John w.brennan

I especially want to thank Professor Gabriella Blum and Benjamin Wittes of the Brookings Institution for being the driving force behind your new Program on Law and Security. The preservation of our national security and the laws that define us as the United States of America demand that we understand the intersection of the two—indeed, how they reinforce one another. So I commend you for your efforts, we look forward to your contributions, and I very much appreciate the opportunity to be here for your inaugural event.

Good evening. Thank you, Dan, for your very kind introduction and for your service to our nation, in both the judicial and executive branches. At the White House, Dan helped us navigate some of the most complex legal issues related to our efforts to keep the American people safe. I know that President Obama is grateful for his service. And I am grateful for having had the opportunity to sit through his many law tutorials during national security meetings in the White House Situation Room. I dare say that those tutorials were a tad less expensive than what some of you currently are paying for his pearls of wisdom.

Now, I am not a lawyer, despite Dan’s best efforts. I am the President’s senior advisor on counterterrorism and homeland security. And in this capacity—and during more than thirty years working in intelligence and on behalf of our nation’s security—I’ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe. It’s an appreciation of course, understood by President Obama, who, as you may know, once spent a little time here. That’s what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.

Obviously, the death of Usama Bin Laden marked a strategic milestone in our effort to defeat al-Qa’ida. Unfortunately, Bin Laden's death, and the death and capture of many other al-Qa’ida leaders and operatives, does not mark the end of that terrorist organization or its efforts to attack the United States and other countries. Indeed, al-Qa’ida, its affiliates and its adherents remain the preeminent security threat to our nation. The core of al-Qa’ida—its leadership based in Pakistan—though severely crippled, still retains the intent and capability to attack the United States and our allies. Al-Qa’ida’s affiliates—in places like Pakistan, Yemen, and countries throughout Africa—carry out its murderous agenda. And al-Qa’ida adherents – individuals, sometimes with little or no contact with the group itself – have succumbed to its hateful ideology and work to facilitate or conduct attacks here in the United States, as we saw in the tragedy at Fort Hood.

Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law. And when I say “all our actions,” that includes covert actions, which we undertake under the authorities provided to us by Congress. President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values. For when we uphold the rule of law, governments around the globe are more likely to provide us with intelligence we need to disrupt ongoing plots, they’re more likely to join us in taking swift and decisive action against terrorists, and they’re more likely to turn over suspected terrorists who are plotting to attack us, along with the evidence needed to prosecute them.

In keeping with our guiding principles, the President’s approach has been pragmatic—neither a wholesale overhaul nor a wholesale retention of past practices. Where the methods and tactics of the previous administration have proven effective and enhanced our security, we have maintained them. Where they did not, we have taken concrete steps to get us back on course. Unfortunately, much of the debate around our counterterrorism policies has tended to obscure the extraordinary progress of the past few years. So with the time I have left, I want to touch on a few specific topics that illustrate how our adherence to the rule of law advances our national security.

For one thing, “international legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.” This is of a piece with the views repeatedly expressed by Harold Koh and others, as I explained here, that the Administration is committed to conducting the armed conflict in compliance with the laws of armed conflict, including Common Article 3 of the Geneva Conventions, fundamental customary law norms (e.g., the principles of distinction, proportionality, humanity and necessity), and, as Brennan stressed, norms of state sovereignty (including those in article 2(4) of the U.N. Charter), which generally prohibit the use of force in another sovereign state unless either that state consents, or the state’s government is “unwilling or unable to take the necessary actions” that are permitted to the U.S. under the doctrine of self-defense. [Even if Kevin is correct that the scope of the “unable and unwilling” doctrine remains subject to contestation, it is not news that the United States views it as applicable to self-defense against threats posed by nonstate actors taking sanctuary in states that are unable or unwilling to interdict the threat. A preview of Ashley Deeks’s forthcoming important paper on this question is here.]

Well, as Brennan elaborates, even those allies who would deny the expanded scope of the armed conflict beyond “hot battlefields” agree with the U.S. that a nation may use force in self-defense against an entity or state that is “planning, engaging in, or threatening an armed attack against U.S. interests,” even outside of the “hot battlefield,” if the threat of such action is “imminent.” (Again, such self-defense actions must comply with sovereignty and other international norms, such as the requirement that the response be necessary and proportionate vis-a-vis the future threat.) And Brennan explains that outside the “hot battlefields” the U.S. is not using force against enemy forces without discrimination among them, as it would be entitled to do in an armed conflict, but is instead hewing to what would be permissible if the U.S. were only acting on a self-defense theory, i.e., what would be permissible even in the absence of an armed conflict: “This Administration’s counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces.”

First, Brennan’s speech intriguingly suggests that, at least in practice, U.S. use of force outside the “hot battlefield” may be even more restrictive than a traditional self-defense model would indicate. He states that U.S. efforts in such locations “are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces.” Although this sentence does not indicate that such a “focus” is legally necessary, it hints that the threat assessment is typically made at the individualized level, rather than with respect to the organization as a whole, such that the force is employed against those representatives of the organization posing the threat, rather than at “forces” of the organization more broadly. (Of course, the legal requirements of necessity and proportionality associated with the self-defense doctrine may in some cases require such discrimination, in any event, depending on the circumstances. Moreover, as a simple strategic matter, where a terrorist organization consists both of discrete elements, or factions, that pose a threat to a nation state, and those that don’t (because they’re directed at other objectives), the nation state is more likely to concentrate its force in self-defense against those parts of the group that pose the threat, and not to those that don’t. It’s certainly possible Brennan’s sentence about individuals is explained by these two considerations.)

I always administer the Oath of Office in front of our Memorial Wall. There are...107 stars on that wall, each one representing an Agency hero who made the ultimate sacrifice on behalf of our Nation. And I emphasize that we all have a responsibility to remember the officers and the sacrifices represented by those stars, and to carry on their work in a way that would make them proud.

As I watch them raise their right hands, I feel an extraordinary sense of obligation to these officers. They have chosen a profession that is filled with great rewards, but also steep challenges, and sometimes grave danger. It is my job to prepare them for it. And from day one, I want them to understand that they are joining more than an organization; they are also joining a tradition of service and sacrifice unlike any other in Government.