Wanted: Angels

Clint Eastwood spoke to an empty chair at the Republican National Convention in Tampa last summer.

John Brennan spoke to more than 100 empty chairs at his confirmation hearing to become CIA Director Thursday afternoon.

There’s a reason aisle after aisle of chairs were abandoned. Their vacancy infused an almost absurdist atmosphere into the cavernous hearing room in the Hart Senate Office Building.

Unlike other Congressional hearing facilities, the expanse known as 216 Hart doubles as a television soundstage. It’s rigged with glass-enclosed, broadcast booths which peer down at the dais from above. They’re reminiscent of a press box looming above center ice at a professional hockey arena. Klieg lights droop from the ceiling, focused on the podium. Special camera wells are recessed into amber oak panels at the sides. The room is fortified with a colossal, white marble edifice, highlighted with streaks of charcoal. The wall doubles as the backdrop for the rostrum where the senators speak. A special window designed exclusively for television cameras stares out of the wall, directly below a gigantic United States Senate seal.

The chairs are where the public usually sits. Usually. But the public wasn’t there, relegated to another room in the Dirksen Senate Office Building next door where they would watch Brennan’s confirmation proceedings.

On television.

It wasn’t that the chairs were supposed to be empty or that the public wasn’t supposed to be there. They were. But this was a unique example of an open government – of the people – having to exclude some of the people – in an effort to do the people’s work.

A little strange isn’t it?

You can thank the Founders for that.

But in the end, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA) truly had no choice but to conduct the hearing in front of a room filled with empty chairs.

Brennan’s nomination as Director of Central Intelligence is controversial. While working at the Obama White House, Brennan helped engineer a secret government program where the U.S. can deploy drones to kill American citizens who may be involved in terrorism plots.

It’s one thing to kill an enemy when the U.S. is at war. It’s another for the government to take out an American citizen who may be fighting against the U.S. when the declaration for war in that asymmetric conflict is at question.

House Minority Whip Steny Hoyer (D-MD) said earlier in the week that during World War II, some Americans defected to Germany and Japan and took up arms against the United States.

“When we saw them on the battlefield, we killed them,” Hoyer said of those defectors. But Hoyer noted that it’s unclear what rubric of “war” authorization grants the U.S. to kill one of its own in these circumstances.

Is it the Authorization for Use of Military Force approved by Congress on September 14, 2001? The text of that law grants the U.S. the right to use “necessary and appropriate force” against those responsible for 9/11. That authorization is one area of murkiness when it comes to drone kills against U.S. citizens. But what is not so murky is the Fifth Amendment to the Constitution.

The Fifth Amendment states that “no person” shall “be deprived of life, liberty, or property, without due process of law.”

One argument is that those who pose a threat to the U.S. are treasonous and, in the post-9/11 environment, could be declared “enemy combatants.” But the Fifth Amendment makes this sticky since U.S. citizens are afforded the due process of law. Hence the outcry about drones and Brennan.

On September 30, 2011, the government dispatched a drone to kill American citizen Anwar al-Awlaki in Yemen. Al-Awlaki was a leader in al-Qaeda on the Arabian Peninsula. The U.S. never indicted al-Awlaki. But in 2010, President Obama placed al-Awlaki on a “kill list” of suspected terrorists. This was unprecedented for a U.S. citizen.

Feinstein knows all about al-Awlaki. But at Thursday’s hearing, she demonstrated why targeting American citizens involved in terrorism is so nettlesome.

“I wonder if you could tell us a little bit about Mr. Awlaki and what he had been doing,” said Feinstein to Brennan.

The nominee responded that in an open setting, he was “not going to talk about any particular operation or responsibility on the part of the U.S. government for anything whatever.”

Feinstein had proven her point.

“See, that’s the problem,” said Feinstein. “I think when people hear ‘American citizen,’ they think of somebody’s who’s upstanding and this man was not upstanding by a long shot.”

Feinstein then queried Brennan about al-Awlaki’s ties to the Christmas Day underwear bomber, Umar Faruq Abdulmutallab, possible links to the shooting at Fort Hood, TX and even his inspiration for Faisal Shahzad who tried to bomb Times Square in 2010.

Brennan hedged his answers about each incident.

“Senator, again, I’m not prepared to address the specifics of these,” Brennan stated.

But President Obama’s pick to be the nation’s top spy was crystal clear about one thing.

“Mr. Awlaki was a part of al-Qaeda and we’re at war with al-Qaeda and it was his strong determination to kill Americans on behalf of al-Qaeda,” Brennan declared.

Still, al-Awlaki is an American. Lawmakers from both sides of the aisle have serious questions about the legal justifications Brennan cooked up to justify killing Americans who may be involved in terrorism and what happened to the Fifth Amendment.

This is precisely why there were so many empty chairs in the Hart hearing room.

It’s just not lawmakers who have questions about the Fifth Amendment here. It was Operation Code Pink and other citizens who came to demonstrate against Brennan…or at the very least, listen to his comments on these issues.

