forecast of the future, Mr Hagel is unlikely to push ground invasions into either Pakistan or — as the neo-conservative Republicans would like to have had it — Iran.
At the same time, any good news arriving with Mr Hagel’s nomination is largely outdone by the appointment of Mr Brennan, who will now have the entire machinery of the CIA with which to conduct a larger-scale surreptitious war that routinely evades national borders, legal obstacles and fails to count casualties by the sly obfuscation of definitions.
Already affected by drone attacks and unable to raise the devastation of their impact on the national stage, Pakistan — or rather, Pakistani civilians — will be left in this new Obama term as hapless and cornered as they were in the previous one.
The writer is an attorney teaching constitutional law and political philosophy.