White House Stonewalls Congress On Memos Detailing Drone Strikes

The White House has signaled it is willing to make enormous political sacrifices and deep concessions to noisy partisan critics in order to ensure the continued secrecy of the government’s legal  justification for using drone strikes to kill suspected terrorists.

Having already been forced to offer a limited acknowledgement of the legal details behind the unprecedented use of drones to kill targets overseas — including American citizens — by the media leak of an unclassified Justice Department memo, advisers to President Obama are scrambling to thwart efforts by angry members of Congress to reveal more information on the administration’s drone protocol. Some Democrats have threatened to block the president’s nominee for CIA director, Obama’s former counterterrorism chief John Brennan, over the administration’s refusal to make all drone documents available to Congress.

To recap, the full scope of the drone programs run by the Pentagon and CIA has been the focus of speculation for years as the Obama administration took what was an embryonic arm of the global “war on terror” and transformed it into the centerpiece of American military strategy as the wars in Iraq and Afghanistan have ebbed. Controversy has swirled around the US drone program as strikes have increased and potentially hundreds of civilians have been killed in bombings by unmanned aerial vehicles in Pakitan, Afghanistan, Yemen and elsewhere.

Cloaked in secrecy, the true nature of the president’s reliance on drones was not fully revealed until earlier this month, when the media obtained a leaked memo laying out broad legal justifications for when and how lethal drone strikes can be ordered. The memo crated a stir for its casual transfer of authority to the president to order the deliberate killing of any American citizens who may be a “threat” even without ironclad proof through intelligence and other means.

 The White House and its critics faced off on Tuesday over the legality of drone strikes to kill U.S. citizens abroad, in a likely preview of arguments that will be raised during this week’s confirmation hearing for President Barack Obama’s choice to head the CIA.

The disclosure of an unclassified Justice Department memo laying out the legal framework for the U.S. government’s ability to attack its own citizens drew criticism from civil liberties groups. But the White House strongly defended the controversial policy as legal and ethical.

The unclassified memo, first obtained by NBC News, argues that drone strikes are justified under American law if a targeted U.S. citizen had “recently” been involved in “activities” posing a possible threat and provided that there is no evidence suggesting the individual “renounced or abandoned” such activities.

White House spokesman Jay Carney defended current U.S. drone policy, saying they are used to mitigate threats, stop plots, prevent future attacks and save American lives.

“These strikes are legal, they are ethical and they are wise,” he said.

Questions over President Obama’s use of drone strikes has seeped into broader debate over his cabinet nominees, including the confirmation process for the man selected to lead the CIA, John Brennan. With Brennan already under fire for his role in formulating the administration’s policy on drones and the leaked memo adding new concerns over presidential authority, lawmakers have used the confirmation hearings as a platform to dig deeper into the intricate legal web surrounding drone strikes and to pressure the White House to publicize more details about the program.

Angst on Capitol Hill over the administration’s stonewalling on drones has been bipartisan in nature, with Democrat Patrick Leahy and Republican Chuck Grassley of the Senate Judiciary Committee sending a formal request to the White House asking for the release of more legal memos on drone strikes.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking Republican Chuck Grassley (R-Iowa) are insisting that their panel should see the memos as well. They note that the Office of Legal Counsel, which drafted the memos, is part of the Justice Department—which is overseen by the Judiciary Committee.

“The deliberate killing of a United States citizen pursuant to a targeted operation authorized or aided by our Government raises significant constitutional and legal concerns that fall squarely within the jurisdiction of the Committee. Indeed, the analysis in the Department’s White Paper centers on core constitutional questions about the scope and application of the Fourth and Fifth Amendments, as well as the possible violation of federal criminal statutes. In addition, the Committee has direct oversight jurisdiction over the Department, including OLC,” Leahy and Grassley wrote in a letter sent to Obama Thursday (and posted here).

“We respectfully request that you direct the Department to promptly provide our Committee with access to unredacted copies of any and all legal opinions drafted by OLC that pertain to the targeted killing of U.S. citizens abroad,” Leahy and Grassley said.

Senate Intelligence Committee chairwoman Dianne Feinstein echoed the concerns of Leahy and Grassley, sending a nearly identical request for the release of more drone memos and taking the unusual step of delaying further confirmation hearings for a fellow Democrat’s cabinet nominee.