It’s natural that government officials make clandestine decisions for the good of the people – even if they don’t publicly advertise the reasoning for those decisions. And sometimes, committee chairs need to make special decisions to so that government may conduct the people’s business – even if they have to exclude some of the people.

Boisterous protesters chanted, waving pink signs and placards before the hearing. The signs read “Brennan: a national security risk” and “Don’t drone me, bro.” They colored their right hands in red ink and raised them in unison with Brennan when Feinstein swore him in.

At the outset, Feinstein warned the crowd they were to remain passive observers or she would have them removed. But that made little difference to the demonstrators who immediately jumped out of their seats and hectored Brennan as he labored to make it through the initial lines of his opening statement. Perhaps rattled, Brennan pronounced the chair’s name “FINE-steen” and not “FINE-stine.”


An elderly woman stood first, bellowing.

“We’ll ask the police to remove this woman,” Feinstein directed.

U.S. Capitol Police officers moved in on the grandmotherly figure, standing in the first row.

“Careful,” the woman cautioned as police took her gingerly by the arm. “I just had my hip replaced. We don’t want to slip it out again.”

Brennan continued. Then 81-year-old Eve Tetaz took her feet and began droning about drones.

“If you would remove that individual, please, as quickly as you can,” Feinstein ordered.

And it started again.

“Are your children more important than children in Pakistan and Yemen?” screeched the next protester. “World peace depends on it. We are making enemies.”

Feinstein rose and leaned on her fists over the dais.

“The next time, we’re going to clear the chamber,” admonished the California Democrat. “The witness is entitled to be heard.”

And then 75-year-old Joanne Lingle began her diatribe.

“178 children killed by drones in Pakistan. And Mr. Brennan, if you don’t know who they are, I have a list,” Lingle proclaimed.

Lingle unfurled a long scroll of computer paper that streamed onto the floor.

That was enough for Feinstein.

“All right, we’re going to halt the hearing. I’m going to ask that the room be cleared and that the Code Pink associates not be permitted to come back in. Done this five times now and five times are enough,” Feinstein said.

A cordon of uniformed Capitol Police officers swarmed the demonstrators, a stash of white FlexiCuffs swinging from their belts. Senate Sergeant at Arms Terry Gainer materialized from the rear and strode briskly down the center aisle. Police arrested eight demonstrators. Three including Tetaz were 75 or older.

When Feinstein relaunched the hearing, all that remained were senators, staff, press, a few police, Brennan and some of his family members.

Feinstein had few other options but to shut down the hearing to the public in order to proceed. Senate aides escorted those who wished to see the hearing into a room in Dirksen where they watched on closed-circuit television. 216 Hart seemed vast and empty for a hearing of this magnitude and the seriousness of the questions that followed.

But there were no more interruptions and the sessions continued without incident.

Freshman Sen. Angus King (I-ME) didn’t get his crack at Brennan until late in the proceedings. And like many of his colleagues, King wanted to address drones.

“James Madison famously in the 51st Federalist said ‘If men and women were angels, we wouldn’t need a government. And if the government was run by angels, we wouldn’t need checks and balances.’ He concluded that angels were in as short supply then as they are today,” King said. “The Fifth Amendment is pretty clear. No deprivation of life, liberty or property without due process of law. And we’re depriving American citizens of their life when we target them with a drone attack.”

Hence the problem.

Madison asserted that government is essential to protect the people. But checks and balances must check government.

In the case of drones, lawmakers want to know where those checks come in – and whether the administration is running afoul of the Fifth Amendment.

In the case of the hearing, the Senate must exercise its authority of advising and consenting on presidential appointees like Brennan under Article II, Section 2 of the Constitution. By the same token, the public carries First Amendment rights of free speech and the ability “to petition the Government for a redress of grievances.”

Of course Code Pink asserted its First Amendment rights of speech and sought a redress of grievances of the drone policy at Brennan’s hearing. But Feinstein made an executive decision once the protests interfered with the Senate’s responsibilities of providing advice and consent on nominees.

Feinstein cleared the hearing, but not the press nor television cameras. And she permitted those still interested in the proceedings to quietly observe from a room not far away.

A perfect solution? That’s debatable. But Feinstein tried to balance several contradictory forces as set forth in the Constitution.

Those same antithetical Constitutional questions pose a problem for Brennan when it comes to drones. Brennan has a responsibility to protect the public. But where does that authority end when it comes to observing the Fifth Amendment – despite the goal of some Americans to kill their countrymen and spread terror? Moreover, what is the determination the government uses to arrive at that decision to truncate those rights…to say nothing of their lives?

Not just good people get to enjoy the privileges of the Fifth Amendment.

Men and women programmed drones to shoot to kill possible terrorists and also clear the hearing room. As Madison might say, the U.S. wouldn’t need drones if men and women were angels. And protesters wouldn’t have to disrupt hearings because the government would be run by angels – thus making the right decisions.

Both instances reflect the complexities of competing rights in the American system. And until the angels arrive, men and women will make those decisions.

As imperfect as they may be.