Thwarted by their fellow Democrats on the Senate Intelligence Committee and unsure if they would ultimately vote in favor of confirmation, the White House is now seeking an alternate route to install John Brennan as CIA direcotr with Republican support.

Determined to keep further secrets on legal reasoning for their drone policy, the New York Times is reporting that the administration is prepared to abandon some Democrats who have voiced a willingness to oppose the president’s  CIA nominee over the drone issue and court Republican senators by striking a deal that would cause considerable political embarrassment but preserve Brennan’s nomination.

In exchange for enough Republican votes to counteract Democrats angry over drone secrets and get Brennan’s nomination to the Senate floor, the White House is reportedly willing to release a trove of documents and intelligence concerning last September’s attack on the US consulate in Benghazi, Libya. The issue has become a particular favotie of conservatives and the “Tea Party” movement,with critics of the president alleging that the administration is engaged in a cover-up that could warrant impeachment.

Such a deal would represent a coup for Republicans and a considerable setback for President Obama, an indication of how precious and potentially damning the White House considers the full details of its legal policies on lethal drone strikes to be.

 The White House is refusing to share fully with Congress the legal opinions that justify targeted killings, while maneuvering to make sure its stance does not do anything to endanger the confirmation of John O. Brennan as C.I.A. director.

Rather than agreeing to some Democratic senators’ demands for full access to the classified legal memos on the targeted killing program, Obama administration officials are negotiating with Republicans to provide more information on the lethal attack last year on the American diplomatic compound in Benghazi, Libya, according to three Congressional staff members.

The strategy is intended to produce a bipartisan majority vote for Mr. Brennan in the Senate Intelligence Committee without giving its members seven additional legal opinions on targeted killing sought by senators and while protecting what the White House views as the confidentiality of the Justice Department’s legal advice to the president. It would allow Mr. Brennan’s nomination to go to the Senate floor even if one or two Democrats vote no to protest the refusal to share more legal memos.

At issue is the critical question of how Congress conducts oversight of a shadow war against people suspected of being terrorists. The administration routinely reports on its lethal drone strikes to both the Senate and the House Intelligence and Armed Services Committees, but it has long rebuffed Congressional attempts to see the legal opinions that authorize the strikes — let alone requests to make them public.

……

 The administration is currently in discussions with Republican members of the Intelligence Committee about providing the trail of e-mails that were the basis of “talking points” from the intelligence agencies regarding the Sept. 11 attack in Benghazi, which killed the American ambassador to Libya, J. Christopher Stevens, and three other Americans. Such a concession would probably win at least some Republican votes for Mr. Brennan.

While the White House balks at offering a public accounting of its drone program, the debate sparked by John Brennan’s hearings has produced small nuggets of information on America’s unmanned weaponry. Sen. Lindsey Graham of South Carolina told constituents at a Rotary Club meeting this week that drones are a “weapon that needs to be used” because of their great success, notably that “we’ve killed 4,700″ suspected terrorists.

As Micah Zenko points out for the Council on Foreign Relations blog, Graham’s observation is important because it marks the first official tally of how many deaths can be attributed to drones in the course of their use by the military and CIA. It also marks a significant increase — by more than 1200 deaths  – from unofficial figures compiled by journalists and human rights groups.

Yesterday, Senator Lindsey Graham, speaking to the Easley Rotary Club in Easley, South Carolina, offered a standard defense of drone strikes: “It’s a weapon that needs to be used. It’s a tactical weapon. A drone is an unmanned aerial vehicle that is now armed.” Graham also noted that without drones it would be hard to attack terrorists groups along the Afghanistan/Pakistan border, where “terrorists groups like the [Haqqani] network and Al-Shabaab are residing, very remote regions.” Forget that Al-Shabaab has never been reported to be in that region, Graham also maintained that the drone program “has been very effective.”

Graham then added: “We’ve killed 4,700. Sometimes you hit innocent people, and I hate that, but we’re at war, and we’ve taken out some very senior members of Al-Qaeda.” His estimate of the death toll of suspected terrorists and militants by U.S. nonbattlefield targeted killings is higher than any other reported. My report, Reforming U.S. Drone Strike Policies, compiled the averages found within the ranges provided by New America Foundation, Long War Journal, and The Bureau of Investigative Journalism (TBIJ) and produced a number about 1,200 fewer.